RAY ASHCRAFT v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 7, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-1942-MR
RAY ASHCRAFT
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 86-CR-00527
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
ABRAMSON, GARDNER, and GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Ray Ashcraft (Ashcraft) appeals pro se from an
order of the Fayette Circuit Court entered on July 15, 1997,
denying his motion to amend the judgment brought pursuant to
Kentucky Rule of Civil Procedure (CR) 60.02.
We affirm.
In November 1986, the Fayette County Grand Jury
indicted Ashcraft on one count of murder (KRS 507.020), and one
count of being a persistent felony offender in the second degree
(PFO II) (KRS 532.080).
The trial court separated the trial
proceeding with respect to the murder charge and the PFO II
charge.
Consistent with the Truth In Sentencing Statute, KRS
532.055, the trial judge also separated the guilt phase and the
sentencing phase of the murder prosecution.
As a result, the
prosecution was divided into a tripartite procedure.
During the
initial phase, the jury found Ashcraft guilty of first-degree
manslaughter, and during the second phase the jury recommended a
sentence of twenty years in prison on the manslaughter
conviction.
After the jury rendered these verdicts, Ashcraft
made a motion to enter a guilty plea on the PFO II charge,
pursuant to a plea agreement with the Commonwealth, which
recommended an enhanced sentence of thirty-four years in prison.
On April 1, 1987, after conducting a guilty plea hearing, the
trial court accepted the guilty plea finding it was entered
knowingly and voluntarily.
The court postponed final sentencing
pending review of a presentence investigation report.
In May
1987, the trial judge sentenced Ashcraft to serve twenty years on
the murder conviction enhanced to thirty-four years on the PFO II
conviction.
Ashcraft filed a direct appeal of the judgment of
conviction.
In February 1988, the Kentucky Supreme Court
affirmed the judgment in an unpublished opinion.
Commonwealth, 87-SC-467-MR
Ashcraft v.
(rendered Feb. 11, 1988).
On June 16, 1997, Ashcraft filed a pro se "Motion to
Amend or Correct Sentence Pursuant to CR 60.02(f) and CR 60.03."
He argued that the PFO II conviction was void ab initio because
it was not rendered by a jury.
hearing on the motion.
He also requested an evidentiary
The Commonwealth filed a response
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contending that Ashcraft waived the right to a jury decision on
the PFO II charge.
In an opinion and order, the trial court
denied the motion.
This appeal followed.
First, we note that Ashcraft's complaint should have
been raised by way of a motion pursuant to RCr 11.42, rather than
CR 60.02.
A defendant must utilize RCr 11.42 prior to bringing a
CR 60.02 motion while he is in custody under sentence, probation
or parole.
(1983).
See Gross v. Commonwealth, Ky., 648 S.W.2d 853
CR 60.02 "is for relief that is not available by direct
appeal and not available under RCr 11.42."
Id. at 856.
See also
Commonwealth v. Gross, Ky., 936 S.W.2d 85, 88 (1997) (CR 60.02 is
intended to correct errors in judgments "not available by appeal
or otherwise, which were discovered after rendition of judgment
without fault of the party seeking relief.").
Nevertheless, we
will address the merits of appellant's complaint.
See, e.g.,
Case v. Commonwealth, Ky., 467 S.W.2d 367 (1971); Beecham v.
Commonwealth, 657 S.W.2d 234, 236 (1983).
In addition, because
Ashcraft has failed to demonstrate a material factual issue that
cannot be determined on the face of the record, he was not
entitled to a hearing on the motion, whether it is treated under
RCr 11.42 or CR 60.02.
See Stanford v. Commonwealth, Ky., 854
S.W.2d 742, (1993).
Ashcraft maintains that the PFO II conviction is void
because his criminal liability on the PFO charge was not
presented to a jury.
His argument relies primarily on
interpretation of KRS 532.080(1), which provides:
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When a defendant is found to be a persistent felony offender, the
jury, in lieu of the sentence of imprisonment assessed under KRS
532.060 for the crime of which such person presently stands
convicted, shall fix a sentence of imprisonment as authorized by
subsection (5) or (6) of this section. When a defendant is
charged with being a persistent felony offender, the
determination of whether or not he is such an offender and the
punishment to be imposed pursuant to subsection (5) or (6) of
this section shall be determined in a separate proceeding from
that proceeding which resulted in his last conviction. Such
proceeding shall be conducted before the court sitting with the
jury that found the defendant guilty of his most recent offense
unless the court for good cause discharges that jury and impanels
a new jury for that purpose.
Ashcraft contends that the general rule of statutory construction
requires a court to determine legislative intent from the clear
language of the statute.
See, e.g., Flying J. Travel Plaza v.
Commissioner, Transportation Cabinet, Ky., 928 S.W.2d 344, 347
(1996); Beckham v. Board of Educ. of Jefferson County, Ky., 873
S.W.2d 575, 577 (1994).
He argues that KRS 532.080(1) requires
that a jury determine guilt and fix the penalty on a PFO charge,
and that he could not legally plead guilty to the offense.
While we agree with Ashcraft's statement of statutory
construction, we disagree with his conclusion.
A court should
not interpret a statute in a manner that will result in an absurd
result.
Layne v. Newberg, Ky., 841 S.W.2d 181, 183 (1992);
Williams v. Commonwealth, Ky. App., 829 S.W.2d 942, 944 (1992).
In construing a statute, the words employed should be given their
ordinary meaning.
Lynch v. Commonwealth, Ky., 902 S.W.2d 813,
814 (1995); Commonwealth v. Shivley, Ky., 814 S.W.2d 572, 573
(1991); Mercer v. Commonwealth, Ky. App., 880 S.W.2d 899, 901
(1994).
A court should not interpret a statute beyond the text
or words used in an attempt to surmise the intent of the
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legislature.
See George v. Commonwealth, Ky., 885 S.W.2d 938,
940 (1994); Owensboro Cablevision, Inc. v. Libs, Ky. App., 863
S.W.2d 331, 333 (1993).
Accepting Ashcraft's interpretation of KRS 532.080(1)
would lead to an absurd result.
The purpose of this provision is
to ensure that the same jury that determines the defendant's
guilt on the initial felony conviction supporting the PFO charge
also determines guilt and the punishment on the PFO charge absent
"good cause."
Ashcraft's argument that the statute precluded a
guilty plea because he could not waive a jury decision on the PFO
charge is without merit.
Although a criminal defendant has no
federal or state constitutional right to jury sentencing, KRS
532.080 creates a state statutory right to jury sentencing for a
PFO charge.
White v. Commonwealth, Ky., 770 S.W.2d 222, 224
(1989); Commonwealth v. Johnson, Ky., 910 S.W.2d 229 (1995).
However, a defendant may waive even constitutional rights, as
long as he does so knowingly, intentionally and voluntarily.
See, e.g., North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,
27 L. Ed. 2d 162 (1970); Tollett v. Henderson, 411 U.S. 258, 93
S. Ct. 1602, 36 L. Ed. 2d 235 (1973);
Similarly, a defendant may
waive any state constitutional right to a jury trial on guilt or
innocence.
(1975).
Short v. Commonwealth, Ky., 519 S.W.2d 828, 831
RCr 9.26(1).
Thus, there is no constitutional
prohibition, and absent some other specific source of preclusion,
a defendant should be able to waive jury participation in
determining guilt and fixing a sentence for a PFO conviction.
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As for the statute itself, the language of the KRS
532.080(1) does not necessarily preclude a guilty plea to a PFO
charge.
The ability of a defendant to plead guilty and waive
both constitutional and statutory rights such as a jury trial was
well established by the time KRS 532.080(1) was enacted.
The principal rule of statutory construction
is that the applicability and scope of a
statute may be determined by ascertaining the
intended purpose of the legislature and by
considering the evil which the law intended
to remedy as well as other prior and
contemporaneous facts and circumstances which
shed intelligible light on the intention of
the General Assembly. In enacting any law,
the legislature is presumed to take
cognizance of the existing statutes and
conditions of the law so that when the
statute under consideration is ambiguous, the
new enactment is to be construed in
connection and in harmony with the existing
law as part of the general and uniform system
of jurisprudence.
Mitchell v. Kentucky Farm Bureau Mut. Ins., Ky., 927 S.W.2d 343,
346 (1996), overruled on other grounds, Nantz v. Lexington
Lincoln Mercury Subaru, Ky., 947 S.W.2d 36 (1997).
Giving the
words of the statute their ordinary meaning and interpreting the
statute to avoid an absurd result, we believe KRS 532.080(1) does
not mandate jury participation in determining guilt and the
sentence for a PFO charge under all circumstances.
While the
statute may create an initial affirmative right to jury
participation, it does not preclude a knowing and intentional
waiver of that right by the defendant.
The primary purpose of
KRS 532.080(1) was to create a separate or bifurcated proceeding
in prosecuting PFO cases and to have the same jury involved in
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the two stages.
It would be unreasonable and illogical to
construe KRS 532.080(1) as prohibiting waiver while allowing
waiver of jury participation in other areas including capital
murder.
See, e.g., Bevins v. Commonwealth, Ky., 712 S.W.2d 932
(1986), cert denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d
1010 (1987).
Therefore, we interpret KRS 532.080(1) as not
prohibiting a valid guilty plea in a prosecution for being a
persistent felony offender.
Ashcraft also implicitly raises the issue of the
validity of the guilty plea.
He contends that he was illiterate,
an alcoholic, and uneducated.
In order to be valid, a guilty
plea must be made knowingly, intelligently and voluntarily by a
competent defendant.
Brady v. United States, 397 U.S. 742, 90 S.
Ct. 1463, 25 L. Ed. 2d 747 (1970); Centers v. Commonwealth, Ky.
App., 799 S.W.2d 51, 54 (1990).
The test for determining the
validity of a guilty plea is whether it represents a voluntary
and intelligent choice among alternative courses of action open
to the defendant.
North Carolina v. Alford, 400 U.S. 25, 31, 91
S. Ct. 160, 164, 27 L. Ed. 2d 163 (1970); Kiser v. Commonwealth,
Ky. App., 829 S.W.2d 432, 434 (1992).
The validity of a guilty
plea is determined from the totality of the circumstances
surrounding it, rather than from reference to some specific key
words recited at the time it is entered.
Kotas v. Commonwealth,
Ky., 565 S.W.2d 445, 447 (1978); Sparks v. Commonwealth, Ky.
App., 721 S.W.2d 726, 727 (1987).
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A review of the record and the videotape of the PFO
guilty plea hearing reveals that the guilty plea was entered
knowingly, intelligently and voluntarily.
During the hearing,
the trial court informed Ashcraft of his right to call witnesses,
the right to cross-examine witnesses, the right not to testify
himself, the burden on the Commonwealth to prove guilt, and the
right to have an attorney represent him.
The trial court
informed Ashcraft that the maximum penalty for conviction as a
PFO I with the underlying first-degree manslaughter conviction
(Class B felony) was twenty years to life.
Ashcraft indicated
that he understood the charges, that he wished to plead guilty to
the PFO charge, and that he was giving up his constitutional
rights.
In open court, Ashcraft signed the "Waiver of Further
Proceedings and Petition to Enter Plea of Guilty" form, which
explicitly described his various rights.
Ashcraft stated that he
had discussed the guilty plea with his attorney and was satisfied
with her advise.
Ashcraft's attorney told the trial judge that
she had discussed with Ashcraft his rights and the consequences
of the guilty plea, which included waiver of those rights.
Ashcraft indicated that he was not under the influence of any
drugs or alcohol, and that he understood the proceeding.
More
importantly, on two occasions during the guilty plea proceeding,
the trial judge specifically told Ashcraft that he had a right to
have the jury determine his guilt on the PFO charge and to
recommend a sentence.
The trial court informed Ashcraft that by
pleading guilty, he was giving up that right and the trial court
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would fix the punishment.
Ashcraft responded affirmatively and
indicated that he understood he was waiving further participation
by the jury.
The record refutes any claim that Ashcraft did not
enter his guilty plea to the PFO charge knowingly, intelligently
and voluntarily.
See Hulett v. Commonwealth, Ky. App., 834
S.W.2d 688 (1992) (finding guilty plea to PFO charge following
jury conviction on underlying felony was entered knowingly and
voluntarily); Commonwealth v. Crawford, Ky., 789 S.W.2d 779
(1990)(guilty plea proceeding sufficient to demonstrate entry of
valid guilty plea).
Consequently, the trial court did not err in
ruling that KRS 532.080(1) did not preclude Ashcraft from
entering a guilty plea to the PFO charge and that his guilty plea
was valid because it was entered voluntarily, intelligently and
knowingly.
The trial court properly dismissed the motion to
amend the judgment.
For the foregoing reasons, we affirm the order of the
Fayette Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ray Ashcraft, Pro Se
Burgin, Kentucky
A. B. Chandler III
Attorney General
Joseph R. Johnson
Assistant Attorney General
Frankfort, Kentucky
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