Opinion
NO. 2011-CA-002304-MR
06-07-2013
GLENN RILEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Glenn Riley, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
ACTION NO. 07-CR-00086
OPINION
AFFIRMING
BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: Glenn Riley appeals the Knox Circuit Court's order denying his CR 60.02 motion. After a careful review of the record, we affirm because Riley did not comply with the notification requirement of KRS 418.075 and he did not request that we review his unpreserved claims for palpable error.
Kentucky Rule of Civil Procedure.
Kentucky Revised Statute.
Riley entered a guilty plea to the charges of third-degree rape under KRS 510.060 and being a second-degree persistent felony offender (PFO-2nd) under KRS 532.080. He was sentenced to five years of imprisonment for the rape conviction, which the circuit court enhanced to seven years due to his PFO-2nd conviction.
Several years later, Riley moved, pursuant to CR 60.02, to be resentenced and for an order to clarify his sentence to the Department of Corrections. The circuit court denied the motion.
Riley now appeals. Riley asserts that KRS 532.043 violates the Separation of Powers doctrine by allowing the executive branch to increase a defendant's maximum sentence in a judicial matter. He also contends that the statute "should be void per Section 26 and forbidden per Section 19 of the Kentucky Constitution." However, Riley did not comply with the notification requirement set forth in KRS 418.075 before raising these arguments, and his failure to provide notice to the Attorney General renders these constitutional challenges unpreserved. See Jones v. Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010).
We note that Riley does not raise on appeal the due process and equal protection claims that he asserted in his CR 60.02 motion filed in the circuit court. Accordingly, those claims are deemed to have been waived. See Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
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Moreover, because Riley did not request that we review his unpreserved claims for palpable error pursuant to RCr 10.26, we will not review them. See Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008) ("[A]n appellate court will not engage in palpable error review pursuant to RCr 10.26 unless such a request is made and briefed by the appellant.").
Accordingly, the order of the Knox Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Glenn Riley, pro se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky