Opinion
NO. 2013-CA-001982-MR
06-05-2015
REX MELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Rex Melton, Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DAN KELLY, JUDGE
ACTION NO. 89-CR-00069
OPINION
AFFIRMING
BEFORE: MAZE, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Rex Melton, pro se, appeals from the denial of his motion for relief from an illegal sentence.
In 1990, following a jury trial, Melton was found guilty of first-degree assault and first-degree arson. Evidence was presented at trial that Melton and a co-defendant severely beat a victim with a bumper jack, confined him to the trunk of a car and then attempted to burn the car while the victim was still inside. Melton was sentenced to twenty-years' incarceration for the assault and thirty-years' incarceration for the arson, to be served consecutively. The circuit court denied Melton probation for a number of reasons including "due to the violent nature of the defendant's crime[,] . . . due to the provisions of KRS 533.060, the defendant is not eligible for probation[,] . . . [and due to the] [s]eriousness of offenses in that they almost resulted in death and in fact permanently rendered the victim disabled and confined to either a hospital or nursing home." Melton's convictions and sentences were affirmed on direct appeal.
Subsequently, Melton filed various motions for post conviction relief. In 1997, this Court affirmed a denial of his RCr 11.42 motion. In 2009, this Court affirmed the denial of his CR 60.02(e) motion determining his claims for relief should have been raised on direct appeal or in his previous RCr 11.42 motion and were not made within a reasonable time. Melton v. Commonwealth, No. 2008-CA-001271-MR, 2009 WL 485109 (Ky.App. 2009) (unpublished).
Melton now claims that his sentence requiring him to serve twenty-five years (50% of his total sentence) before being eligible for parole is illegal for two reasons: (1) he was erroneously designated as a violent offender under the arson conviction and should have been eligible for parole after ten years (20% of his total sentence); and (2) pursuant to Sanders v. Commonwealth, 844 S.W.2d 391, 394 (Ky. 1992), which provides that the version of KRS 439.3401 applicable to Melton requires that violent offenders serve 50% of a term of years or twelve years, whichever is less, before they are eligible for parole, required that he be eligible for parole after he served twelve-years' incarceration. The circuit court determined such ground for relief was untimely and should have been raised in his previous motions, and disagreed that Melton's crimes were non-violent. Additionally, the circuit court noted Melton's claim that his sentence was illegal because he was ineligible for parole until he served twenty-five years' was refuted by the record. Melton was brought before the parole board every two years starting in 2001, paroled in 2011, convicted of DUI and re-incarcerated, and then brought before the parole board again in 2013.
We affirm. Melton's motion seeks successive and untimely CR 60.02 relief. Melton's claims about parole eligibility were knowable after Sanders was decided more than two decades ago or when he was not brought before the parole board after serving what he believed was the amount of time required to be considered for parole. Melton has failed to provide any reason why he could not seek relief on these grounds earlier in his previous motions for post conviction relief. See Gross v. Commonwealth, 648 S.W.2d 853, 856-57 (Ky. 1983); McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
We also agree Melton failed to establish error in his sentence because there was a sufficient basis to establish Melton was a violent offender. Additionally, to the extent Melton had to wait an additional period for parole eligibility, any error was corrected once the parole board began considering him for parole and is moot.
Accordingly, we affirm Taylor Circuit Court's denial of Melton's motion for CR 60.02 relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Rex Melton, Pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky