Opinion
NO. 2017-CA-000176-MR
03-16-2018
BRIAN D. EDMONDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brian D. Edmonds, Pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 12-CR-000097 OPINION
AFFIRMING
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BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Brian D. Edmonds, pro se, appeals from an order of the Jefferson Circuit Court denying his motion filed pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. Edmunds argues his plea agreement is illegal and unenforceable because it could reasonably be interpreted to preclude him from not only filing a direct appeal, but from asserting any post-conviction claim, including any claims of ineffective assistance of counsel. Because Edmonds has not asserted a sufficient basis to sustain a motion under CR 60.02, we affirm the circuit court's denial of his motion without an evidentiary hearing.
Edmonds was found guilty by a jury of two counts of murder. He entered into a sentencing agreement with the Commonwealth in which he agreed to a life sentence without the possibility of parole for twenty-five years. In that agreement, Edmonds agreed "to waive any and all rights to appeal and any and all issues arising pretrial, during evidentiary hearings, trial, or other proceedings of this case." In accordance with the agreement, a final judgment of conviction and sentence was entered on December 21, 2015. On September 19, 2016, Edmonds filed a motion to vacate pursuant to CR 60.02(e) alleging that the waiver-of-appeal provision in the agreement was ambiguous and, therefore, the agreement was unenforceable.
"CR 60.02(e) provides an avenue by which a party may move the court to relieve it from a judgment, order, or proceeding on the basis that the judgment is void. A trial court's denial of a motion for CR 60.02 relief is reviewed for an abuse of discretion." Soileau v. Bowman, 382 S.W.3d 888, 890 (Ky.App. 2012). It is an extraordinary remedy. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). In Gross, the Court detailed the proper procedure which must be followed for post-conviction relief:
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in [Kentucky Rules of Criminal Procedure] RCr 11.42, and thereafter in CR 60.02.Id. A defendant is precluded from raising any issues under CR 60.02, if those same issues could have been reasonably presented in an RCr 11.42 proceeding. Id. at 857.
An evidentiary hearing is not required unless the movant "affirmatively allege[s] facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Id. at 856. Because "[t]he denial of CR 60.02 relief does not fall within the purview of CR 52.04," the circuit court is not required to make written findings and conclusions. Campbell v. Commonwealth, 316 S.W.3d 315, 320 (Ky.App. 2009).
The basis for Edmonds's argument is that the plea agreement is ambiguous and could reasonably include a waiver of his right to seek collateral relief. Citing basic contract principles, he urges this Court to conclude that the entire agreement is unenforceable. He points out that in U.S., ex rel. U.S. Attorneys ex rel. E. W. Districts of Kentucky v. Kentucky Bar Ass'n., 439 S.W.3d 136, 157-58 (Ky. 2014), the Court rules that "either defense counsel of prosecutors inserting into plea agreements waivers of collateral attack, including [ineffective-assistance-of-counsel claims], violates out Rules of Professional Conduct."
There are several problems with Edmonds's theory. The first is that even if the plea agreement waived all collateral attacks on the judgment, the remedy would be to permit the filing of such claims and, not as Edmonds suggests, a flaw that would render the judgment of sentence and conviction void warranting relief under CR 60.02. Moreover, there is no language in the plea agreement that waives Edmonds's right to collaterally attack the judgment. As the Commonwealth admits, the plea agreement does not preclude any post-conviction motions by Edmonds and only precludes a direct appeal. It is a common waiver of the right to a direct appeal found in plea agreements which has historically not been a barrier to collateral attacks. Some issues survive an express waiver of the right to appeal, including, "competency to plead guilty; whether the plea complied with the requirements of Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); subject matter jurisdiction and failure to charge a public offense; and sentencing issues." Grigsby v. Commonwealth., 302 S.W.3d 52, 54 (Ky. 2010) (quoting Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008)).
Because Edmonds is pro se, we are compelled to clarify. The plea agreement does not preclude Edmonds from seeking relief under RCr 11.42, but such motion must be filed within the time provided for in RCr 11.42(10). We hold that his motion filed pursuant to CR 60.02 was properly denied.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brian D. Edmonds, Pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky