Opinion
NO. 2019-CA-000180-MR NO. 2019-CA-000181-MR NO. 2019-CA-000191-MR NO. 2019-CA-000201-MR
04-17-2020
JAMES MILLER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: James E. Miller, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 16-CR-00382 APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 17-CR-00299 APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 17-CR-00301 APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 17-CR-00511 OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. JONES, JUDGE: James Miller, pro se, appeals from the Henderson Circuit Court's order denying the motion to modify his aggregate sentence pursuant to CR 60.02, entered December 27, 2018. Having reviewed the record in conjunction with all applicable legal authority, we affirm.
Kentucky Rules of Civil Procedure.
I. BACKGROUND
Miller is currently serving a total sentence of twenty-three years' imprisonment with the Department of Corrections for criminal convictions stemming from four separate indictments in Henderson County. First, in 16-CR-00382, the grand jury indicted Miller on a charge of first-degree possession of a controlled substance (methamphetamine) and several misdemeanors. Miller entered a guilty plea and received a three-year sentence, but he was thereafter granted shock probation on November 30, 2016. After Miller violated the terms of his probation by absconding and being terminated from drug court, the trial court revoked his probation on April 16, 2018.
Next, in 17-CR-00299, Miller was charged inter alia with second-degree possession of a forged instrument, identity theft, and being a persistent felony offender (PFO). Pursuant to a negotiated guilty plea, which dropped the PFO charge, Miller was convicted and sentenced to a term of five years' imprisonment on two felony counts, to be served concurrently with each other, but consecutively to his other sentences. The trial court entered final judgment on September 11, 2017, and granted Miller probation. Miller subsequently violated probation by failing to report to his probation officer and by committing new offenses. The trial court revoked his probation in this case on March 29, 2018.
In 17-CR-00301, the grand jury indicted Miller on three counts of second-degree possession of a forged instrument and being a PFO. Miller entered a negotiated guilty plea which dropped the PFO count. He was convicted and sentenced to a five-year term on each of the three felony counts, to be served concurrently with each other, but consecutively to the sentences in 16-CR-00382 and 17-CR-00299. The trial court entered final judgment and granted probation on September 11, 2017. Because of continuing violations, including absconding and failure to attend treatment, Miller's probation was revoked on February 12, 2018.
Finally, in 17-CR-00511, the grand jury indicted Miller with first-degree fleeing or evading, first-degree possession of a controlled substance, being a PFO, and several misdemeanors. Miller entered a guilty plea which amended the first-degree PFO charge to second-degree, and he agreed to serve an enhanced ten-year sentence on all charges. In its final judgment, entered February 19, 2018, the trial court ordered this sentence to run consecutively to Miller's other convictions.
Despite Miller's prior inability to conform himself to the requirements of probation, the trial court granted Miller shock probation in all four of his cases on June 22, 2018. Approximately two weeks later, Miller had once again violated his probation when he failed to attend substance abuse treatment and was arrested on new felony charges in Henderson County. The trial court gave Miller yet another opportunity to comply by ordering him to report to a substance abuse treatment facility in Bowling Green, Kentucky. Miller entered the facility on August 16, 2018, and absconded from the facility on September 3, 2018. As a result, the trial court received another report indicating Miller had violated the terms of his probation. After this last incident of noncompliance, the trial court revoked Miller's probation on September 26, 2018, and ordered him to serve the balance of his sentence with the Department of Corrections.
Approximately three months later, Miller moved the trial court to amend his sentence pursuant to CR 60.02. In his motion, Miller argued the Department of Corrections erroneously calculated the terms of his aggregate sentence at twenty-three years. Miller contended his sentence exceeded the maximum term of twenty years for Class D felonies under KRS 532.110 and KRS 532.080(6)(b). On December 27, 2018, the trial court denied Miller's motion without a hearing, finding Miller's issue to be without merit. The trial court also found Miller failed to demonstrate he was "entitled to the extraordinary relief contemplated by CR 60.02." This appeal followed.
Kentucky Revised Statutes. --------
II. ANALYSIS
"We review the denial of a CR 60.02 motion for an abuse of discretion." Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The burden of proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (citations and internal quotation marks omitted). "[W]e will affirm the lower court's decision unless there is a showing of some 'flagrant miscarriage of justice.'" Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
Miller presents four issues on appeal, three of which were not presented to the trial court below. We decline to consider those issues. "Our jurisprudence will not permit an appellant to feed one kettle of fish to the trial judge and another to the appellate court. See Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (citing [Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976))]. '[A]n appellant preserves for appellate review only those issues fairly brought to the attention of the trial court.' Id." Owens v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017)
With respect to the final issue, which Miller did raise before the trial court, he argues that his aggregate sentence should be amended to a maximum term of twenty years. The Commonwealth argues the trial court's denial of relief was proper because Miller should have raised this issue by direct appeal; therefore, the CR 60.02 motion is procedurally barred. In the alternative, the Commonwealth argues the issue is without merit, citing Johnson v. Commonwealth, 553 S.W.3d 213, 220 (Ky. 2018) (holding KRS 532.110 and KRS 532.080(6)(b) "do not extend to sentences resulting from previous cases").
We agree with the Commonwealth that Miller has presented no grounds for relief cognizable under CR 60.02. "CR 60.02 is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Miller's claims should have been brought in a direct appeal from the judgment. "CR 60.02 is not intended to provide relief for grounds that could be attacked through direct appeals or collateral motions such as grounds under RCr 11.42." Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017). Even if we were to consider the merits, we agree with the Commonwealth and the trial court that Johnson, 553 S.W.3d at 220, would be dispositive of Miller's underlying issue.
III. CONCLUSION
For the foregoing reasons, we affirm the Henderson Circuit Court's order denying relief pursuant to CR 60.02.
ALL CONCUR. BRIEFS FOR APPELLANT: James E. Miller, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky