JOHN BRENTON PRESTON v.COMMONWEALTH OF KENTUCKY
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RENDERED: May 7, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002339-MR
JOHN BRENTON PRESTON
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE STEPHEN FRAZIER, JUDGE
ACTION NO. 00-0-04824
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDULGI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
John Brenton Preston (Preston) appeals the
September 2, 1997, order entered by the Johnson Circuit Court
denying his CR 60.02 motion.
We affirm.
On August 25, 1964, appellant and Melvin Caldwell
(Caldwell) were indicted by the Johnson County Grand Jury for the
June 6, 1964, armed robbery of George B. Blaton.
Following a
jury trial in Johnson Circuit Court on January 25-27, 1965,
appellant and Caldwell were both found guilty as charged and
sentenced to life in prison.
The then Court of Appeals of
Kentucky affirmed appellant’s conviction in an opinion rendered
June 10, 1966.
Preston v. Commonwealth, Ky., 406 S.W.2d 405
(1966).
Preston’s petition for rehearing was denied and the
United States Supreme Court denied his petition for writ of
certiorari on February 13, 1967.
In 1975, the Kentucky General Assembly enacted the
Penal Code which changed the maximum sentence for armed robbery
from life imprisonment to twenty years.
KRS 515.020.
Appellant
filed his first CR 60.02 motion for relief before the Johnson
Circuit Court on January 18, 1989.
In his twenty page motion,
Preston requested the court “to reduce movant’s [Preston’s]
present life sentence to the maximum twenty (20) years
imprisonment permitted by law.”
After several continuations and
delays, some of which were a result of Preston being granted
parole then having his parole violated, a hearing on his CR 62.02
motion was held before the court on June 25, 1990.
Thereafter,
on December 13, 1990, the trial court entered an order denying
appellant’s CR 60.02 motion.
In its one page order, the court
stated:
THE [sic] Court has conducted extensive
research of the issues raised by appellant.
Even though the Court agrees with the
applicant that his years of confinement is
“enough punishment” for the crime of which he
was convicted, the Court is unable to discern
any rule of law empowering the Court to
terminate the applicant’s sentence.
No appeal was taken from this order.
Preston was again paroled but that parole release was
violated and he was returned to prison.
Thereafter the parole
board determined that Preston would not be eligible for parole
and must serve out his life sentence.
Appellant then filed
another CR 60.02 motion seeking exceptional and extraordinary
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relief.
This motion was certified by appellant as being mailed
to the Johnson County Commonwealth’s Attorney on February 15,
1996.
A letter dated February 18, 1997, from Preston to Vickie
Rice, the Johnson County Circuit Clerk, references the “enclosed
motion under Civil Rule 60.02" and seeks to have the motion filed
in forma pauperis.
It is unclear from the record when the clerk
received the letter and the CR 60.02 motion; however, the motion
was not officially entered into the court record until
September 16, 1997.
On that date (September 16, 1997), the trial
judge, having been made aware that the original motion had not
been file stamped, ordered the CR 60.02 motion be filed.
This
matter is noted and of importance in that appellant’s CR 60.02
motion was denied by order of the Johnson Circuit Court on August
29, 1997 (entered September 2, 1997), approximately 2-3 weeks
before the motion was officially “file stamped.”
However, it should also be noted that on May 1, 1997,
the record reflects Preston filed a motion to “amend and
supplement pending motion for exceptional and extraordinary
relief under civil rule 60.02 to include judicial consideration
of the fifteen (15) issues and allegations attached and appended
hereto.”
(emphasis added).
Thereafter, on July 25, 1997,
Preston filed a motion for default judgment in which he again
references his February 1997 “motion for exceptional and
extraordinary relief under CR 60.02.”
In this motion he alleges
that by certified mail dated February 5, 1997, he forwarded his
CR 60.02 pleading to the court and seeks relief under his pending
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CR 60.02 motion.
Appellant appeals the court order entered
September 2, 1997, denying his CR 60.02 motion.
Before we begin our discussion of the issues it should
be noted that appellant was appointed counsel to pursue this
appeal.
Appellant’s appointed counsel timely filed her brief on
March 18, 1998.
Preston also filed an appellant’s brief, pro se,
on March 3, 1998.
Each brief raises the same four separate
issues; however, the supporting arguments vary in the briefs.
We
will first examine appellant’s argument that the court’s order
entered September 2, 1997, is void because of the procedural
defect of not having the original motion “file stamped” until
after the order was entered.
Appellant first argues that because of the “error” by
the clerk, he was denied “due process of law both substantively
and procedurally.”
Appellant’s counsel questions whether or not
the trial court even had jurisdiction over the matter.
Appellant’s arguments on this issue are without merit.
First, it
should be noted that the original motion was in the file, it was
just not “file stamped.”
This situation most likely occurred due
to appellant’s failure to pay the required filing fee.
As such,
the circuit clerk could not enter the motion at the time it was
originally received.
Thereafter, on February 18, 1997, appellant
sent a letter to the clerk indicating his indigency and
requesting he be permitted to pursue this action in forma
pauperis.
Although there is no court order in the file granting
the motion, the record does reflect the May 1, 1997 “motion to
amend”, the July 25, 1997 “motion for default judgment”, and the
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August 25, 1997 “motion to supplement” all of which reference the
original CR 60.02 motion were properly “file stamped.”
one must assume appellant’s motion was granted.
As such,
Pursuant to CR
5.05(4) if the motion to proceed in forma pauperis is granted,
any matter filed shall be considered filed on the date it was
tendered.
Finally, in his order the trial judge specifically
stated that he is addressing and denying appellant’s motion for
“exceptional and extraordinary relief and (CR) 60.02.”
Later in
the order the trial court states, “[o]nce again the Movant is
before the Court with a (CR) 60.02 motion.”
There is no doubt
that the trial court was specifically addressing Preston’s CR
60.02 motion and that all appellant’s issues and arguments were
reviewed and addressed by the court.
The fact that the motion
was not “file stamped” was a clerical error which the court
properly addressed once the omission was brought to its
attention.
CR 60.01.
Even if we were to find that the trial
court committed error (which we do not) in this matter, it would
be considered harmless in that no substantive rights were
violated and Preston had been afforded his full panoply of
constitutional rights before the court denied his motion.
Appellant’s next three arguments can be addressed at
the same time.
Preston contends that the trial court erred in
denying his CR 60.02 motion in holding that there was no legal
authority upon which to grant the sought after relief.
In
conjunction with this error, appellant argues that his life
sentence constitutes cruel, excessive and unusual punishment and
violates the equal protection clause.
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Specifically, appellant
argues that his constitutional rights under the Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution and
Section Two, Three and Seventeen of the Kentucky Constitution
were violated.
We do not agree.
Although Preston makes a very moving and sympathetic
argument that he is being singled out and is the victim of an
antiquated law and resulting punishment, the facts do not support
his position.
It is true that the law under which he was
sentenced in 1965 was changed in 1975 to reduce the maximum
penalty from life imprisonment to twenty (20) years.
Preston may
be the only individual who will serve out the life imprisonment
sentence imposed over thirty years ago.
However, the law and
sentence is not the only reason for this situation.
Preston’s
own subsequent actions are primarily responsible for his
predicament.
Appellant has been paroled at least six (6) times
(the first being in 1971 prior to the new law being enacted, the
last in 1996 after he filed his first CR 60.02) and each time he
violated his parole and was returned to prison.
Additionally, he
has numerous violations while in prison which have subsequently
caused him to lose his privilege to be reconsidered for parole
again.
The sentence he received was constitutional at the time
it was imposed and has been determined to be constitutional by
this state’s highest court.
(Most recently in Land v.
Commonwealth, a to be published opinion rendered February 19,
1999, 98-SC-000427-TG).
In Land, a case similar in that a pre-
penal code life sentence was imposed for the criminal offense of
rape, the Supreme Court stated, in part:
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On several occasions this Court has
addressed the constitutionality of a life
sentence of life without the possibility of
parole for rape authorized by the former KRS
435.090. As noted by Appellant in his brief,
the decision in Workman v. Commonwealth, Ky.,
429 S.W.2d 374 (1968), held that the
imposition of life without the possibility of
parole for rape was unconstitutional when
imposed upon a juvenile; and questioned the
logic of authorizing such a sentence for a
rape conviction but not for a murder
conviction. Id. at 377. However, the
opinion specifically upheld the validity of
imposing such a sentence upon an adult
offender. Id. Moreover, in cases subsequent
to Workman, the Court has consistently held
that the sentence of life without the
possibility of parole for rape imposed prior
to the institution of the penal code is
constitutional. McDonald v. Commonwealth,
Ky., 569 S.W.2d 134 (1978), cert. denied, 439
U.S. 1119 (1979); Green v. Commonwealth, Ky.,
556 S.W.2d 684 (1977); and Fryrear v.
Commonwealth, Ky., 507 S.W.2d 144 (1974).
Both McDonald and Green were decided after
the adoption of the penal code, which removed
the authorization of a sentence of life
without the possibility of parole for any
offense.1 The Sixth Circuit has also
rejected the argument that the sentence of
life imprisonment without the possibility of
parole imposed under the former law violated
the federal constitution. Moore v. Cowan,
560 F.2d 1298 (6th Cir. 1977), cert. denied,
435 U.S. 929 and 436 U.S. 960 (1978).
Preston’s sentence is not the problem.
Preston’s actions on the
date the robbery was committed and his continuous failure to
comply with the laws of this Commonwealth thereafter are the
reasons he is serving out his sentence.
Even if we were to address the issue of whether or not
the trial court erred in denying appellant’s motion, we find no
1
Effective July 15, 1998, the legislature reinstated a
sentence of life without the possibility of parole as an
alternative sentence in cases in which the defendant qualifies
for the death penalty. KRS 532.030(1).
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basis to reverse.
Essentially the judge concluded that “[t]he
Court has once again researched the law and cannot find any law
which will empower the court to terminate the Movant’s
[Preston’s] sentence.”
Neither appellant nor his counsel cite
any statutory or case law authority which supports their
contentions.
Appellant was properly sentenced under the law in
effect at the time he committed the armed robbery and the
subsequent adoption of the Kentucky Penal Code, which imposes a
different penalty range for this act, does not render appellant’s
sentence cruel and unusual.
In light of the crime committed and
the potential punishment available at the time it can hardly be
said that the “punishment in question is of such character as to
shock the general conscience and to violate the principles of
fundamental fairness.”
374, 378 (1968).
Workman v. Commonwealth, Ky., 429 S.W.2d
The fact that Preston repeatedly violated (six
times) the privilege of parole is the reason he may be the only
individual still incarcerated on this type of pre-penal code
violation.
More important to the review of this action is the fact
that this is a successive CR 60.02 motion.
As such, the lower
court and this Court need not review the merits of appellant’s
arguments.
1989.
Preston filed his first CR 60.02 motion in January
At that time he essentially raised the same issues he
addressed in his second CR 60.02 motion filed February 1997.
first motion was denied and appellant did not appeal.
In his
motion to supplement his pending CR 60.02 motion, appellant
stated:
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The
Regarding the Court’s erroneous
construction of the specific relief the
petitioner sought in his prior petition,
petitioner did not request the Court to
“terminate” the sentence, or void the 1964
conviction. Instead, the relief sought then
is precisely the same as the relief sought
now - not to terminate the sentence or void
the conviction, but to enter a quiet and
unpublicized order reducing petitioner’s
draconian life sentence to a term of twenty
[or more] years which represents the maximum
punishment that can presently be assessed in
Kentucky against one convicted of robbery.
(emphasis original).
Preston admits that the relief sought in each of his CR 60.02
motions is “precisely the same.”
As the Commonwealth points out in its brief, the
purpose of CR 60.02 is to:
...bring before the court that pronounced
judgment errors in matter of fact which (1)
had not been put in issue or passed on, (2)
were unknown and could not have been known to
the party by the exercise of reasonably
diligence and in time to have been otherwise
presented to the court, or (3) which the
party was prevented from so presenting by
duress, fear, or sufficient cause. Gross v.
Commonwealth, Ky., 648 S.W.2d 853, 856
(1983); McQueen v. Commonwealth, Ky., 948
S.W.2d 415, 416 (1997). In summary, CR 60.02
is not a separate avenue of appeal to be
pursued in addition to other remedies, but is
available only to raise issues which cannot
be raised in other proceedings. McQueen,
supra.
CR 60.02 motions are not intended merely as an
additional opportunity to re-litigate the same issues which
“reasonably have been presented” by direct appeal.
S.W.2d at 416.
McQueen, 948
The purpose underlying this construction of
CR 60.02 is to prevent the re-litigation of issues which either
were or could have been litigated in a similar proceeding.
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Id.
CR 60.02 is not a separate avenue of appeal to be pursued in
addition to other remedies; it is available only to raise issues
which could not have been raised in other proceedings.
Id.
Additionally, the movant must demonstrate why he is entitled to
this special, extraordinary relief.
Id. In this case, it is
clear from the record and from Preston’s own admission that his
motion for relief is an attempt to re-litigate these same issues
considered by the trial court in his first CR 62.02 motion.
Merely invoking the provision of CR 60.02 does not automatically
provide Preston with a new forum in which to present those same
arguments and allegations that were considered earlier and
rejected.
In Gross, supra, the Court held that a defendant
cannot be afforded a “second bite of the apple” by filing
successive post-conviction relief motions.
The substance of
Preston’s second CR 60.02 motion is essentially the same as the
first.
We find no error in the trial court’s denial of
appellant’s CR 60.02 motion.
For the foregoing reasons, the order of the Johnson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, KY
A. B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, KY
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