Opinion
NO. 2012-CA-000389-MR
02-22-2013
JEFFERY CARPENTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jeffery Carpenter, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 00-CR-00042
OPINION
AFFIRMING
BEFORE: ACREE; CHIEF JUDGE; COMBS AND STUMBO, JUDGES. COMBS, JUDGE: Jeffery Carpenter, pro se, challenges an order of the Butler Circuit Court entered on January 23, 2012. That order denied Carpenter's second motion to vacate his sentence of imprisonment, a motion which he filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. The court also denied his second motion for resentencing. After our review, we affirm.
On August 10, 2000, Carpenter was indicted on thirty-one counts of sexual abuse in the first degree perpetrated against a minor under the age of twelve. Pending trial upon the sexual abuse charges, Carpenter was also charged with being a persistent felony offender in the first degree (PFO I). After the charges were consolidated, the Commonwealth agreed to dismiss all charges against Carpenter except two counts of sexual abuse in the first degree and the PFO I charge.
Carpenter was represented by counsel at trial and was found guilty of one count of first-degree sexual abuse and of being a first-degree persistent felony offender. He was sentenced to serve fifteen-years' imprisonment.
On direct appeal, Carpenter's conviction was affirmed by this Court in an opinion rendered on June 10, 2005. In that opinion, we held that Carpenter was not entitled to dismissal of the indictment because he had waived his right to a speedy trial by failing to object when the trial court set a trial date outside the 180-day period provided by statute. We also held that Carpenter failed to preserve his claim that the trial court erred in refusing to remove a prospective juror for cause. (Carpenter had not used a peremptory challenge to remove the disputed juror.) The Kentucky Supreme Court denied discretionary review on March 15, 2006.
During the pendency of his direct appeal, Carpenter, pro se, also filed a motion pursuant to the provisions of RCr 11.42. He presented seven grounds supporting his claim of ineffective assistance of trial counsel. He contended that his trial counsel erred in failing: to conduct a reasonable investigation of the charges against him; to call witnesses favorable to his case; to defend the PFO charge; to obtain an expert witness; to assert a speedy trial violation; and to preserve a claim of prosecutorial misconduct. The trial court denied the motion without a hearing.
On appeal, this Court vacated and remanded the case to the trial court. Upon remand, Carpenter, pro se, filed a motion to supplement his original RCr 11.42 motion. In this motion, filed on March 9, 2007, Carpenter sought to amend his original RCR 11.42 motion to include an additional claim for relief based upon the alleged ineffective assistance of his appellate counsel pursuant to Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010). Carpenter contended that his appellate counsel had failed to raise a number of issues related to specific objections made at trial and had failed to present to this Court correct documents and an accurate summary of the facts surrounding his motion (pro se) for a speedy trial.
However, in March of 2007, a claim of ineffective assistance of appellate counsel was not yet recognized in Kentucky. The record does not reflect the disposition of this motion by the trial court, and Carpenter states in his brief that the court never ruled on it. However, the trial court appointed counsel and conducted an evidentiary hearing based on the allegations included in the original RCr 11.42 motion.
Following the hearing, the trial court denied Carpenter's motion for relief, a ruling which this Court affirmed in an opinion rendered August 21, 2009. The Kentucky Supreme Court denied discretionary review on March 10, 2010.
Our opinion refers to Carpenter's motion, pro se, to supplement his original motion to add a claim for ineffective assistance of appellate counsel. However, our opinion does not discuss its ultimate disposition.
On March 3, 2010, Carpenter filed a motion requesting re-sentencing "in light of an updated and corrected PSI report." He complained that the trial court had failed to order an updated pre-sentence investigation report and sex offender pre-sentence evaluation before his original sentencing hearing. He argued that the pre-sentence investigation report relied upon by the trial court had been prepared in 1985 and that it contained inaccurate, incorrect, and outdated information.
On June 11, 2010, the trial court ordered that Carpenter undergo a sex offender pre-sentence evaluation. The court ordered that the evaluation "shall contain a recommendation related to the risk of a repeat offense by the Defendant and the Defendant's amenability to treatment." A hearing was conducted on August 10, 2010, and on August 24, the trial court's amended sentencing order was entered. Carpenter was again sentenced to fifteen-years' imprisonment. No appeal was filed from that order.
On August 8, 2011, Carpenter, pro se, filed another motion pursuant to the provisions of RCr 11.42. Relying on the then recent holding of the Supreme Court of Kentucky in Hollon v. Commonwealth, 334 S.W.3d 432 (Ky. 2011), Carpenter contended again that his direct appeal counsel had failed to provide him with effective assistance.
Additionally, on August 25, 2011, Carpenter, pro se, filed a motion requesting "a second round of resentencing in light of a Corrected Presentence Investigation Report." Carpenter contended that he was entitled to a second re-sentencing hearing since he had discovered that the pre-sentence investigation report that had been updated in 2010 contained additional inaccuracies. He contended that the re-sentencing proceeding (conducted in August 2010 by the trial court pursuant to his motion for relief filed March 3, 2010) was still erroneous.
Both motions were denied by the trial court in an order entered January 23, 2012. This appeal followed.
Carpenter first contends that the trial court erred by denying his claim for relief based upon the allegation that he received ineffective assistance of appellate counsel during his direct appeal. The Commonwealth contends that Carpenter cannot argue ineffectiveness of appellate counsel at this juncture because the allegedly deficient representation occurred years before Hollon was rendered.
In Hollon v. Commonwealth, supra, the Supreme Court of Kentucky overruled Hicks v. Commonwealth, 825 S.W.2d 280 (Ky. 1992), and similar cases that had held that a claim of ineffective assistance of direct appeal counsel was not recognized in Kentucky. The Hollon court held that ineffective assistance of direct appeal counsel "may henceforth be pursued by motion in the trial court of conviction under RCr 11.42." Id. at 439. (Emphasis added.) However, Hollon further held as follows:
Our ruling is to have prospective effect only. It applies to this case, to cases pending on appeal in which the issue has been raised and preserved, and to cases currently in or hereafter brought in the trial court in which the issue is raised. Prospective application is appropriate because, although our courts have not until now provided a forum for [ineffective assistance of appellate counsel] claims based on an allegedly inadequate appellate brief, the federal courts have provided a forum through habeas review. See Boykin v. Webb, [541 F.3d 638 (6th Cir. 2008)]. Kentucky defendants have not, therefore, been denied an opportunity to vindicate their right to effective appellate counsel, and there is thus no need for our decision today to reach back and operate retroactively.Id. at 439. (Emphasis added.) Because Carpenter's RCr 11.42 proceeding was decided and became final years prior to Hollon, he is barred from asserting his claim retroactively as dictated by the Hollon holding. Consequently, we cannot consider the merits of Carpenter's contentions regarding the performance of his appellate counsel.
Carpenter next contends that the trial court erred by denying his motion for a second re-sentencing hearing. He argues that inaccurate information was supplied to the trial court in the pre-sentence investigation report as updated for the first re-sentencing hearing of August 10, 2010.
As the Commonwealth points out, Carpenter's first re-sentencing was the result of his complaints about the contents of a pre-sentence investigation report. No appeal was taken from that proceeding. Carpenter's second motion contained similar complaints regarding the contents of the updated pre-sentence investigation report. In addition, Carpenter challenged the contents of the sex offender presentence evaluation upon the same basis. In light of this procedural history, we agree with the Commonwealth's contention that Carpenter is precluded from successively challenging the re-sentencing proceedings.
We affirm the order of the Butler Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffery Carpenter, pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky