Opinion
NO. 2011-CA-002223-MR
06-21-2013
TERRY D. MILLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Terry D. Mills Pro se La Grange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 02-CR-00037
OPINION
AFFIRMING
BEFORE: MOORE, NICKELL, AND TAYLOR, JUDGES. MOORE, JUDGE: Terry D. Mills appeals the McCracken Circuit Court's order denying his CR 60.02 motion to amend the judgment against him. After a careful review of the record, we affirm because Mills could have raised his present claims in his prior CR 60.02 motion, and he did not bring his claims within a reasonable period of time.
Kentucky Rule(s) of Civil Procedure.
In 2002, Mills entered a guilty plea to the following charges: (1) manufacturing methamphetamine, with firearm enhancement; (2) possession of drug paraphernalia, with firearm enhancement; (3) first-degree possession of a controlled substance, methamphetamine, with firearm enhancement; (4) possession of a handgun by a convicted felon; (5) theft by unlawful taking under $300.00; (6) possession of marijuana, with firearm enhancement; and (7) first-degree persistent felony offender (PFO-1st). Mills was sentenced to serve a total of twenty years of imprisonment, and his sentence was ordered to run consecutively with sentences he received in other cases.
Mills filed his first CR 60.02 motion in 2003, and it was denied. He appealed, and this Court affirmed the denial of the motion. See Mills v. Commonwealth, Nos. 2003-CA-000790-MR and 2003-CA-001025-MR, 2004 WL 68543, *1 (Ky. App. Jan. 16, 2004) (unpublished). Two months after the circuit court denied his first CR 60.02 motion, Mills filed his second CR 60.02 motion, which the circuit court denied. Mills appealed, and this Court dismissed the appeal because Mills failed to timely file an appellate brief. See Mills v. Commonwealth, No. 2004-CA-002418-MR (Ky. App. May 2, 2008) (order dismissing appeal). His third CR 60.02 motion was filed in 2004, and it was also denied. He appealed, and this Court affirmed the denial of Mills's third CR 60.02 motion. See Mills v. Commonwealth, No. 2004-CA-001842-MR, 2005 WL 2467772, *1 (Ky. App. Oct. 7, 2005) (unpublished).
In 2004, Mills filed a motion to vacate pursuant to RCr 11.42. In his RCr 11.42 motion, Mills alleged, inter alia, that he received the ineffective assistance of counsel because his guilty plea was not entered intelligently and/or knowingly. His motion was denied by the circuit court.
Kentucky Rule(s) of Criminal Procedure.
--------
In October 2009, Mills sent a letter to the circuit court, in which he requested a "more specifically worded judgment that would reflect [that] the offense of Manufacturing Methamphetamine, first offense, is a Class B felony." He contended in the letter that the Department of Corrections had notified him in June 2009 that due to his firearm enhancement, his conviction for manufacturing methamphetamine, first offense, was a Class A felony subject to the violent offender statute, which meant he had to serve eighty-five percent of his sentence before becoming eligible for parole. Mills stated that when he entered his guilty plea, he understood the offense was a Class B felony and the enhancement applied only to the penalty range and not to the classification of the offense.
The circuit court entered an order in November 2009 stating it had reviewed Mills's letter to the court, and it "considered [the letter] as a petition for [RCr] 11.42 relief or other relief under the Rules." The court then denied the "motion."
In 2010, Mills filed his fourth CR 60.02 motion. In that motion, he made no argument concerning his recent notification from the Department of Corrections that his offense qualified as a violent offense and, as such, he would have to serve eighty-five percent of his sentence before becoming eligible for parole. The circuit court denied the motion. Mills appealed, and this Court affirmed the circuit court's decision. See Mills v. Commonwealth, No. 2010-CA-000424-MR, 2011 WL 2119359, *1 (Ky. App. May 27, 2011) (unpublished).
In July 2011, Mills filed his fifth CR 60.02 motion, which is the subject of the present appeal. In that motion, Mills alleged his judgment should be vacated because he had been told by the court during his plea hearing that he would only have to serve fifty percent, rather than eighty-five percent, of his sentence before becoming eligible for parole. The Department of Corrections had told him in 2009 that he would have to serve eighty-five percent of his sentence. The circuit court denied Mills's motion, finding that it "fail[ed] to meet the burdens of [CR] 60.02 and . . . additionally finding that the movant's motion was not made within a reasonable period of time."
Mills now appeals, contending that: (a) the circuit court erred in failing to hold an evidentiary hearing concerning Mills's CR 60.02 claims; (b) the Department of Corrections should not be permitted to change his sentence to make it harsher, as this is a violation of Mills's due process rights, the Separation of Powers Clause, and the Ex Post Facto Clause; and (c) his guilty plea was not intelligently or voluntarily entered.
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 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." Id. "A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further alleges special circumstances that justify CR 60.02 relief." White, 32 S.W.3d at 86 (internal quotation marks and citation omitted).
In the present case, Mills's claims regarding the actions of the Department of Corrections and the validity of his guilty plea could have been brought in his fourth CR 60.02 motion, if not earlier, because he had been notified by the Department of Corrections before he filed his fourth CR 60.02 motion that he would have to serve eighty-five percent of his sentence before becoming eligible for parole. Therefore, because he could have brought these claims in his prior CR 60.02 motion, they were not properly raised in the CR 60.02 motion that is the subject of this appeal.
Additionally, Mills waited approximately two years from the time the Department of Corrections informed him of the eighty-five percent parole eligibility requirement until he filed his present CR 60.02 motion. The circuit court did not abuse its discretion in finding that the present CR 60.02 motion was not brought within a reasonable period of time after Mills learned of the Department of Corrections' intentions, as the rule requires. See CR 60.02.
Finally, because Mills is not entitled to have his sentence vacated, the circuit court did not abuse its discretion in denying his CR 60.02 motion without holding a hearing. See White, 32 S.W.3d at 86.
Accordingly, the order of the McCracken Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Terry D. Mills
Pro se
La Grange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky