Opinion
NO. 2012-CA-000223-MR
05-03-2013
JOHNNY SHEPHERD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Johnny Shepherd, Pro se Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 95-CR-00086
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. VANMETER, JUDGE: Johnny Shepherd appeals pro se from the January 10, 2012, order of the Meade Circuit Court which denied his CR 60.02 motion to vacate, set aside, or amend the judgment and sentence. We affirm.
Kentucky Rules of Civil Procedure.
Shepherd was convicted by a Meade Circuit Court jury on March 12, 1997 of first-degree burglary, possession of drug paraphernalia, possession of marijuana, possession of cocaine, criminal attempt to commit murder, and second-degree possession of a controlled substance. On March 22, 1997, he was sentenced to forty-five years' imprisonment for the aforementioned offenses, in accordance with the jury's recommendation. Shepherd appealed the conviction and sentence. The Kentucky Supreme Court unanimously affirmed, reciting the basic facts of the case as follows:
Shepherd's conviction stems from the events of August 4, 1995, when he went to the residence of Roland Sharps to see his former wife, Susan Shepherd. By the end of the evening, [Susan] Shepherd had been stabbed and Sharps had been shot three times. Shepherd was convicted in Meade Circuit Court on all charges and sentenced to 45 years' imprisonment.Shepherd v. Commonwealth, 97-SC-280-MR (December 17, 1998).
Shepherd then filed pro se an RCr 11.42 motion, which the trial court denied. On appeal, we affirmed. The Kentucky Supreme Court denied discretionary review. Thereafter, Shepherd filed pro se a CR 60.02 motion, arguing that he was improperly sentenced to consecutive terms, rather than concurrent terms. The trial court denied his motion. This appeal followed.
Kentucky Rules of Criminal Procedure.
Shepherd v. Commonwealth, No. 2007-CA-001664-MR (Ky. App. April 14, 2010).
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On appeal, Shepherd claims the trial court abused its discretion by denying his motion for CR 60.02 relief. We disagree.
The standard for reviewing a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998) (citations omitted). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
In this case, the trial court's denial of Shepherd's CR 60.02 motion was not an abuse of its discretion. First, Shepherd's claim is not cognizable under Kentucky law:
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. CR 60.02 . . . is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief. Before the 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 v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
Shepherd's claim concerning concurrent sentencing is precluded because it alleges an error that should have been raised on direct appeal. Because Shepherd failed to raise this issue on direct appeal, we are without authority to consider it in the context of a CR 60.02 motion.
Further, even on its merits, Shepherd's claim fails. The verdict form filled out by the jury during the sentencing phase of trial shows that the jury recommended a forty-five year sentence for Shepherd, to run consecutively. Indeed, the last page of the verdict form reads:
We, the jury, recommend that the above sentences run _________ (concurrent or consecutive) in whole or in part for a total of ___ years. Concurrent means at the same time, consecutive means one after the other.
The word consecutive was handwritten in the first blank and immediately following that blank, the word consecutive was circled. The second blank was filled in with the number 45. Thus, the verdict form shows that the jury was informed as to the difference between concurrent and consecutive sentences and chose to recommend the latter. We therefore conclude that Shepherd's claim of error fails on a substantive, as well as a procedural, basis.
The order of the Meade Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Johnny Shepherd, Pro se
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky