Opinion
NO. 2013-CA-000334-MR
06-13-2014
McCLELLAN GAINES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: McClellan Gaines, pro se Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE JAY DELANEY, JUDGE
ACTION NO. 05-CR-00035
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. COMBS, JUDGE: McClellan Gaines, pro se, appeals the order of the Harrison Circuit Court which denied his motion for relief pursuant to Kentucky Rule[s] of Civil Procedure (CR) 60.02. After our review, we affirm.
On October 18, 2005, Gaines pleaded guilty to five counts of criminal possession of a forged instrument and one count of possession of a controlled substance in the first degree. He was sentenced to a total of five-years' incarceration to be served consecutively to a prior sentence. Gaines filed a direct appeal, but it was dismissed for failure to timely file a brief. He also filed a CR 60.02 motion in August 2012 that was denied. Rather than appealing, Gaines filed another CR 60.02 motion on October 24, 2012. The trial court denied the second motion on November 26, 2012. This appeal follows.
Gaines's sole argument is that his sentence erroneously exceeds the statutory limit according to Kentucky Revised Statute[s] (KRS) 218A.1415. We disagree. Application of a statute is a question of law. Thus, our review is de novo. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008).
Gaines correctly contends that KRS 218A.1415 was amended in 2011 to mandate a sentence limit of three years. However, he incorrectly argues that it should be applied to him retroactively. In support of his claims, Gaines relies on KRS 446.110, which provides that a law which would mitigate punishment is retroactive. However, it is limited to "any judgment pronounced after the new law takes effect." (Emphasis added.)
Gaines's judgment was pronounced in 2005. KRS 218A.1415 was amended in 2011 - six years later. Therefore, the reduced sentence is not applicable to him. See Rogers v. Commonwealth, 366 S.W.3d 446 (Ky. 2012).
Accordingly, we affirm the Harrison Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: McClellan Gaines, pro se
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky