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Carson v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Jun 12, 2020
NO. 2019-CA-000683-MR (Ky. Ct. App. Jun. 12, 2020)

Opinion

NO. 2019-CA-000683-MR

06-12-2020

MELVIN CARSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Melvin Carson, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 08-CR-00128 OPINION
AFFIRMING

** ** ** ** **

BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Melvin Carson, pro se, brings this appeal from an April 2, 2019, Order of the Henderson Circuit Court denying a Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate his sentence of imprisonment. We affirm.

On May 6, 2008, Carson was indicted by a Henderson County Grand Jury upon the offenses of first-degree robbery, second-degree robbery, second-degree criminal mischief, two counts of theft by unlawful taking over $300, and with being a persistent felony offender in the second degree. Instead of going to trial, Carson accepted a plea agreement with the Commonwealth. The essential terms were that the Commonwealth would recommend a total sentence of ten-years' imprisonment if Carson would pay $7,500 in restitution before sentencing; if Carson failed to pay the restitution, the Commonwealth would then recommend a total sentence of twenty-years' imprisonment.

The Supreme Court of Kentucky has approved plea agreements that contain restitution provisions. Commonwealth v. Morseman, 379 S.W.3d 144, 149-50 (Ky. 2012).

However, Carson was unable to raise the $7,500 in restitution before sentencing. Carson then entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). And, by judgment entered March 16, 2009, the circuit court sentenced Carson to a total of twenty-years' imprisonment per the agreement.

If Melvin Carson accepted the restitution offer and complied therewith, the first-degree robbery and persistent felony offender charges were to be dropped. --------

Thereafter, on January 19, 2011, Carson filed a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his sentence of imprisonment. The circuit court denied the RCr 11.42 motion by orders entered February 10, 2011, and February 15, 2011. Carson then appealed to the Court of Appeals. In Appeal No. 2011-CA-000649-MR, 2012 WL 4839020, the Court of Appeals, by Opinion rendered October 12, 2012, affirmed the circuit court's orders denying the RCr 11.42 motion.

Carson, pro se, then filed a CR 60.02 motion in the circuit court seeking to vacate his sentence of imprisonment. By order entered April 2, 2019, the circuit court denied the motion, thus precipitating this appeal.

Carson contends the circuit court erred by denying his CR 60.02 motion to vacate sentence. Carson is seeking relief under subsections (e) and (f) of CR 60.02. In particular, Carson alleges that his guilty plea was involuntary and double jeopardy prohibited charging him with two counts of theft by unlawful taking over $300. Carson also claims that the plea agreement with the Commonwealth was illusory and fraudulent as it was, in part, conditioned upon a $7,500 restitution payment. Carson also maintains that the circuit court erroneously "initiated, participated and permeated all plea discussions by acting inconsistent with constitutional due process, acting beyond the powers granted to it under law." Carson's Brief at 4-5.

A motion pursuant to CR 60.02 is one seeking relief extraordinary in nature and requires a "very substantial showing" to obtain relief thereunder. U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 541 (Ky. App. 2007). And, it is well-settled that CR 60.02 is not a substitute for a direct appeal or an RCr 11.42 motion. CR 60.02 relief is only available for issues that could not have been raised on direct appeal or in an RCr 11.42 motion. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). The denial of a motion under CR 60.02 is reviewed for an abuse of discretion. Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015).

In this appeal, Carson has set forth allegations concerning the involuntariness of his guilty plea, the violation of double jeopardy, and an "illusory" plea agreement. All of these allegations should have been raised on direct appeal or in a RCr 11.42 motion. Regardless, we completely agree with the circuit court's reasoning in its order denying CR 60.02 relief:

[A]fter a review of the record, the Court concludes that the defendant is not entitled to the extraordinary relief contemplated by CR 60.02. The plea agreement in this case was not "illusory" or "fraudulent" simply because the defendant could not, in the end, meet its terms. The fact that the Court would not give Carson another extension of his sentencing date does not mean the Court illegally predominated the plea negotiations. Further, review of the record demonstrates that the defendant understood the consequences of his agreement. Finally, the Court concludes that the argument that his conviction for two counts of theft violate the proscription against double jeopardy could or reasonably should have [been] raised in a prior proceeding. Even if the argument was properly made here, the Court cannot find it is meritorious. According to the criminal complaint, the theft counts were based on two bad checks Carson passed at the store he later robbed. Since the defendant pled guilty to the charges, there is no evidence to indicate that this was improper.
April 2, 2019, Order at 4 (citations omitted).

In addition, the circuit court noted that Carson's motion appeared to be untimely, having been filed more than ten years after his sentencing, and more than five years after the ruling on his RCr 11.42 motion. We agree. Carson gives no explanation why he delayed his filing under CR 60.02 and failed to establish why he is entitled to relief under CR 60.02(e) or (f). Accordingly, the circuit court did not abuse its discretion and properly denied Carson's CR 60.02 motion.

For the foregoing reasons, the Order of the Henderson Circuit Court is affirmed.

ALL CONCUR. BRIEFS FOR APPELLANT: Melvin Carson, Pro Se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Carson v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Jun 12, 2020
NO. 2019-CA-000683-MR (Ky. Ct. App. Jun. 12, 2020)
Case details for

Carson v. Commonwealth

Case Details

Full title:MELVIN CARSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jun 12, 2020

Citations

NO. 2019-CA-000683-MR (Ky. Ct. App. Jun. 12, 2020)