KENNETH J. SIMPSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 20, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002873-MR
KENNETH J. SIMPSON
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
INDICTMENT NO. 90-CR-00609
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge:
Fayette
Circuit
Kenneth Simpson appeals from an order of the
Court
that
denied
his
pro
se
motion
for
resentencing brought pursuant to Kentucky Revised Statute (KRS)
532.050 and his subsequent motion to alter or amend.
In the summer of 1989, Simpson entered into a sexual
relationship
with
C.J.,
the
companion, Harold Johnson.
living in Laurel County.
twelve-year
old
son
of
his
male
At that time Johnson and Simpson were
In the late summer of 1990, Simpson moved
to Lexington, Kentucky, in Fayette County following the breakup of
his relationship with Johnson.
Simpson, however, continued a
sexual relationship with C.J. After Simpson’s activities with C.J.
were
reported
to
the
Department
for
Social
Services,
he
was
arrested on various charges related to illegal sexual contact with
C.J.
On September 18, 1990, the Fayette County grand jury
indicted Simpson on one felony count of sodomy in the second
degree1 and one misdemeanor count of sexual abuse in the second
degree.2
At that time, Simpson was facing charges on numerous
counts of sodomy in Laurel County also involving C.J.3
On October
8, 1990, Simpson entered a guilty plea to second-degree sodomy
pursuant to an agreement with the Commonwealth, which recommended
a sentence of five years on the sodomy count and moved to dismiss
the
second-degree
sexual
abuse
count.
The
circuit
court
temporarily accepted the guilty plea pending a subsequent final
sentencing hearing and review of a Presentence Investigation Report
(PSI).
The circuit court ordered that a copy of the PSI be
provided to Simpson and his attorney prior to final sentencing. On
November 2, 1990, Simpson appeared in court with his attorney, who
moved for a continuance to allow him additional time to investigate
statements in a victim impact statement that Simpson indicated he
wanted to challenge.
On November 9, 1990, Simpson again appeared with his
attorney for sentencing.
When queried by the court, Simpson’s
1
Ky. Rev. Stat. (KRS) 510.080.
2
KRS 510.120.
3
Simpson was indicted on August 22, 1990, in Laurel County
on three felony counts of first-degree sodomy, thirteen counts of
second-degree sodomy and two counts of sexual abuse.
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attorney stated that he and his client had received a copy of the
PSI and they did not wish to make any additions or corrections to
the report.
While arguing for leniency for his client, Simpson’s
attorney stated that “other than some alcohol related offenses in
the past, Kenneth’s prior criminal record doesn’t suggest anything
of this nature.”
The attorney also addressed Simpson’s challenges
to portions of the victim impact statement and the pending charges
in Laurel County.
The circuit court expressed reservations about
the plea agreement and continued sentencing for three weeks in
expectation of a resolution of the charges in Laurel County.
At
the sentencing hearing on November 30, 1990, defense counsel
informed the circuit court that the Laurel County case had not been
resolved.
The court continued sentencing for another month.
On January 4, 1991, defense counsel told the court that
the parties were unable to reach agreement in Laurel County.
The
circuit court indicated it would proceed with sentencing again
asking defense counsel if he had any additions or corrections to
the
original
PSI.
The
circuit
court
decided
to
reject
the
recommendation of the Commonwealth and allowed Simpson to withdraw
his guilty plea.
On February 1, 1991, Simpson appeared with his attorney
and indicated that he wanted to enter a guilty plea without a plea
agreement or recommendation by the Commonwealth.
Counsel stated
that he and Simpson had been provided a copy of the PSI prior to
the earlier sentencing hearings.
The court again reviewed with
Simpson the waiver of his various constitutional rights.
Counsel
noted that a PSI had already been filed in the record, so the court
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postponed final sentencing for updating of the PSI custody time
credit.
On February 22, 1991, defense counsel again indicated to
the court that he and his client had reviewed the PSI, agreed with
the updated custody time credit calculation, and declined the
opportunity to make any corrections or additions.
The circuit
court sentenced Simpson to ten years for second-degree sodomy and
twelve months for second-degree sexual abuse to run concurrently.
On January 6, 1997, Simpson filed a pro se Motion to
Amend Pre-Sentence Investigation report pursuant to Kentucky Rule
of Civil Procedure (CR) 60.02(a) alleging that the PSI prepared in
the Fayette County prosecution contained erroneous convictions for
driving under the influence (DUI) and possession of narcotic
substances from Laurel County.
He stated that after he moved for
amendment of the PSI prepared in the Laurel County prosecution in
September 1993 on similar grounds, the Laurel Circuit Court ordered
the removal of the DUI and drug possession convictions based on a
review of the court records.
On January 9, 1997, the Fayette
Circuit Court summarily denied the motion.
On July 12, 1999, Simpson filed a Motion to Correct
Errors
seeking
expungement
of
the
DUI
and
drug
possession
convictions in the Fayette County PSI pursuant to Kentucky Rule of
Criminal Procedure (RCr) 10.10 on the same grounds as stated in the
prior CR 60.02 motion.
He alleged that the presence of these
convictions in the prior criminal history section of the PSI
prepared for the Fayette County prosecution effectively prevented
him from being granted parole.
He asked the circuit court to order
an
records
updated
review
of
court
-4-
for
verification
of
his
allegation.
Based on the motion, the circuit court requested a
response from the Division of Probation and Parole on Simpson’s
allegation. On July 22, 1999, the probation and parole officer who
prepared the Fayette County PSI responded that he could not verify
the
existence
of
the
misdemeanor
DUI
and
drug
possession
convictions because the Laurel District Court had not retained
records of convictions from the time period involved, 1983-1987,
and they predated the period of computerized records.
The officer
stated that he normally would object to altering a PSI nine years
after it was prepared.
Given the fact that the misdemeanor
convictions involved originated in Laurel County, however, the
probation and parole officer recommended that the Fayette Circuit
Court defer to the decision of the Laurel Circuit Court, which had
ordered removal of the references to the misdemeanor convictions in
the PSI prepared for the Laurel County prosecution.
On July 29,
1999, the Fayette Circuit Court denied Simpson’s RCr 10.10 motion
based on the response provided by the probation and parole office.
On
October
8,
1999,
Simpson
filed
a
Motion
for
Resentencing pursuant to KRS 532.050 again seeking amendment of the
PSI
in
the
Fayette
County
case.
He
alleged
that
two
DUI
convictions, four traffic violations and a possession of marijuana
conviction between 1983-1987 were erroneously included in the PSI.
He said that a check of the National Crime Information Center
(NCIC) records ordered by the Laurel Circuit Court in September
1993 indicated that he was not the person involved in those
offenses.
Simpson
stated
that
there
was
no
available
administrative remedy through the Department of Corrections and
-5-
that he was suffering adverse consequences because of the presence
of the erroneous information on his PSI.
Simpson included an
affidavit from his brother stating that he was physically unable to
drive between 1983-1987.
On October 20, 1999, the circuit court
denied the motion in part because Simpson and his counsel were
given an opportunity to review the PSI prior to sentencing and made
no corrections at the sentencing hearing.
Simpson filed a motion
to alter or amend the order, which the court summarily denied.
This appeal followed.
Simpson argues on appeal that the circuit court had
authority to order amendment or correction of the PSI under RCr
10.10, which deals with clerical errors.
He asserts that the
circuit court should have corrected the PSI because the probation
and
parole
officer
who
prepared
the
report
did
not
dispute
Simpson’s claim that the misdemeanor entries were erroneous.
We
believe that Simpson is not entitled to relief for several reasons.
First, we note that on appeal, Simpson, through counsel,
relies on RCr 10.10, whereas the circuit court order underlying
this appeal involved a motion filed pursuant to KRS 532.050.
The
later was the third in a series of motions seeking correction of
the PSI based on the exact same grounds.
Simpson did not appeal
the circuit court’s orders denying his CR 60.02 motion and RCr
10.10 motion, and therefore, they became binding final judgments
subject to the principles of res judicata and collateral estoppel.4
Consequently, Simpson was barred from relitigating the issue of the
4
See generally, Yeoman v. Commonwealth, Ky., 983 S.W.2d 459
(1998); Moore v. Commonwealth, Cabinet for Human Resources, Ky.,
954 S.W.2d. 317 (1997)
-6-
allegedly erroneous PSI and the motion for resentencing involved in
the current appeal could have been summarily denied on procedural
grounds.
Second, the Commonwealth argues that the issue is moot
because Simpson has completed service of the ten-year sentence
imposed by the Fayette Circuit Court.5
Simpson alleges that the
Fayette County PSI adversely affects his parole opportunities but
fails to provide any facts supporting that allegation.
While
Simpson presumably is still serving the sentence he received in the
Laurel County prosecution,6 it is unclear how or why the Fayette
County PSI would be utilized or relied upon by the Parole Board,
rather than the PSI prepared for the sentencing in the Laurel
County case, which the Laurel Circuit Court ordered amended to
delete the 1983-1987 misdemeanor convictions at issue in this
appeal.
Furthermore, even if the Fayette County PSI was utilized
by the Parole Board, Simpson could explain the discrepancy and the
alleged errors in it at the parole hearing.
Accordingly, Simpson
has failed to demonstrate any actual prejudice because of errors in
the PSI.
Finally, our review of the videotape record reveals that
the circuit court meticulously complied with KRS 532.050.
Under
the statute, the court must provide defense counsel a copy of the
PSI, advise the defendant or his counsel of its factual contents
5
The Commonwealth calculates Simpson’s maximum expiration
serve out date as August 17, 2000, based on a ten-year sentence
imposed on February 22, 1991, with a 185 day jail time credit.
6
The record does not contain any documents or information
on the sentence imposed by the Laurel Circuit Court.
-7-
and afford the defendant a fair opportunity and a reasonable period
of
time
to
sentencing
controvert
was
its
continued
contents.7
several
times
In
this
upon
case,
request
final
of
the
appellant. On each occasion, defense counsel indicated in response
to inquiries from the court that he and his client had received a
copy of PSI and did not wish to make any corrections or additions.
If his attorney did not review the PSI with him as he now claims,
Simpson certainly had ample opportunity and an obligation to bring
that to the court’s attention.
In addition, Simpson waited over six years from the date
he was sentenced before filing his first motion to correct the PSI.
More importantly, he did not raise the issue of the erroneous
criminal history in the Fayette County PSI until approximately 3½
years after the Laurel County PSI was amended.
Even if he did not
review the Fayette County PSI prior to sentencing, he certainly was
on notice of possible discrepancies in it based on the alleged
errors he had corrected in the Laurel County PSI.
As a result of Simpson’s delay in challenging the Fayette
County PSI, the probation and parole office was unable to verify
his allegation of errors because the district court records had
been disposed of.
The Fayette Circuit Court was not obligated to
rely on the actions of the Laurel Circuit Court.
We agree with the
circuit court that Simpson waived any claim that the Fayette County
PSI contained factual errors. Thus, we cannot say that the circuit
7
KRS 532.050 (5)(now (6)).
Ky., 740 S.W.2d 943 (1987).
-8-
See also Commonwealth v. Bush,
court erred in denying Simpson’s motion to correct errors in the
PSI.
The Fayette Circuit Court order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Kathryn H. Dunnigan
Assistant Attorney General
Frankfort, Kentucky
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