Opinion
NO. 2018-CA-000841-MR
04-05-2019
LARRY RAY SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Larry R. Smith, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 98-CR-00374 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND K. THOMPSON, JUDGES. KRAMER, JUDGE: Larry R. Smith appeals from the Fayette Circuit Court's order of May 18, 2018, denying what he styled as his "request for dismissal of the void indictment and judgment as to a PFO charge in this case pursuant to RCr[] 10.26 palpable and substantial errors." Upon review, we affirm.
Kentucky Rule of Criminal Procedure.
In Smith v. Commonwealth, No. 2016-CA-000149-MR, 2017 WL 128592 (Ky. App. Jan. 13, 2017) (unpublished), this Court discussed the circumstances of Smith's incarceration and some of the history of his ensuing motion practice before the Courts:
In a jury trial held on August 31, 1998, Larry R. Smith was found guilty of two counts of incest (KRS[FN] 530.020) and of being a second-degree persistent felony offender (PFO) (KRS 532.080).
[FN] Kentucky Revised Statutes.
The jury fixed Smith's sentence at two terms of twelve and one-half years each. The trial court entered its final judgment on October 20, 1998, sentencing Smith to a total of twenty-five years' imprisonment pursuant to the jury's verdict. The Supreme Court of Kentucky upheld Smith's conviction on direct appeal in an unpublished opinion rendered August 26, 1999.[FN]
[FN] 98-SC-0936-MR.
Smith has extensively litigated his case ever since his conviction.[FN]
[FN] Much of the following procedural history is adapted from a previous unpublished opinion relating to the appellant's case, Smith v. Commonwealth, No. 2006-CA-000945-MR, 2007 WL 2343766 (Ky. App. Aug. 17, 2007).
The Fayette Circuit Court denied his motion to vacate sentence pursuant to RCr 11.42 on October 3, 2001, and it also denied his CR 60.02 motion for concurrent
sentencing on November 8, 2001. The circuit court was affirmed on both denials by a panel of this Court in a consolidated appeal.[FN]
[FN] Smith v. Commonwealth, Nos. 2001-CA-002781-MR & 2001-CA-002783-MR, 2003 WL 21714590 (Ky. App. July 25, 2003).
In the meantime, however, Smith, pro se, filed another CR 60.02 motion in which he contested the constitutionality of the PFO statute. The circuit court denied that motion on March 26, 2002. Smith, pro se, filed another CR 60.02 motion on a variety of issues, which was also denied by the circuit court on October 27, 2003. In its denial, the circuit court noted that the CR 60.02 motion was successive. Smith, pro se, then filed a motion under CR 61.02 attacking his indictment, which the circuit court denied on March 16, 2005. Pro se, he then filed another motion for a new trial under RCr 10.26 and CR 61.02 in which he alleged substantial error. The circuit court denied the motion in an order entered on August 22, 2005. Smith, pro se, filed another motion to vacate pursuant to RCr 10.26 and CR 61.02, which was denied by the circuit court and was appealed to a panel of this Court. We affirmed the circuit court in an unpublished opinion.[FN]
[FN] Smith v. Commonwealth, No. 2006-CA-000945-MR, 2007 WL 2343766 (Ky. App. Aug. 17, 2007).
Kentucky Rule of Civil Procedure. --------
This is only a partial summary of Smith's history before our Courts. His aforementioned "request for dismissal of the void indictment and judgment as to a PFO charge in this case pursuant to RCr 10.26 palpable and substantial errors," the denial of which forms the basis of the present appeal, appears to be his twenty-sixth post-conviction motion.
In any case, the circuit court denied Smith's motion after determining that no legal basis supported it. We agree.
Procedurally, Smith's motion has no legal basis for at least two reasons. First, Smith brought his motion into the circuit court under RCr 10.26, which provides:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
Contrary to Smith's supposition, a motion may not be filed pursuant to RCr 10.26 because RCr 10.26 is a standard of review for certain egregious trial errors, i.e., it is not a procedural mechanism by which a party may obtain relief simply by filing a motion pursuant to that rule.
Second, even if we were to construe Smith's post-judgment motion as asserted under the purview of CR 60.02(e) (which permits the setting aside of "void" judgments), doing so would be of no benefit to him. Such motions must be made within a "reasonable time," and must not rest upon grounds that could have been asserted in a direct appeal or RCr 11.42 proceedings. Id.; see also McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Smith does not assert - nor do we find - that over two decades following the entry of his conviction qualifies as "a reasonable time." Nor does Smith imply that the argument he offered in his latest post-judgment motion could not have been asserted in a direct appeal of his judgment, his prior RCr 11.42 proceedings, or for that matter any of his twenty-five prior post-judgment motions.
Likewise, Smith's motion has no substantive legal basis. In it, his argument concerns his non-completion of the Sex Offender Treatment Program (SOTP), which requires an individual to accept responsibility for a sex crime. If an eligible sexual offender like Smith does not complete an SOTP, the sex offender must serve out his entire sentence without the benefit of sentencing credit, parole, or any other form of early release. Specifically, KRS 197.045(4) provides:
Until successful completion of the sex offender treatment program, an eligible sexual offender may earn sentencing credit. However, the sentencing credit shall not be credited to the eligible sexual offender's sentence. Upon the successful completion of the sex offender treatment program, as determined by the program director, the offender shall be eligible for all sentencing credit earned but not otherwise forfeited under administrative regulations promulgated by the Department of Corrections. After successful completion of the sex offender treatment program, an eligible sexual offender may continue to earn sentencing credit in the manner provided by administrative regulations promulgated by the Department of Corrections. Any eligible sexual offender, as defined in KRS 197.410, who has not successfully completed the sex offender treatment program as determined by the program director shall not be entitled to the benefit of any credit on his or her
sentence. A sexual offender who does not complete the sex offender treatment program for any reason shall serve his or her entire sentence without benefit of sentencing credit, parole, or other form of early release. The provisions of this section shall not apply to any sexual offender convicted before July 15, 1998, or to any sexual offender with an intellectual disability.
To date, Smith has refused to accept responsibility for his sex crimes and, thus, cannot be granted good time credit. Nevertheless, Smith takes issue with the application of KRS 197.045(4) to his sentence of imprisonment. He argues that because he committed his sex crimes prior to July 15, 1998, the statute's requirement for sex offender treatment prior to the allowance of good time credit should not apply to his sentence; and that the application of the statute to his sentence - based upon the date of his conviction (i.e., October 20, 1998), rather than the date he committed his sex crimes - deprives him of due process and subjects him to unconstitutional, ex post facto punishment.
But, the same argument has been rejected before. With respect to his contention that he has been deprived of due process,
The case law is clear that [Smith] has no vested right or reasonable entitlement to good time credit, whether it be the non-educational good time credit set forth by KRS 197.045(1) or the meritorious good time credit set forth by KRS 197.045(3). Rather, it is a privilege that must be earned. Martin v. Chandler, 122 S.W.3d 540, 542 (Ky. 2003); see also Fowler v. Black, 364 S.W.2d 164, 164-65 (Ky. 1963); Anderson v. Parker, 964 S.W.2d 809, 810 (Ky. App. 1997). Moreover, our courts have made clear that the "loss of the mere opportunity to earn good-time
credit does not constitute a cognizable liberty interest." Marksberry v. Chandler, 126 S.W.3d 747, 753 (Ky. App. 2003), citing Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995); Abed v. Armstrong, 209 F.3d 63, 67 (2d Cir. 2000). Our Supreme Court has further held that "so long as the conditions or the degree of confinement to which the prisoner is subjected do not exceed the sentence which was imposed and are not otherwise in violation of the Constitution, the due process clause of the Fourteenth Amendment does not subject an inmate's treatment by prison authorities to judicial oversight." Mahoney v. Carter, 938 S.W.2d 575, 576 (Ky. 1997), citing Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). We also note that a prisoner is not even entitled to a hearing on the denial or forfeiture of good time credits. McGuffin v. Cowan, 505 S.W.2d 773, 773 (Ky. 1974). Accordingly, we fail to see how due process concerns are implicated here, and we must consequently reject [Smith's] contention.Seymour v. Colebank, 179 S.W.3d 886, 891 (Ky. App. 2005) (footnotes omitted).
With respect to Smith's contention that he has been subjected to an unconstitutional, ex post facto punishment, Kentucky law has consistently concluded that the retroactive application of the sexual offender treatment program does not create an unconstitutional ex post facto violation. Stewart v. Commonwealth, 153 S.W.3d 789, 793 (Ky. 2005). A statute violates the Ex Post Facto Clause when the statute: (1) is retrospective; and (2) disadvantages the offender. KRS 197.045(4) provides in part, "[a] sexual offender who does not complete the sex offender treatment program for any reason shall serve his or her entire sentence without benefit of sentencing credit, parole, or other form of early release." In Lozier v. Commonwealth, 32 S.W.3d 511 (Ky. App. 2000), this Court concluded that an offender was not disadvantaged by a retroactive application of KRS 197.045. This Court reasoned:
KRS 197.045(4) does not deprive Lozier of the opportunity to earn good time credit and to qualify for early parole. Rather, KRS 197.045(4) merely defers the effective date of any good time credit which Lozier may earn in prison until she has successfully completed a sex offender treatment program. Once she completes the program, her accrued good time credit will be credited against her sentence. Consequently, we find no indication that Lozier will be disadvantaged by the application of KRS 197.045(4).Id. at 514. The same reasoning applies to Smith. Therefore, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Larry R. Smith, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky