Opinion
NO. 2019-CA-000334-MR
02-14-2020
JERMAINE JACKSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Jermaine Jackson, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 01-CR-002604 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER AND MAZE, JUDGES. KRAMER, JUDGE: In 2004, Jermaine Jackson entered an agreement with the Commonwealth to plead guilty in Jefferson Circuit Court to murder and robbery in the first degree in exchange for the Commonwealth's promise to recommend a sentence of life without the possibility of parole for twenty-five years, as opposed to the death penalty. His agreement with the Commonwealth further stated in relevant part:
5. I understand that if I plead "GUILTY," the Court may impose any punishment within the range provided by law and that although it may consider the Commonwealth's recommendation, the Court may reject it. . . .
6. I understand that if the Court rejects the plea agreement, it must so inform me. If this occurs, I may either persist in my guilty plea and possibly receive harsher treatment than I bargained for or I may withdraw my guilty plea and proceed to trial. . . .
Shortly thereafter, Jackson entered his guilty plea. The circuit court accepted it, sentencing him consistently with the Commonwealth's recommendation.
On July 23, 2018, Jackson then filed a CR 60.02 motion asking the circuit court to vacate its judgment because, in his view, he had been coerced into entering his guilty plea and his guilty plea was therefore void. In his motion, he summarized his argument as follows:
Kentucky Rule of Civil Procedure.
The unconstitutional "Hobson's Choice" Jackson was subjected to was directly related to sentencing - plead guilty and receive a sentence of LWOP for 25, or go to trial and possibly receive the death penalty - a premise which constitutes an error of law . . . with the resulting judgment of sentence arrived at thereunder being is [sic] illegal and cannot be enforced, requiring vacatur of the judgment of sentence.
Upon consideration, the circuit court denied his motion on two grounds. First, it held that because Jackson could have raised his argument in a direct appeal, it was improper and provided no basis for CR 60.02 relief. Second, it held that Jackson's argument regarding coercion was in any event baseless, explaining in relevant part:
The penalty range for a conviction for murder in Kentucky was (and is) the same irrespective of whether a defendant invoked his right to have a jury determine his guilt or innocence. Mr. Jackson faced a difficult choice regarding whether or not to go to trial; but that Hobson's Choice was created by the evidence, not by the statute. Whether he chose to plead guilty or not guilty, and whether he chose to be tried by the Court or by a jury, he faced the same range of consequences, viz., 20 years to death.
Jackson now appeals, once again raising his coercion argument set forth above.
We discern no error. The circuit court correctly determined Jackson's motion was improper because his argument could have been raised in a direct appeal. See McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Moreover, Jackson's guilty plea was not invalid, much less void, due to coercion. As the circuit court and Jackson's plea agreement noted, the circuit court was not obligated to accept the Commonwealth's recommendation. See RCr 8.10. And, the lack of a jury trial would not have prohibited the circuit court from nevertheless imposing the death penalty. See, e.g., Commonwealth v. Johnson, 910 S.W.2d 229, 231 (Ky. 1995) (explaining all parties may, as occurred here, agree to allow the trial court to impose final sentencing without the participation of a jury, even if the death penalty is a possible punishment).
Kentucky Rule of Criminal Procedure. --------
We therefore AFFIRM.
ALL CONCUR. BRIEFS FOR APPELLANT: Jermaine Jackson, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky