Opinion
2023-CA-0656-MR
07-26-2024
JEFFERY CARPENTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jeffery Carpenter, pro se La Grange, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BUTLER CIRCUIT COURT HONORABLE PHILLIP PATTON, SPECIAL JUDGE ACTION NO. 00-CR-00042
BRIEF FOR APPELLANT:
Jeffery Carpenter, pro se
La Grange, Kentucky
BRIEF FOR APPELLEE:
Russell Coleman
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
OPINION
MCNEILL, JUDGE:
AFFIRMING
Jeffery Carpenter Brings this Appeal From A January 3, 2023 Order of the Butler Circuit Court Denying his Motion Brought Pursuant to CR60.02. Upon review, we affirm.
Kentucky Rule of Civil Procedure.
Carpenter was indicted on August 10, 2000, upon 31 counts of first-degree sexual abuse of a female under twelve years of age and with being a persistent felony offender (PFO) in the first degree. On April 17, 2003, following a jury trial, Carpenter was convicted of one count of sexual abuse in the first degree and found to be a PFO in the first degree. He was subsequently sentenced to fifteen-years' imprisonment. Carpenter's conviction was affirmed by this Court in an Opinion rendered June 10, 2005 (Appeal No. 2003-CA-001005-MR). Discretionary review was denied by the Kentucky Supreme Court.
Since then, Carpenter has filed numerous postconviction motions repeatedly seeking RCr 11.42 and CR 60.02 relief. We need not discuss their substance, as those motions have already been thoroughly documented in prior opinions of this Court. See, e.g., Carpenter v. Commonwealth, No. 2020-CA-0372-MR, 2021 WL 3116999 (Ky. App. Jul. 23, 2021); Carpenter v. Commonwealth, No. 2018-CA-000574-MR, 2019 WL 3370666 (Ky. App. Jul. 26, 2019); Carpenter v. Commonwealth, No. 2014-CA-000178-MR, 2015 WL 136037 (Ky. App. Jan. 9, 2015). The instant appeal involves his tenth CR 60.02 motion, which he filed on August 22, 2022. There, Carpenter asked the Butler Circuit Court to "correct" his "illegal sentence" because, in his view, his PFO conviction from 2003 had been improperly predicated upon two of his felony convictions, entered in Logan Circuit Court during the 1980's and 1990's, which he asserted were invalid.
Kentucky Rule of Criminal Procedure.
In sum, Carpenter believed his prior conviction of third-degree burglary in Logan Circuit Court Case No. 85-CR-00050 was illegal because, while he had entered a guilty plea to that offense in 1985, no judgment or sentencing order had been entered by the court in that matter until 1989. Therefore, he reasoned, his conviction in that matter had served as an improper predicate for his conviction of PFO in the second degree in his subsequent felony case in Logan Circuit Court - No. 89-CR-00094; and that latter case, in turn, had served as an improper predicate for his PFO in the first degree in the instant case. In his CR 60.02 motion, Carpenter asked the circuit court to review those predicate convictions; determine that they were illegal; and to accordingly vacate his PFO conviction and adjust his sentence.
But, the circuit court denied his motion because Carpenter had also been convicted of at least two other felonies prior to his indictment in the underlying matter and had been on parole for a felony conviction when he committed the underlying offense in the instant case. See Kentucky Revised Statute (KRS) 532.080(3)(c)2. Thus, it found Carpenter had been properly convicted of being a PFO in the first degree regardless.
Logan Circuit Court Case Nos. 83-CR-00032-003, 83-CR-00033-001, and 84-CR-00052.
Carpenter now appeals. We now affirm, and for two alternative reasons. First, we agree with the circuit court's analysis. Second, Carpenter's argument regarding the purported illegality of his predicate convictions was not, in any event, a proper ground for CR 60.02 relief. As our Supreme Court has explained:
In Commonwealth v. Gadd, 665 S.W.2d 915, 917 (Ky. 1984), this Court observed that the persistent felony offender statute requires that the prosecution prove only the fact of a previous conviction beyond a reasonable doubt; it does not require the Commonwealth to affirmatively prove the previous conviction was not obtained by constitutionally impermissible means. Accord McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky. 1994) ("KRS 532.080(2) and (3) require proof of the fact of 'previous felony convictions' and not their underlying validity."). The Gadd Court also declared a defendant must file a pretrial motion to challenge the constitutional validity of a prior felony conviction which serves as the basis for a persistent felony offender charge. 665 S.W.2d at 918. Specifically, the Court stated:
[The challenge to the validity of an earlier conviction] is a preliminary matter which is properly presented by a motion that must be made before trial as in [Kentucky Rule of Criminal Procedure (RCr)] 8.18. The defendant is apprised of the previous conviction that will be used against him by the face of the indictment. At this point, he should challenge by motion any conviction so appearing if he has evidence that it was obtained by means constitutionally impermissible. The decision to be made is one which is preliminary in nature. The question of some underlying constitutional
invalidity should be raised by the defendant and decided before the trial as a threshold issue to the admissibility of the evidence of conviction at the trial itself.
We have since clarified that collateral review of a prior felony conviction serving as the basis for PFO sentence enhancement is only available when a defendant claims a complete denial of counsel in the prior proceeding. See McGuire, 885 S.W.2d at 937; Commonwealth v. Fugate, 527 S.W.3d 43, 46 (Ky. 2017) (explicitly overruling Gadd, 665 S.W.2d 915, and Dunn v. Commonwealth, 703 S.W.2d 874 (Ky. 1985), to the extent they allow constitutional validity challenges to a prior conviction beyond the complete denial of counsel claim). However, the procedural requirement of a pretrial motion to challenge the prior conviction remains unchanged. See RCr 8.18.Bullitt v. Commonwealth, 595 S.W.3d 106, 112-13 (Ky. 2019).
In his brief before this Court, Carpenter makes no contention that he suffered a complete denial of counsel relative to any of his prior felony convictions - which is the only basis upon which he could have contested their validity. Id. He makes no contention that he preserved any such argument by filing a motion prior to his trial in 2003, as required. Id. More to the point, CR 60.02 motions cannot rest upon grounds that could have been asserted in a direct appeal or prior RCr 11.42 proceeding. See McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Carpenter offers no reason, and we discern no reason, justifying his failure to raise this argument in either his direct appeal of his underlying conviction, or perhaps at the latest his first RCr 11.42 motion - rather than what appears to be for the first time in this (his tenth) CR 60.02 motion.
Considering the foregoing, the circuit court appropriately denied Carpenter's CR 60.02 motion. As such, we AFFIRM.
ALL CONCUR.