Opinion
NO. 2014-CA-002022-MR
03-11-2016
RALPH RAY PERKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ralph Ray Perkins, pro se Wingo, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FULTON CIRCUIT COURT
HONORABLE DENNIS FOUST, SPECIAL JUDGE
ACTION NO. 97-CR-00061 OPINION
AFFIRMING BEFORE: COMBS, KRAMER, AND NICKELL, JUDGES. NICKELL, JUDGE: Ralph Ray Perkins, pro se, has appealed from an order of the Fulton Circuit Court denying a CR 60.02 motion to set aside his 1997 conviction for first-degree wanton endangerment. After review of the record and applicable law, we affirm.
Kentucky Rules of Civil Procedure.
PROCEDURAL BACKGROUND
On October 8, 1997, Perkins was convicted of first-degree wanton endangerment and received a sentence of five years' imprisonment. His matter of right appeal to this Court was affirmed. On November 19, 1999, Perkins filed a RCr 11.42 motion to vacate his sentence, which the trial court denied. On June 1, 2000, he filed a CR 60.02 motion which the trial court also denied.
Kentucky Rules of Criminal Procedure.
On July 22, 2014, Perkins sent a letter to the trial judge wherein he requested a reduction of the sentence on his 1997 conviction so he could have his voting rights restored. The trial court characterized the letter as a motion to set aside the judgment and denied the request. The special judge found there was no legal basis upon which it could afford Perkins the requested relief. Perkins' subsequent motion to reconsider—wherein he complained about his living situation and reiterated he wanted his civil rights back—was denied. Perkins alleges he then filed a pro se motion citing 60.02(e) and (f), that vested the trial court with a legal basis to grant his requested relief by declaring his judgment void. No evidence of this later motion appears in the record and the trial court did not render any further judgment. This appeal followed.
ANALYSIS
On appeal, Perkins first complains the trial court erred when it did not sua sponte appoint counsel to help him present his claims. In support he cites KRS 31.110 which provides in relevant part:
Kentucky Revised Statutes.
Perkins actually cited KRS 31.190, a repealed section of Chapter 31 dealing with appropriation of money by fiscal courts to cities. However, because we afford much leeway to pro se litigants, Beecham v. Commonwealth, 657 S.W.3d 234, 236 (Ky. 1983), we assume he intended to cite KRS 31.110, which deals with persons entitled to legal representation and services. --------
1) A needy person who is being detained by a law enforcement officer, on suspicion of having committed, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, or who is accused of having committed a public or status offense or who has been committed to the Department of Juvenile Justice or Cabinet for Health and Family Services for having committed a public or status offense as those are defined by KRS 610.010(1), 610.010(2)(a), (b), (c), or 630.020(2) is entitled:
. . . .
(c) To be represented in any other post-conviction proceeding that the attorney and the needy person considers (sic) appropriate. However, if the counsel appointed in such post-conviction remedy, with the court involved, determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense, there shall be no further right to be represented by counsel under the provisions of this chapter.
In Fraser v. Commonwealth, 58 S.W.3d 448, 456 (Ky. 2001), the Supreme Court of Kentucky examined KRS 31.110 under the constitutional separation of powers doctrine. The Court held "responsibility for determining when and whether counsel must be appointed for a criminal defendant in Kentucky is a function of the judicial department, not the legislature." Id. Thus, the Court concluded, KRS 31.110(2)(c) only "establishes when the DPA may provide legal services even without judicial appointment." Id. When a court must appoint counsel in post-conviction proceedings appears in RCr 11.42(5). Id.
RCr 11.42(5) provides:
Affirmative allegations contained in the answer shall be treated as controverted or avoided of record. If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal.The foregoing language applies only to post-conviction motions filed under RCr 11.42; there is no similar provision in CR 60.02. In fact, our Supreme Court has expressly held the right to counsel mentioned in KRS 31.110 does not extend to CR 60.02 proceedings because there is no corresponding provision in CR 60.02. Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Perkins was not entitled to appointment of counsel under KRS 31.110 to help him present claims made under CR 60.02.
