Opinion
NO. 2011-CA-002208-MR
03-08-2013
JAMES HIGHTOWER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: James Hightower, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 03-CR-00342
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: James Dale Hightower brings this appeal pro se from a McCracken Circuit Court order denying his motion made pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 and Kentucky Rules of Criminal Procedure (RCr) 10.26. We affirm.
In 2003, Hightower entered a plea of guilty to one count each of first-degree attempted rape, kidnapping, and being a persistent felony offender in the second degree (PFO II). The plea was entered without benefit of an agreement with the Commonwealth. On February 25, 2003, the trial court sentenced Hightower to ten years for attempted rape, and twenty years for kidnapping, enhanced to life imprisonment by virtue of his status as a PFO II.
In 2004, Hightower filed a motion to set aside his conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. The trial court's denial of that motion was affirmed on appeal. Hightower v. Commonwealth, 2005 WL 2323472 (Ky. App. 2005). A panel of this Court held that the record clearly refuted Hightower's allegations of ineffective assistance of counsel in entering his guilty plea.
On January 23, 2007, Hightower filed a CR 60.02 motion challenging the constitutionality of his conviction on the basis of insufficient evidence. The motion was denied by the trial court. The ruling was affirmed on appeal. Hightower v. Commonwealth, 2008 WL 540887 (Ky. App. 2008).
On November 10, 2011, Hightower filed his second post-conviction challenge pursuant to CR 60.02. The trial court denied the motion, finding that it failed to meet the burdens of CR 60.02(e) and (f) and RCr 10.26, and that it was not made within a reasonable time. This appeal followed.
We review the denial of a CR 60.02 motion for an abuse of discretion. Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted).
Hightower argues that the trial court abused its discretion in ruling that his motion was not made "within a reasonable time," as required for motions brought under subsections (d), (e) and (f) of CR 60.02. Hightower's motion was filed over seven years after the final judgment was entered in his case. He nonetheless contends that his motion was timely because he began litigating the issue of the sufficiency of the evidence underpinning his conviction in 2007, when he filed his first CR 60.02 motion, but that the courts have continually denied him relief on the grounds of time limitation. In Hightower v. Commonwealth, 2008 WL 540887 (Ky. App. 2008), the opinion which affirmed the denial of that first CR 60.02 motion, a panel of this Court not only held that the motion was untimely, but further explained that Hightower had "expressly waived any objection concerning the sufficiency of the evidence by voluntarily entering a plea of guilty." The opinion quoted the following passage from Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986):
A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged. By such an admission, a convicted appellant forfeits the right to protest at some later date that the state could not have proven that he committed the crimes to which he pled guilty.
The motion which is the subject of the current appeal raises the same argument regarding the sufficiency of the evidence which was resolved in the earlier appeal. It may not be raised again. The law of the case doctrine is "an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been." Brooks v. Lexington-Fayette Urban County Housing Authority, 244 S.W.3d 747, 751 (Ky. App. 2007) (internal citation omitted). "Obviously, the law of the case doctrine is intended to prevent defendants from endlessly litigating the same issue in appeal after appeal." Commonwealth v. Tamme, 83 S.W.3d 465, 468 (Ky. 2002). Although Hightower argues that he is a pro se litigant and therefore entitled to some leniency, his arguments regarding the sufficiency of the evidence are barred from our consideration, not only because he entered a valid guilty plea, but also because the issue was raised and decided in a prior appeal.
Hightower's second argument concerns an alleged sentencing error. Sentencing errors are jurisdictional and may be raised at any time. Gaither v. Commonwealth, 963 S.W.2d 621, 622 (Ky. 1997). He contends that the trial court illegally enhanced the sentence for first-degree attempted rape, a Class C felony, to life imprisonment. The trial court's final judgment ordered Hightower
to serve a sentence of ten (10) years on Count 1, First Degree Attempted Rape, twenty (20) years on Count 2, Kidnapping to run consecutive for a total of thirty (30) years and LIFE on Count 3, Second Degree Persistent Felony Offender, Enhancement to run in lieu of the thirty
(30) years on Counts 1 and 2 for a total sentence of Life imprisonment[.]
Kentucky Revised Statutes (KRS) 532.080(5) provides that "[a] person who is found to be a persistent felony offender in the second degree shall be sentenced to an indeterminate term of imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next highest degree than the offense for which convicted." Because Hightower was convicted of kidnapping, a Class B felony under KRS 509.040(2), he was subject to the sentencing provisions for a Class A felony. KRS 532.060(2) specifically authorizes sentences for Class A felonies of "not less than twenty years nor more than fifty (50) years, or life imprisonment." Thus, the imposition of an enhanced sentence of life imprisonment was not erroneous. His related claim, that he suffered ineffective assistance of counsel as proven by his entry of a guilty plea with erroneous sentencing provisions, is therefore also without merit.
For the foregoing reasons, the order denying Hightower's post-conviction motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James Hightower, pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky