Opinion
NO. 2011-CA-002137-MR
11-16-2012
DANNY CHAMBERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Danny Chambers, pro se Eastern Kentucky Correctional Complex West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Office of Criminal Appeals Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LEE CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 92-CR-00040
OPINION
AFFRIMING
BEFORE: CLAYTON, KELLER, AND MAZE, JUDGES. CLAYTON, JUDGE: Danny Chambers, pro se, appeals from the Lee Circuit Court's denial of a Kentucky Rules of Civil Procedure (CR) 60.02 motion for an evidentiary hearing to correct his presentence investigation report (PSI) and order a new sentencing hearing. We affirm.
On November 23, 1992, Chambers was indicted by the Lee County grand jury for the murder of Larry Allen. He was tried by jury beginning on May 25, 1994, and found guilty. Although the jury was unable to agree during the penalty phase, the trial court sentenced Chambers to life imprisonment with the final judgment entered on July 13, 1994. The Kentucky Supreme Court in a unanimous, unpublished opinion affirmed the conviction. Chambers, then, filed a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate the judgment, which the trial court denied. Subsequently, our Court affirmed the trial court's denial of the RCr 11.42 motion, and the Kentucky Supreme Court denied Chambers's motion for discretionary review.
Since that time, Chambers has filed two other CR 60.02 motions to vacate the judgment. Our Court denied one motion on November 3, 2006, and the other motion on April 11, 2008. In those cases, we held that Chambers did not make the CR 60.02 motions within a reasonable time period. Here, Chambers has again made a motion for relief under CR 60.02, and the motion was denied by the Lee Circuit Court. The trial court, in denying the motion, noted that Chambers should have known about the problems with his PSI at an earlier date, and further, seventeen (17) years was not a reasonable time period to make such a motion under CR 60.02. It is from this opinion that Chambers now appeals.
In this appeal, Chambers argues that the trial court abused its discretion by failing to hold an evidentiary hearing regarding his CR 60.02 motion to correct his PSI and hold a new sentencing hearing. The Commonwealth counters that the trial court did not abuse its discretion when it denied Chambers's CR 60.02 motion because it does not fall under the ambit of CR 60.02, is untimely, and even if timely, he would not be entitled to relief.
By its own terms, "CR 60.02 is an extraordinary remedy[.]" Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). Because of the "high standard for granting a CR 60.02 motion, a trial court's ruling [is entitled to] great deference on appeal and will not be overturned except for an abuse of discretion." Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998).
Chambers explains the underlying reason for this CR 60.02 motion by detailing that in 2010, he requested a copy of his PSI in order to seek expungement for a dismissed case, No. 86-F-020. The charge in the dismissed case was recorded as assault in the first degree. Upon investigation, it was determined that this case actually involved another person, George Cornett, and the actual charge was for receiving stolen property, which is a non-violent offense. Interestingly, however, notwithstanding the inaccuracy in the PSI, the case in the report is a dismissed case, then and now.
In addition, Chambers points out discrepancies in case numbers 84-F-005 and 84-CR-019-1. According to him, the charges associated with these cases are actually for just one event. The charge listed is burglary in the first degree, a violent offense. He, however, maintains that related specifically to these charges, he was only tried and convicted under 84-CR-019-1 of criminal trespassing, a non-violent misdemeanor. Although technically Chambers is correct that he ultimately was convicted of criminal trespass, the jury instructions provided in that case indicate that he was originally charged with first-degree burglary and could have been convicted of first-degree or second-degree burglary as well as criminal trespass.
When Chambers learned about the mistakes in his PSI, he made the motion under CR 60.02(f) and 60.03 to have the PSI corrected and for a new sentencing hearing, which as noted above, was denied. The rules upon which Chambers relies are CR 60.02(f) and CR 60.03. CR 60.02(f) is as follows:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: . . . (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time[.]And CR 60.03 is as follows:
Rule 60.02 shall not limit the power of any court to entertain an independent action to relieve a person from a judgment, order or proceeding on appropriate equitable grounds. Relief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02, or would be barred because not brought in time under the provisions of that rule.In denying Chambers's motion, the trial court concluded that he had not moved under CR 60.02(f) "within a reasonable time" since seventeen (17) years had elapsed before Chambers made the argument that neither he nor his attorney had seen the PSI and did not have time to check the records to ensure their accuracy.
Relief from a final judgment is provided by CR 60.02 only when it is not available by direct appeal or under a motion to vacate. Winstead v. Commonwealth, 327 S.W.3d 479 (Ky. 2010). Therefore, only those issues that could not have been addressed in other proceedings are proper for review in a CR 60.02 motion. McQueen v. Commonwealth, 948 S.W.2d 415 (Ky. 1997). Contrary to the Commonwealth's argument, a motion to correct a PSI is in essence a motion for relief from a final judgment, and hence, is permitted under the language of CR 60.02.
But, as noted by the trial court, CR 60.02 requires on grounds (a), (b), and (c) that the motion not be brought more than one (1) year after the judgment and that motions made under the rule's other provisos be made within a reasonable time. Here, judgment was entered on July 13, 1994, and the CR 60.02 motion was filed on August 27, 2010, seventeen (17) years later. In Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), the Supreme Court of Kentucky held that five (5) years did not constitute a reasonable time under the purview of CR 60.02. In this case, seventeen (17) years have passed, and therefore, we agree with the trial court that seventeen (17) years does not fall within the purview of a reasonable amount of time. Although Chambers is right in asserting that no specific statutory time limit is given for motions under CR 60.02(f), such relief is limited to a reasonable time - seventeen (17) years is not reasonable under these circumstances.
Moreover, Chambers made his motion pursuant to CR 60.02(f), which necessitates that he provide something of an extraordinary nature to justify such relief. He has not done so. He has implied, without any evidentiary support, that he and his counsel did not see the PSI at the time of the trial. Additionally, he implies that he only had a sixth-grade education, which rendered it difficult for him to understand it. Notwithstanding his literacy at the time of sentencing, Chambers was represented by counsel. Chambers has not established any event or incident or action that is of an extraordinary nature and justifies this relief.
Chambers continually refers to the fact that the trial judge who sentenced him relied on the PSI. While this fact is true, it is not the only factor that was considered by the trial judge. In fact, the sentencing order, which Chambers quotes in his brief, states that "[h]aving given due consideration to the written report of the Division of Probation and Parole, and to the nature and circumstances of the crime, and to the history, character and condition of the defendant, the court is of the opinion: . . . ." Hence, while the PSI was one determinative factor used by the judge, he also considered many other relevant factors. Chambers's insistence that the jury deadlocking on the sentencing phase is an extraordinary factor is not convincing. Juries deadlock for a variety of reasons.
Lastly, the PSI's inaccuracies are not extraordinary either. The case ascribed to Chambers but which actually belonged to another defendant had been dismissed and was so listed on the report. The case for which he was convicted of criminal trespass had three (3) possible crimes for which he could have been convicted, including first-degree burglary. In the PSI column headlined "Date and Disposition," the correct punishment for the offense - "guilty verdict fine - $500.00" - is listed. This disposition, a fine, is an appropriate punishment for a misdemeanor. The trial judge who sentenced him would certainly have been versed in the meaning of the dispositions of both cases. And, again, all these things occurred in 1994, which would have been the appropriate time to directly appeal the issue.
Another issue regards whether Chambers and his counsel were entitled to a copy of the PSI. The Commonwealth states that the PSI is a privileged document and that Chambers was not even entitled to a copy of it. This is incorrect. In Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987), the Court held that although a defendant is entitled, under Kentucky Revised Statutes (KRS) 532.050, to be advised of the contents and conclusions of a PSI and have a fair opportunity to controvert them, a defendant is not entitled to receive a copy. But, since the decision in Bush, KRS 532.050 has been amended to provide that "[t]he court shall provide the defendant's counsel a copy of the [PSI]." 1990 Ky. Acts ch. 497, § 14. Nonetheless, Chambers in his reply brief argues that getting a copy of the PSI is not the issue. We concur. Therefore, this issue does not constitute a rationale for extraordinary relief under CR 60.02.
Lastly, Chambers's argument that the incorrect PSI is affecting his prison treatment and parole is without merit. The decisions regarding these issues are based on his conviction for murder.
Thus, the trial court did not abuse its discretion by denying Chambers's CR 60.02 motion. Discerning no reversible error, we affirm the September 27, 2011, order of the Lee Circuit Court denying Chambers's motion for post-conviction relief under CR 60.02.
ALL CONCUR. BRIEF FOR APPELLANT: Danny Chambers, pro se
Eastern Kentucky Correctional
Complex
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Office of Criminal Appeals
Frankfort, Kentucky