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Edwards v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Feb 12, 2016
NO. 2014-CA-002067-MR (Ky. Ct. App. Feb. 12, 2016)

Opinion

NO. 2014-CA-002067-MR

02-12-2016

MORRIS RICHARD EDWARDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Morris R. Edwards, pro se Kentucky State Reformatory LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
INDICTMENT NO. 146646 OPINION
AFFIRMING BEFORE: KRAMER, D. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Morris Richard Edwards appeals from a Final Order of the Jefferson Circuit Court rendered on October 14, 2014, denying his pro se Motion to Amend his sentence pursuant to CR 60.02, and from an Order denying his Motion to Reconsider. He contends that his sentence of two life terms in prison with the possibility of parole, which resulted from an Executive Order commuting the original sentence, is no longer consistent with the current penal code and must be amended. Because Edwards' motions are untimely, successive and without merit, we find no error and AFFIRM the orders on appeal.

Kentucky Rule of Civil Procedure.

In 1972, a jury convicted Edwards of multiple sex crimes against three victims and sentenced him to concurrent sentences of life imprisonment without the possibility of parole. The following year, he prosecuted a direct appeal before the Kentucky Supreme Court where he argued that the sentence constituted cruel and unusual punishment, the trial court abused its discretion in failing to sever the offenses for trial, and that the trial court improperly failed to postpone the trial for a competency hearing. Edwards v. Commonwealth, 500 S.W.2d 396 (Ky. 1973). The conviction was affirmed.

In July, 1978, Edwards filed a Motion to Vacate the sentence pursuant to RCr 11.42, wherein he alleged that African American jurors were improperly excluded, that the prosecutor and a police officer made improper comments regarding Edwards' right to remain silent and his prior arrests for multiple rapes, and the denial of a fair and impartial trial by the cumulative effect of these errors. None of these issues were raised on direct appeal, though all were preserved by objection at trial. The trial court denied the relief because an RCr 11.42 motion is not a substitute for an appeal. A panel of this Court affirmed the denial upon holding that a Motion to Vacate cannot be used to raise issues that could have been raised via direct appeal.

Kentucky Rule of Criminal Procedure.

The Kentucky Supreme Court denied discretionary review of this matter in 1981. Two years later, then Governor John Y. Brown, Jr. signed an Executive Order commuting Edwards' two life sentences without the possibility of parole to straight life sentences.

On December 31, 2007, Edwards mailed a pleading to the Jefferson Circuit Court Clerk styled "Successive Motion to Vacate, Correct or Set Aside Convictions and Sentences of Imprisonment Pursuant to RCr 11.42/CR 60.02(f), CR 60.03." Edwards again alleged errors in the jury selection and instructions, claims of ineffective assistance of counsel, trial errors, and claimed that his sentence - though commuted - was still cruel and unusual. The trial court denied the motion on February 17, 2009, as successive, untimely and without merit.

On March 12, 2009, the Clerk of the Kentucky Court of Appeals received a copy of a notice of appeal of the ordered entered on February 17, 2009. However, it was not until April 15, 2009, nearly 60 days after the entry of the February 17, 2009 Order, that the trial court entered the notice of appeal. The circuit court docket sheet did not reveal the date on which Edwards' documents were received or tendered.

A panel of this Court rendered an Order on April 27, 2009, giving Edwards an opportunity to show cause why his appeal should not be dismissed for failure to file a timely notice of appeal. Finding insufficient cause from Edwards' response, the panel dismissed the appeal.

Several months later in December of 2009, Edwards sought to resurrect the matter in Jefferson Circuit Court by way of a pro se motion styled "Kurtsinger motion for reinstatement of appeal proceedings nunc pro tunc." The motion for reinstatement offered no explanation for the delay between his mailing of the notice of the appeal to the circuit court and its filing of the notice of appeal. Edwards asked that the trial court enter a nunc pro tunc order based on this Court's receipt of a copy of the notice of appeal on March 12, 2009.

Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002).

On January 15, 2010, the Jefferson Circuit Court denied the motion for reinstatement noting that Edwards allowed four months to pass between the dismissal of his appeal by the Court of Appeals and the submission of his motion for reinstatement to the Jefferson Circuit Court. The matter was then appealed to another panel of this Court, which affirmed the order of the Jefferson Circuit Court denying the motion for reinstatement. The Kentucky Supreme Court denied discretionary review of the matter.

Finally on August 29, 2014, Edwards filed a pro se "Motion to Reconsider Pursuant to Rule 59.05 Denying Movant Relief Pursuant to CR 60.02." In this motion, Edwards argued that he is currently serving an "illegal and unconstitutional sentence." He asked the trial court to find this latest motion timely, and to relieve him from his current sentence. On October 14, 2014, the Jefferson Circuit Court denied the motion, and this appeal followed.

See Footnote 6.

Edwards now argues that the trial court abused its discretion and denied him due process of law when it failed to correct his "unauthorized" life sentence. The focus of his argument, as best we can discern, is that subsequent to then Governor Brown's commutation of Edwards' life sentence without the possibility of parole, the trial court had no constitutional authority to "legislate" the penalty of life in prison in violation of the Legislature's sentencing scheme under KRS 532.060 for a class B felony. Rather, he maintains that the maximum penalty at the time his sentence was commuted was 20 years in prison, and that the trial court's action in contrary to this provision was violative of his constitutional rights. Edwards directs our attention to various provisions of the Kentucky Revised Statutes, as well as to case law, in support of his contention that the Jefferson Circuit Court had no authority to impose the life sentence as a result of the Governor's lawful executive order. He seeks an Opinion remanding the matter to the circuit court with instructions to enter a sentence of no more than 20 years in prison.

Kentucky Revised Statute.

Edwards is appealing from an apparent Order of the Jefferson Circuit Court rendered on October 14, 2014, denying a successive and untimely pro se request to amend his sentence. We characterize it in this manner because the record contains neither this Order nor any Motion giving rise to the Order. The record does contain a pro se Motion to Reconsider filed on August 29, 2014, which was summarily denied by the trial court's handwritten notation entered on December 19, 2014. Edwards' Motion to Reconsider asserts that the basis of the trial court's Order was Edwards' filing of three prior post-conviction motions, "all of them requesting sentence modification in some manner."

The prior Opinion of this Court rendered on May 23, 2012, is found in the record at pp. 305-310. The next item appearing in the record at p. 311 of Volume II is Edwards' August 29, 2014 Motion to Reconsider. Edward's Motion to Amend his sentence, and the apparent October 14, 2014 Order denying same are not in the record. --------

It is an appellant's duty to designate the contents of the record on appeal. McDaniel v. Commonwealth, 341 S.W.3d 89, 96 (Ky. 2011). "It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Id., quoting Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). When applying this principle to the matter before us, we must assume that the missing portion of the record supports the Order on appeal. We may affirm the Order, and the circuit court's denial of the Motion to Reconsider, on this basis alone.

Arguendo, even if the record were complete, we would find no basis for reversing the Order on appeal. The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion. White v. Commonwealth, 32 S.W.3d 83 (Ky. App. 2000). Though we are without the benefit of a complete record, it appears that Edwards' 60.02 motion was denied as untimely, successive and without merit. This conclusion is supported by the record; therefore, it does not constitute an abuse of discretion. In commuting Edwards' sentence from two life terms without the possibility of parole to life in prison, Governor Brown relied on a recommendation of the Parole Board which noted that the sentencing statute in place at the time of Edwards' conviction had been amended. The new sentence of two life terms with the possibility of parole, to be served concurrently, was a proper sentence both at the time of Edwards' original sentencing and at the time of commutation.

Though Edwards has repeatedly challenged his judgment and sentence over the years that followed, there is nothing in the record or the law to support these claims for relief. As such, even if the Order on appeal were set forth in the record for our consideration, we would have no basis for granting the relief sought. Edwards has raised multiple post-judgment claims for relief, including a direct appeal to the Kentucky Supreme Court, claims for RCr 11.42 and CR 60.02 relief, appeals from the denials of those claims, and a motion for discretionary review before the Kentucky Supreme Court. He has presented no facts or case law in support of his claim that he should be allowed to continue litigating these matters in Jefferson Circuit Court. As we must presume that the incomplete record supports the Order denying Edwards' claim for relief, and as the claim is otherwise without merit, we find no error.

For the foregoing reasons, we AFFIRM the judgment of the Jefferson Circuit Court.

ALL CONCUR. BRIEFS FOR APPELLANT: Morris R. Edwards, pro se
Kentucky State Reformatory
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Edwards v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Feb 12, 2016
NO. 2014-CA-002067-MR (Ky. Ct. App. Feb. 12, 2016)
Case details for

Edwards v. Commonwealth

Case Details

Full title:MORRIS RICHARD EDWARDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Feb 12, 2016

Citations

NO. 2014-CA-002067-MR (Ky. Ct. App. Feb. 12, 2016)