Opinion
NO. 2012-CA-000158-MR
06-21-2013
JOHN SCHELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Schell, pro se Wheelwright, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
ACTION NO. 06-CR-00048
OPINION
AFFIRMING
BEFORE: KELLER, LAMBERT AND MOORE, JUDGES. KELLER, JUDGE: John Schell (Schell) appeals pro se from an order of the Laurel Circuit Court denying his Kentucky Rule of Civil Procedure (CR) 60.02 motion. For the following reasons, we affirm.
Judge Michelle M. Keller authored this opinion prior to her appointment to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
FACTS
On February 17, 2006, a Laurel County grand jury indicted Schell for first-degree trafficking in a controlled substance and being a first-degree persistent felony offender. The charges stemmed from a narcotics transaction that occurred on January 18, 2006. Schell was convicted on both counts. He was sentenced to ten years for first-degree trafficking in a controlled substance, which was enhanced to twenty years by the first-degree persistent felony offender conviction. Schell appealed his conviction to the Supreme Court of Kentucky, and in an unpublished opinion rendered on January 24, 2008, the Court affirmed the conviction. Schell v. Commonwealth, 2006-SC-000662-MR, 2008 WL 203036 (Ky. Jan. 24, 2008).
On November 23, 2011, Schell filed a CR 60.02 motion to modify his sentence arguing that the recent amendment of Kentucky Revised Statute (KRS) 218A.1412 should be retroactively applied to his 2006 sentence. He also requested an evidentiary hearing and appointment of counsel. Without conducting a hearing or appointing counsel, the trial court entered an order denying Schell's motion. This appeal followed.
STANDARD OR REVIEW
"The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). To amount to 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). Absent a "flagrant miscarriage of justice," the trial court will be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
ANALYSIS
In this case, Schell sought relief pursuant to CR 60.02(e) and (f) which authorize relief from a judgment when:
(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) any other reason of an extraordinary nature justifying relief.
Schell contends that he should be resentenced in light of the amendment to KRS 218A.1412 by House Bill (HB) 463 even though he was sentenced before the amendment went into effect. The Supreme Court of Kentucky addressed a similar argument in Rogers v. Commonwealth, 366 S.W.3d 446 (Ky. 2012). In that case, Rogers contended that he should be resentenced in light of the amendments to HB 463. Id. at 456. As in the instant case, Rogers relied on KRS 446.110, which states that "[i]f any penalty, forfeiture or punishment is mitigated by any provision of [a] new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." (Emphasis added).
The Supreme Court concluded that:
Although Rogers is correct that [KRS 446.110] allows for the retroactive application of penalty-mitigating changes to the law, Commonwealth v. Phon, 17 S.W.3d 106 (Ky. 2000), by the statute's plain terms the retroactivity is limited to changes that take effect prior to the "pronouncement" of judgment. Here, judgment wasRogers, 366 S.W.3d at 456.
pronounced against Rogers no later than October 22, 2010, when the Nelson Circuit Court entered judgment against him. House Bill 463 did not go into effect until the following July [2011], some nine months later. Because House Bill 463 had not gone into effect at the time the judgment against Rogers was pronounced, Rogers may not now invoke the new law's penalty provisions.
Because Schell was sentenced in August 2006, nearly five years prior to the effective date of the amendment to KRS 218A.1412, he "may not now invoke the new law's penalty provisions." Id. Accordingly, we conclude that the trial court did not abuse its discretion in denying Schell's CR 60.02 motion.
Finally, we address Schell's argument that he was entitled to an evidentiary hearing and appointment of counsel. "Before a movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Gross, 648 S.W.2d at 856. Schell has failed to present any facts or legal grounds sufficient to invalidate his sentence. Thus, the trial court did not err in denying his request for an evidentiary hearing. Furthermore, as set forth in Gross, the trial court is not required to provide counsel for a defendant in CR 60.02 proceedings. Id. at 858. Accordingly, we conclude that the trial court did not err in denying Schell's request for appointment of counsel.
CONCLUSION
For the foregoing reasons, we affirm the order of the Laurel Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: John Schell, pro se
Wheelwright, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky