Opinion
NO. 2015-CA-000883-MR
06-30-2017
CHRIS DOUGLAS HAWKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Chris D. Hawkins, Pro Se Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 99-CR-002929 MEMORANDUM OPINION AFFIRMING
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BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES. Chris D. Hawkins brings this pro se appeal of an Order of the Jefferson Circuit Court entered April 8, 2015, denying his motion for post-conviction relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. After a careful review of the record on appeal and applicable law, we affirm.
On August 31, 2000, Hawkins was sentenced to ten-years' imprisonment following a guilty plea to one count of theft of a prescription blank, two counts of possession of a forged prescription and being a persistent felony offender in the first degree.
On March 18, 2015, Hawkins filed a "Motion to Correct Sentence" pursuant to CR 60.02 in the Jefferson Circuit Court. The circuit court denied the motion on the grounds that it was untimely filed, that Hawkins' claims should have been raised under Kentucky Rules of Criminal Procedure (RCr) 11.42, and that any equitable claims asserted in the motion were without merit. This appeal follows.
The record on appeal reflects that Chris D. Hawkins did not file a Kentucky Rules of Criminal Procedure 11.42 motion after his conviction in 2000. --------
We begin by noting that CR 60.02 "may be utilized only in extraordinary situations when relief is not available on direct appeal or under RCr 11.42." Foley v. Com., 425 S.W.3d 880, 884 (Ky. 2014). The denial of a motion under CR 60.02 is reviewed for an abuse of discretion. Diaz v. Com., 479 S.W.3d 90 (Ky. App. 2015). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999). And, any motions filed under CR 60.02(e) and (f) must be brought within a reasonable time after the judgment has been entered. CR 60.02; See Com. v. Spaulding, 991 S.W.2d 651 (Ky. 1999).
The circuit court held that Hawkins' motion was untimely filed under CR 60.02. Our Supreme Court has previously ruled that a trial court did not abuse its discretion in holding that a CR 60.02(f) motion was untimely filed five years after the judgment was entered. Gross v. Com., 648 S.W.2d 853 (Ky. 1983). In Graves v. Commonwealth, 283 S.W.3d 252 (Ky. App. 2009) this Court discussed the timeliness of a motion under CR 60.02:
A motion made pursuant to CR 60.02(f) must be brought within a "reasonable time" and will be granted only when there are "extraordinary circumstances justifying relief." Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007). Graves has not demonstrated extraordinary circumstances, nor has he explained the more than seven-year delay in moving to set aside his wanton murder conviction. In Reyna, a delay of only four years was deemed unreasonable. Here, Graves[] waited nearly twice that long to assert his guilty plea was invalid. We hold the court below did not abuse its discretion.Id. at 257.
In this case, the circuit court thoroughly addressed the issues raised in Hawkins' motion and the applicable law in its order. The circuit court stated:
First, motions under CR 60.02(e) and (f) are to be made within "a reasonable time." Respondent entered his guilty plea and was sentenced over fourteen years ago. The reasons supporting his motion were known to the Defendant at the time or shortly thereafter. The Commonwealth's offer on a plea of guilty was ten years, with "probation to be left in court's discretion." Clearly, the documents signed by the Defendant, reflect that he was eligible for probation. At the close of the plea, Respondent's counsel acknowledged that his client was eligible for probation but wished to waive a separate sentencing, as it was unlikely that Respondent would be probated. The judge then explained that ordinarily the court would obtain a pre-sentence investigation (PSI) and assign a separate date. When asked by the Court if he wished to waive separate sentencing, Respondent stated that he did. The Court then asked if Respondent's
counsel wished to make any other statements before sentencing, and he did not. Respondent made no objection. Respondent's counsel filed a motion for shock probation, and a hearing on the matter was held on April 11, 2001. The Court finds that the record reflects that Respondent was aware of his eligibility for probation and knowingly and voluntarily waived his right to the preparation of the PSI. The Court finds a fourteen-year delay to raise an issue he was aware of at the time of the plea is presumptively unreasonable.
Additionally, any ineffective assistance of counsel claims should have been filed pursuant to RCr11.42, and the time for so doing has long since passed. The Court notes that Respondent received the minimum sentence for the charged offenses, and in exchange for his plea, the Commonwealth agreed not to pursue a felony indictment on additional pending charges. The Commonwealth additionally agreed that the sentence could run concurrently with Indiana charges Respondent was facing. There is nothing in the record that indicates that counsel was ineffective in his advice to Respondent.
The Court finds no merit to Respondent's claims that the sentence is no longer equitable. As noted above, Respondent received the minimum sentence, along with additional consideration, in exchange for his plea. Respondent had a significant record at the time, and has had an additional felony conviction since. The Court finds that this is not a case which requires the extraordinary remedy sought by Respondent.
We totally agree with the circuit court's analysis and adopt the same as part of our Opinion in this appeal. Accordingly, the circuit court did not abuse its discretion in denying Hawkins' CR 60.02 motion.
For the foregoing reasons, the Order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Chris D. Hawkins, Pro Se
Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky