Opinion
NO. 2015-CA-000967-MR
05-05-2017
KARL KRAUS, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karl Kraus, Jr. Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NOS. 02-CR-00018 AND 04-CR-00006 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. KRAMER, CHIEF JUDGE: Karl Kraus, Jr., proceeding pro se, appeals the Livingston Circuit Court's order denying his RCr 10.26 and RCr 10.06 motion for relief from the court's judgment. After a careful review of the record, we affirm.
Kentucky Rule of Criminal Procedure.
Kraus was indicted on two counts of first-degree rape, two counts of first-degree sodomy, and two counts of first-degree sexual abuse. One of the counts of first-degree sodomy was dismissed. Following a jury trial (i.e., trial #1), he was convicted of one count of first-degree sexual abuse, and a mistrial was declared regarding the remaining four counts because the jury was deadlocked. The jury recommended a sentence of five years of imprisonment for the first-degree sexual abuse conviction. The court sentenced him accordingly. Kraus appealed that conviction, and this Court affirmed the circuit court's judgment. See Kraus v. Commonwealth, No. 2004-CA-000183-MR, 2005 WL 790778, *1 (Ky. App. Apr. 8, 2005).
After the completion of trial #1, Kraus was indicted on one count of being a first-degree persistent felony offender (PFO-1st). A second jury trial (i.e., trial #2) was held concerning the counts for which a mistrial had been declared during trial #1. Following trial #2, Kraus was convicted of two counts of first-degree rape, one count of first-degree sodomy, and one count of first-degree sexual abuse. Prior to the sentencing phase of the trial, the parties reached an agreement concerning punishment, in which Kraus agreed, against counsel's advice, to the maximum term of imprisonment on all four counts. Therefore, he agreed to serve twenty years of imprisonment for each rape conviction and for the sodomy conviction, and to serve five years of imprisonment for the sexual abuse conviction, with all four sentences to run consecutively for a total of sixty-five years of imprisonment. Additionally, Kraus entered a guilty plea to the charge of PFO-1st, for which the Commonwealth recommended a sentence of life imprisonment. The court entered its judgment and sentenced Kraus to: twenty years of imprisonment for each count of first-degree rape; twenty years of imprisonment for the one count of first-degree sodomy; and five years of imprisonment for the one count of first-degree sexual abuse. All of these sentences were ordered to run consecutively for a total of sixty-five years of imprisonment, and this total sentence was enhanced to life imprisonment due to the PFO-1st conviction.
On direct appeal, the Kentucky Supreme Court affirmed the circuit court's judgment in a 3-3 decision without an opinion, and with one Justice not sitting. See Kraus v. Commonwealth, 2005-SC-000304-MR, *1 (Ky. Sept. 21, 2006) (order). Kraus then filed an RCr 11.42 motion to vacate his sentence. His motion was denied. Kraus appealed, and this Court affirmed the denial of his RCr 11.42 motion. See Kraus v. Commonwealth, No. 2007-CA-000802-MR, 2008 WL 2065803, *1 (Ky. App. May 16, 2008).
Kraus subsequently filed his first RCr 10.26 and RCr 10.06 motion, alleging that a substantial error had occurred during trial #2 when he was removed from the courtroom "and held incommunicado." He claimed that this violated his right "to be present during every critical stage of trial, as well as [his] right to be in continuous audio contact with his attorney." The circuit court denied the motion. Kraus appealed, and this Court dismissed the appeal as untimely filed. See Kraus v. Commonwealth, No. 2011-CA-000476-MR, *1 (Ky. App. July 18, 2011) (order dismissing appeal). Kraus appealed again, and the Kentucky Supreme Court denied discretionary review. See Kraus v. Commonwealth, No. 2012-SC-000207-D, *1 (Ky. Oct. 22, 2012) (discretionary review denied).
Kraus filed his second RCr 10.26 and RCr 10.06 motion in the circuit court in 2015. In that motion, he essentially argued that the circuit court had erred in denying his first RCr 10.26 and RCr 10.06 motion because, according to Kraus, the Commonwealth had not filed an "appellee's brief" in the circuit court in response to his first RCr 10.26 and RCr 10.06 motion and, pursuant to CR 76.12(8)(c), the court should have either accepted Kraus's statements of facts and issues as correct; reversed the judgment if Kraus's brief reasonably appeared to sustain such action; or regarded the Commonwealth's failure to file a brief as a confession of error and reverse the judgment without considering the merits of the case. Kraus also re-asserted the claims he had raised in his first RCr 10.26 and RCr 10.06 motion concerning his alleged removal from the courtroom; his right to confront witnesses; and his right to communicate with his attorney during trial. The circuit court denied Kraus's motion, reasoning that CR 76.12 only applies to appeals of cases, not to original actions in the circuit court; and reasoning that the remainder of Kraus's claims were already addressed in the court's order denying his first RCr 10.26 and RCr 10.06 motion.
Kentucky Rule of Civil Procedure. --------
Kraus now appeals, contending that: (a) his constitutional rights were violated when he was removed from the courtroom during the testimony of two witnesses via closed circuit television during trial; and (b) the circuit court erred in not abiding by CR 76.12(8)(c) in its ruling on Kraus's first RCr 10.26 and RCr 10.06 motion.
We agree with the circuit court's decision concerning Kraus's second RCr 10.26 and RCr 10.06 motion. First, Kraus's claim that his constitutional rights were violated when he was removed from the courtroom is a claim that he already raised in his first RCr 10.26 and RCr 10.06 motion, relief for which was denied by the circuit court, and the appeal of which was dismissed as untimely filed. Kraus cannot relitigate that same claim now. He had a chance to appeal it the first time around, but he failed to timely file his notice of appeal at that time. He is now foreclosed from raising this claim again. Second, as the circuit court found, CR 76.12(8)(c) applies to appeals, not to original actions in the circuit court. Therefore, CR 76.12(8)(c) was inapplicable in the circuit court proceeding. Consequently, Kraus's claims fail.
Accordingly, the order of the Livingston Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Karl Kraus, Jr.
Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky