Opinion
NO. 2013-CA-000723-MR
03-07-2014
ADAM MORRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEES
BRIEFS FOR APPELLANT: Adam Morris, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEES: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Taylor Payne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 10-CR-00105
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Adam Morris brings this pro se appeal from an April 8, 2013, order of the Breathitt Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate his sentence of imprisonment. We affirm.
In February 2010, appellant was indicted upon the offenses of first-degree trafficking in a controlled substance and with being a first-degree persistent felony offender. Appellant committed the criminal act of trafficking in a controlled substance on February 11, 2010. Pursuant to a plea agreement, appellant pleaded guilty to both offenses, and on March 15, 2011, appellant was sentenced to a total of ten years' imprisonment.
Subsequently, appellant filed the instant pro se CR 60.02 motion seeking to vacate his sentence of ten years' imprisonment. By order entered April 8, 2013, the circuit court denied appellant's CR 60.02 motion. This appeal follows.
Appellant contends that the circuit court erroneously denied his CR 60.02 motion. Specifically, appellant maintains that he should have been sentenced under Kentucky Revised Statutes (KRS) 218A.1412 as amended effective June 8, 2011, instead of the pre-amended version. Under the amended KRS 218A.1412, appellant asserts that he would only be guilty of a Class D felony; whereas, under the pre-amended version of KRS 218A.1412, he pleaded guilty to a Class A felony. Appellant cites to KRS 446.110 as authority for applying the amended KRS 218A.1412 retrospectively in his case.
KRS 446.110 reads:
No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment isUnder the plain language of KRS 446.110, a statute that mitigates punishment may be retrospectively applied if such statute is effective before "pronouncement" of the judgment. Rogers v. Commonwealth, 366 S.W.3d 446, 456 (Ky. 2012).
mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.
In this case, the judgment was pronounced against appellant within the meaning of KRS 446.110 on March 15, 2011, when final judgment was entered sentencing appellant to ten years' imprisonment. See id. The amended version of KRS 446.110 was not effective until June 8, 2011. As the amended version of KRS 446.110 took effect after judgment against appellant was entered, appellant is not entitled to retroactive application of the amended version of KRS 446.110. See Rogers, 366 S.W.3d 446.
Accordingly, we conclude that the circuit court properly denied appellant's CR 60.02 motion.
For the foregoing reasons, the order of the Breathitt Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Adam Morris, Pro Se
West Liberty, Kentucky
BRIEF FOR APPELLEES: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Taylor Payne
Assistant Attorney General
Frankfort, Kentucky