Opinion
NO. 2019-CA-000186-MR
02-28-2020
JAMES THOMAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: James R. Thomas, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OWEN CIRCUIT COURT
HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 12-CR-00018 OPINION
AFFIRMING
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BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES. CALDWELL, JUDGE: James R. Thomas appeals from the Owen Circuit Court's order denying his motion to vacate, set aside, or modify its judgment pursuant to CR 60.02(e), entered December 11, 2018. We affirm.
Kentucky Rule of Civil Procedure.
The facts underlying Thomas' conviction may be found in the opinion of the Kentucky Supreme Court issued in the direct appeal of his conviction for manufacturing methamphetamine, possession of a controlled substance, possession of drug paraphernalia, possession of marijuana and being a persistent felony offender in the first degree, and his sentence of twenty-three (23) years. Thomas v. Commonwealth, No. 2013-SC-000550-MR, 2015 WL 6593951 (Ky. Oct. 29, 2015). In the opinion, the Kentucky Supreme Court affirmed Thomas' conviction and sentence on direct appeal. The only relevant details of that conviction are that a $1,000 fine and court costs were assessed in the judgment issued by the Owen Circuit Court; none of the issues raised in that appeal is germane to the issues sought to be addressed by him here.
In 2018, Thomas began filing pro se motions seeking to amend the judgment in this matter to remove the $1,000 fine and assessment of court costs by the Owen Circuit Court. He first attempted to seek relief by filing, pro se, a "Motion to Quash and Dismiss Court Costs and Fines" in the Owen Circuit Court in May of 2018. The circuit court denied relief in June of 2018. Thomas then filed, pro se, the subject "Motion to Vacate, Set Aside, or Modify Pursuant to CR 60.02(a)-(f)" on November 29, 2018, repeating much the same request and argument, to wit, an order vacating that portion of the judgment assessing the fine and court costs under the theory that he, having qualified for the assistance of a public defender ipso facto, would qualify as a "poor person" who would not be subject to such fine and costs. The Owen Circuit Court overruled the CR 60.02 motion in December 2018. This appeal followed.
This is an appeal of the circuit court's denial of a CR 60.02 motion. "We review the denial of a CR 60.02 motion for an abuse of discretion." Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). "The test for abuse of discretion is whether the trial judge'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). "The burden of proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (citations and internal quotation marks omitted). "[W]e will affirm the lower court's decision unless there is a showing of some 'flagrant miscarriage of justice.'" Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
This Court, like the circuit court below, will not endeavor to review the viability of the claims for relief brought by Thomas via the CR 60.02 motion. The Commonwealth rightfully argues that the circuit court properly denied relief as his claims should have been raised in his direct appeal or in a motion pursuant to RCr 11.42, and, therefore, the circuit court properly denied review when it held that it "lack[ed] jurisdiction to make such a ruling." We agree with the Commonwealth and hold that Thomas has presented no grounds for relief cognizable under CR 60.02. Rather, his claims concerning the assessment of a fine and costs were known at the time of his sentencing when they were assessed against him, with no apparent objection by him.
Kentucky Rule of Criminal Procedure.
Further, although "sentencing is jurisdictional" and thus may be raised at any time, the question arises as to through what oculus the claims must be viewed. Howard v. Commonwealth, 496 S.W.3d 471, 478 (Ky. 2016) (citing Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010)). In other words, must his status be viewed as it existed at the time of his sentencing, which was contemporaneous with the assessment of the costs and fine, or must his status be viewed as of the time of the filing of his motion seeking CR 60.02 relief? We hold that the oculus must be the former.
We take judicial notice pursuant to KRE 201(b)(2) that within thirty (30) days of the entry of the judgment in this matter, of which the fine and costs are part, a notice of appeal was filed in the Kentucky Supreme Court instituting a direct appeal of Thomas' judgment and sentence. At the time the notice of appeal was filed, the filing fee of $150.00 was paid by Thomas. See, infra, Thomas v. Commonwealth, No. 2013-SC-000550-MR, indicating that the $150.00 filing fee was paid by Thomas to the Owen Circuit Court on August 13, 2013. He sought no relief from the fee and filed no motion to proceed in forma pauperis. CR 73.02. While it may be true that he prosecutes this current action having been granted in forma pauperis status, we hold that that status does not ipso facto relate back to the assessment of the fine and court costs and is therefore not relevant to determining the propriety of the assessment of the fine and costs at the time such were assessed by the Owen Circuit Court at the entry of the judgment in 2013.
Kentucky Rule of Evidence.
Further, although he was granted appointment of counsel by the Owen Circuit Court shortly after his arraignment on these charges, it does not appear from the documents designated in the record and attached to his brief by the Appellant that he maintained appointed counsel, but rather engaged private counsel as the identity of his counsel at the time of entry of judgment is different than the conflict counsel assigned by the local Department of Public Advocacy office shortly after his arraignment. It is the responsibility of Appellant to ensure that the record supports the arguments he forwards. Appellant bears the primary responsibility of ensuring that all materials necessary for an effective review are included in the record on appeal. Oldfield v. Oldfield, 663 S.W.2d 211 (Ky. 1983); Fanelli v. Commonwealth, 423 S.W.2d 255 (Ky. 1968).
The first attachment to his brief is a "Notice of Assignment of Counsel" signed by Steve Florian, the Directing Attorney of the Department of Public Advocacy Boone Trials Office, that nominates an Edward Drennan of Florence, Contract Conflict Counsel, as the attorney assigned to represent Thomas before the Owen Circuit Court in February of 2013. However, some five months later, in July of 2013, the judgment, also attached to his brief, indicates that Thomas was accompanied by counsel Kenneth McCardwell, with a Louisville address, at the time of his sentencing. Notably, Thomas' brief, while highlighting the assignment of Drennan, is silent concerning how McCardwell became involved in his case. --------
Thomas argues that because of his incarceration, he is unable to pay the costs and fine. However, one's status as an incarcerated individual, alone, is insufficient to establish that one is a "poor person" under KRS 453.190(2) so as to be immune from the imposition of court costs or is "indigent" under KRS 534.030 and, therefore, not subject to the imposition of fines. "No inmate shall be automatically allowed to proceed through the courts in forma pauperis by virtue of his status as an inmate, nor shall his incarceration lead to a presumption of impoverishment, or constitute evidence of a rebuttable presumption of impoverishment." KRS 453.190(4).
Therefore, at the time that the circuit court imposed the fine and costs, which we find to be the proper time to analyze the propriety of such imposition, Thomas was neither determined to be a "poor person" or "indigent." Thus, the circuit court properly assessed both a fine and costs.
For the foregoing reasons, we affirm the Owen Circuit Court's order denying relief pursuant to CR 60.02.
ALL CONCUR. BRIEF FOR APPELLANT: James R. Thomas, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky