RUSSELL ROBINSON v. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: April 30, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY MORRIS, JUDGE
ACTION NO. 81-CR-001198
COMMONWEALTH OF KENTUCKY
** ** ** ** **
HUDDLESTON, JOHNSON, AND KNOPF, JUDGES.
Russell Robinson (Robinson) appeals from the
order of the Jefferson Circuit Court entered on February 3, 1998,
denying his motion for modification of sentence.
the record, we affirm.
On the early morning of October 9, 1981, Robinson
entered a Five Star convenience store, pointed a handgun at the
clerk, and told him it was a holdup.
Robinson took some money
from the store’s cash register, and then took money out of the
While Robinson was taking the money out of the
cash register, he activated the store’s alarm system, which
alerted the police.
As Robinson was leaving the store, police
officer Gayle Clemons (Officer Clemons) arrived to investigate.
Robinson pointed his pistol at Officer Clemons and pulled the
trigger twice, but the gun failed to fire.
After a struggle,
Officer Clemons arrested Robinson at the scene.
On October 28, 1981, the Jefferson County Grand Jury
indicted Robinson on two felony counts of robbery in the first
degree (Robbery I) (Kentucky Revised Statutes (KRS) 515.020) (one
count concerned the theft of money from the Five Star Store and
the other count concerned the theft of money from the clerk); one
felony count of criminal attempt to commit murder (KRS 506.010
and 507.020), one misdemeanor count of resisting arrest (KRS
520.090), and one count of being a persistent felony offender in
the second degree (PFO II) (KRS 532.080).
The misdemeanor charge
was dismissed and Robinson was tried on the remaining felony
The jury found Robinson guilty on all counts and
initially recommended prison sentences of ten years on each of
the two robbery counts and eighteen years for criminal attempt to
The jury also found Robinson guilty of being a
PFO II and recommended that his sentences be enhanced with the
Robbery I sentences being enhanced to twenty-one years and thirty
and the criminal attempt to commit murder sentence being
enhanced to life imprisonment.
On July 14, 1982, Robinson’s attorney filed a motion
for a new trial and a motion for judgment notwithstanding the
As grounds for the motions, Robinson argued, inter
alia, that the trial court erred by giving instructions on two
counts of robbery because the thefts occurred in a single
continuous transaction, and that the trial court erred by failing
to give an instruction of wanton endangerment in the first degree
as a lesser-included offense of criminal attempt to commit
The trial court denied both motions.
On July 19, 1982, the trial court sentenced Robinson to
prison for twenty-one years on one count of Robbery I, for thirty
years on the second count of Robbery I, and for life on the count
of criminal attempt to commit murder, with all the sentences to
On August 2, 1982, Robinson filed a direct appeal of
While this appeal was pending, Robinson filed a
motion to vacate or set aside the judgment pursuant to Kentucky
Rules of Civil Procedure (CR) 60.02(f).
In the motion, Robinson
argued that the evidence was insufficient to sustain a conviction
for criminal attempt to commit murder, and that the
constitution’s Double Jeopardy Clause was violated by the two
separate robbery convictions because they involved a single
course of conduct.
The trial court denied the motion on
procedural grounds because a direct appeal was still pending.
Robinson appealed the denial of the CR 60.02 motion.
affirmed the trial court’s denial of the CR 60.02 motion on
January 6, 1984, and stated that RCr 11.42 was the appropriate
post-judgment procedure for Robinson to follow.
On July 6, 1983, the Kentucky Supreme Court affirmed
Robinson’s convictions in an unpublished opinion.
In its opinion, the Court rejected
Robinson’s argument that he was entitled to a jury instruction on
wanton endangerment as a lesser-included offense of criminal
attempt to commit murder because there was a lack of evidence to
support such an instruction.
On November 26, 1984, Robinson filed an RCr 11.42
Robinson also filed an accompanying motion for leave to
supplement the record following appointment of counsel in part
because under RCr 11.42(3), “should Movant not raise all
available grounds that could and should be raised in the motion
to vacate he is barred to raise [sic] additional issues in a
subsequent RCr 11.42 motion.”
the following five issues:
In this motion, Robinson raised
(1) whether there was insufficient
evidence to support the conviction for criminal attempt to commit
murder; (2) whether the prohibition against double jeopardy
prevented separate convictions for robbery of both the store and
the clerk; (3) whether the PFO II conviction was invalid because
the underlying prior felony conviction was statutorily invalid;
(4) whether defense counsel provided ineffective assistance; and,
(5) whether appellate counsel rendered ineffective assistance in
his direct appeal.
On December 9, 1984, the trial court denied the RCr
11.42 motion on the merits.
On January 2, 1985, Robinson filed
an appeal of the trial court’s denial of his RCr 11.42 motion.
On October 16, 1985, this Court granted the Commonwealth’s motion
to dismiss based on the procedural grounds that the appeal was
not timely filed.
Robinson did not seek discretionary review of
this Court’s order from the Kentucky Supreme Court.1
On January 22, 1998, Robinson filed the motion for
modification of sentence that is at issue in the current appeal.
In the motion, Robinson relied upon KRS 532.070 and 500.030 and
made the following claims:
(1) that double jeopardy prohibited
the convictions for two separate counts of robbery; (2) that
Robinson’s prior felony conviction was improperly used to enhance
the substantive robbery and criminal attempt to commit murder
sentences, as well as to support the PFO II offense; and, (3)
that there was insufficient evidence to support the criminal
attempt to commit murder conviction, rather than the lesser
offense of wanton endangerment.
On February 3, 1998, the trial
court summarily denied the motion, and this appeal followed.
A review of the record reveals that Robinson’s current
motion is procedurally barred under the successive motions
Robinson argues that the successive motions principle
does not apply because his motion was filed pursuant to KRS
However, KRS 532.070 does not afford Robinson the
relief he seeks.
In August 1996, Robinson’s petition for a writ of habeas
corpus in which he raised the same issues in the current appeal
was denied by the United States District Court.
A trial court generally loses jurisdiction to modify a
judgment ten days after it becomes final.
Marcum, Ky., 873 S.W.2d 207, 211 (1994).
See Commonwealth v.
In Silverburg v.
Commonwealth, Ky., 587 S.W.2d 241 (1979), while the Court noted
that KRS 532.070 allowing modification of a felony sentence does
not contain or define a time period within which the judgment may
be modified, the Court determined that under RCr 1.10, CR 59.05
would apply to create the ten-day time period for modifying a
Id. at 244.
Once a trial court loses
jurisdiction to modify a criminal judgment, “[i]t [can] be
reinvested with jurisdiction only upon the filing of a proper
motion under RCr 11.42 or CR 60.02, or a petition for a writ of
habeas corpus under KRS 439.020, et seq.”
Commonwealth, Ky., 964 S.W.2d 803, 804 (1998).
Robinson’s motion contained only a request to reduce the sentence
rather than an immediate release from prison, it cannot be
considered to constitute a petition for habeas corpus.
Hudson v. Commonwealth, Ky., 932 S.W.2d 371, 373 (1996); Brumley
v. Seabold, Ky.App., 885 S.W.2d 954, 956 (1994).
Robinson’s motion must be treated as having been filed under
either RCr 11.42 or CR 60.02, and these motions are subject to
the successive motions principle.
In Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983),
the Kentucky Supreme Court set out the procedure for challenging
a criminal conviction.
A defendant must first bring a direct
appeal when available and state every ground of error of which he
or his counsel is reasonably aware.
Id. at 857.
defendant in custody or on probation or parole must utilize RCr
11.42 to raise errors of which he is aware or should have been
aware during the period that remedy is available.
disposition of that [RCr 11.42] motion, or waiver of the
opportunity to make it, shall conclude all issues that reasonably
could have been presented in that proceeding.”
See also RCr
11.42(3); McQueen v. Commonwealth, Ky., 949 S.W.2d 70, 71 (1997),
cert. denied, ___ U.S. ___, 117 S.Ct. 2536, 138 L.Ed.2d 1035
(1997) (defendant “precluded from raising issues in a successive
RCr 11.42 motion which were or could have been raised in the
first motion”); Hampton v. Commonwealth, Ky., 454 S.W.2d 672, 673
(1970) (“[t]he courts have much more to do than occupy themselves
with successive ’reruns’ of RCr 11.42 motions stating grounds
that have or should have been presented earlier”).
successive motions principle applies even though an appeal was
dismissed on procedural grounds and the merits of the first
motion were not addressed on appeal.
Ky., 511 S.W.2d 232 (1974).
Lycans v. Commonwealth,
In addition, a claim that is raised
and rejected on direct appeal may not be reconsidered under an
RCr 11.42 motion.
Sanborn v. Commonwealth, Ky., 975 S.W.2d 905,
913 (1998); Wilson v. Commonwealth, Ky., 975 S.W.2d 901, 903
In the case at bar, Robinson’s attorney raised the
claims of double jeopardy and insufficiency of evidence for the
criminal attempt to commit murder conviction during the trial and
in the motion for a new trial.
The Kentucky Supreme Court
expressly rejected the insufficiency of evidence claim on direct
Two of the three issues raised in Robinson’s current
motion to modify the judgment were raised and rejected by the
trial court in his initial RCr 11.42 motion.
Even though this
Court dismissed his appeal of the trial court’s denial of the RCr
11.42 motion on procedural grounds, Robinson is precluded from
raising the same issues in a subsequent RCr 11.42 motion.
Robinson could have and should have raised the
third issue involving double enhancement with the PFO II charge
in his direct appeal or the initial RCr 11.42 motion.
record demonstrates, all of the issues raised in the current
motion either were or could have been raised in earlier
proceedings, and therefore Robinson cannot raise them in a
subsequent collateral attack.
As a result, the trial court
properly denied Robinson’s motion for modification of sentence.2
For the foregoing reasons, we affirm the order of the
Jefferson Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Russell Robinson, Pro Se
West Liberty, Ky
Hon. A. B. Chandler III
We note that if Robinson’s motion were treated as having
been filed pursuant to RCr 11.42, it would also be barred by the
three-year time limitation in Subsection 10.
Hon. Vickie L. Wise
Assistant Attorney General