Moreover, even if KRS 31.110 created a statutory right to counsel for CR 60.02 proceedings, Perkins would not qualify. KRS 31.110(1) specifies "before a needy person is entitled to the appointment of counsel he must be a person who is being 'detained under a conviction for a serious crime. . . .'" Ray v. Commonwealth, 633 S.W.2d 71, 72 (Ky. 1982). In other words, the "serious crime" referred to in the statute must be causing the present detention of the defendant. Id. Perkins appeals from a sentence for which he served out more than a decade ago. He is not presently being detained for the sentence and is therefore ineligible for appointment of counsel under the statute. The trial court did not err in sua sponte not appointing counsel to represent Perkins.
Next, we turn to the trial court's denial of Perkins' CR 60.02 motion. Perkins argues the trial court has the authority to void his felony conviction under KRS 431.076. Therefore, he asserts, the court should have granted his motion. We disagree.
CR 60.02 is an extraordinary remedy necessitating cautious application. Louisville Mall Associates, LP v. Wood Center Properties, LLC, 361 S.W.3d 323, 335 (Ky. App. 2012). "Given the high standard for granting a CR 60.02 motion, a trial court's ruling on the motion receives great deference on appeal. . . ." Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998) (internal citations omitted). Therefore, we will not overturn denial of a CR 60.02 motion absent an abuse of discretion. Id. See also Lawson v. Lawson, 290 S.W.3d 691, 693-94 (Ky. App. 2009). To constitute an abuse of discretion, the trial court's decision must be "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). With this deferential standard in mind, we address Perkins' allegation of error.
CR 60.02 provides, in relevant part:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, . . . upon the following grounds:CR 60.02 concerns itself with significant defects at trial that caused a substantial miscarriage of justice. Wine v. Commonweatlh, 699 S.W.2d 752, 754 (Ky. App. 1985) (citing Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966)).
. . . .
(e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(f) for any other reason of extraordinary nature justifying relief.
In this case, the "newly discovered fact" on which Perkins relies for relief is that his felon status makes him unable to vote and unable to obtain income-based housing. While we are not unsympathetic to the situation in which Perkins finds himself, these "hardships cited by [Perkins] have no relation to the trial proceedings or any additional undiscovered evidence not presented at trial . . . ." Wine, 699 S.W.2d at 754. It is equally clear none of these "newly discovered facts" would have produced a different judgment had they been introduced at trial. Perkins argues KRS 431.076 and KRS 431.078, which permit trial courts to expunge criminal records, authorize this Court to set aside his conviction. However, neither provision gives a trial court authority to expunge the record of a convicted felon. KRS 431.076 confers authority to expunge criminal records of those who have been acquitted of the charged crimes or where the charges have been dismissed with prejudice. KRS 431.078 grants authority to expunge criminal records of misdemeanors and violations. Perkins' conviction for first-degree wanton endangerment, a Class D felony, does not meet the criteria of either KRS 431.076 or KRS 431.078.
Furthermore, we are not permitted to use the catch-all provision found in CR 60.02(f) to circumvent the limited power we derive from statutes to expunge felony records of criminals. In Commonwealth v. Jones, 406 S.W.3d 857, 861 (Ky. 2013), the trial court used CR 60.02(f), over the Commonwealth's objection, to expunge the appellant's record. Our Supreme Court held, "[a]bsent extraordinary circumstances, which are proven or agreed to by the Commonwealth, the courts of this Commonwealth do not have authority to expunge criminal records absent statutory authority." Id. at 860-61. To allow such "would indubitably run afoul of the separation of powers doctrine." Id. at 861.
The Court in Jones did, however, opine that CR 60.02(f) might be utilized without violating the separation of powers doctrine if the Commonwealth agreed "extraordinary circumstances" existed. Here, Perkins argues he is unable to vote and unable to secure public housing. Stated otherwise, he finds himself similarly situated to all other convicted felons in the Commonwealth. These circumstances are not "extraordinary" in nature. Further, the Commonwealth's objection precludes use of CR 60.02(f) to grant Perkins relief.
For the foregoing reasons, the order of the Fulton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Ralph Ray Perkins, pro se
Wingo, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky