Opinion
NO. 2014-CA-000551-MR
05-15-2015
JERRY D. ROGERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Jerry D. Rogers, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLARK CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 10-CR-00075
OPINION
AFFIRMING
BEFORE: DIXON, JONES AND THOMPSON, JUDGES. DIXON, JUDGE: Jerry D. Rogers, pro se, appeals an order of the Clark Circuit Court denying his post-conviction motion for a new sentencing hearing. We affirm.
Rogers pled guilty to two counts of using an electronic communication system to procure a minor to commit a sexual offense; thereafter, on September 8, 2011, the court sentenced Rogers to four years' imprisonment and ordered him to pay court costs of $155.00 within six months of his release from custody. The final judgment reflected the court's finding that Rogers was a sex offender and imposed a five-year period of conditional discharge upon the completion of his prison sentence. The court's order recited several conditions for the conditional discharge period relating to Rogers's status as a sex offender, his interaction with others in the community, and the sex offender treatment program. Rogers did not appeal the final judgment.
On January 21, 2014, Rogers filed a "Motion for Resentencing Hearing" in the circuit court. Rogers alleged the post-incarceration release conditions and court costs imposed in the final judgment subjected him to an unauthorized sentence. The court summarily denied the motion, and this appeal followed.
Rogers did not appeal the judgment that imposed the sentence he now claims was unauthorized. In Commonwealth v. Reed, 374 S.W.3d 298 (Ky. 2012), the Kentucky Supreme Court explained,
We begin by noting that while an unconditional guilty plea waives the right to appeal many constitutional protections as well as the right to appeal a finding of guilt on the sufficiency of the evidence, there are some remaining issues that can be raised in an appeal, including sentencing issues. Sentencing issues include a claim that a sentencing decision is contrary to statute . . . or was made without fully considering what sentencing options were allowed by statute . . . .Id. at 300 (internal citations and quotation marks omitted). Further, Rogers did not rely on a specific procedural rule for relief in his post-conviction motion. In Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983), the Kentucky Supreme Court outlined the availability of post-conviction relief as follows:
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02.
In the case at bar, Rogers filed an independent "Motion for Resentencing Hearing" more than two years after his conviction was final. Rogers hoped to take advantage of an opinion rendered after he was sentenced, Chames v. Commonwealth, 405 S.W.3d 519 (Ky. App. 2012), which concluded that only the Department of Corrections, not the circuit court, has the authority to establish post-incarceration release conditions pursuant to KRS 532.043(3)(a). Id. at 526. Further, Rogers cites Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010), for the proposition that the assessment of court costs was improper because he was indigent.
In both Chames and Travis, the defendants challenged the alleged sentencing errors by filing direct appeals.
While we acknowledge the case law cited by Rogers, we believe his claims are not properly before this Court because the alleged sentencing issues could have been raised on direct appeal. Reed, 374 S.W.3d at 300. Rogers chose not to file a direct appeal of his conviction. Furthermore, he failed to follow the proper procedural rules for seeking post-conviction relief pursuant to RCr 11.42 and CR 60.02. Gross, 648 S.W.2d at 856. After careful review, we conclude the trial court properly denied Rogers's motion for post-conviction relief.
For the reasons stated herein, we affirm the judgment of the Clark Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Jerry D. Rogers, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky