FREDDIE HAYES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001913-MR
FREDDIE HAYES
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 7983
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Freddie Hayes appeals, pro se, from the denial
of his "Motion to Correct Unlawful Sentence".
As KRS Chapter 640
was not in effect at the time of Hayes's sentencing, and because
the remainder of his claims could have been raised in his
original RCr 11.42 motion, we affirm.
On April 22, 1968, Freddie Hayes was indicted by the
Fayette County Grand Jury on one count of rape and one count of
armed robbery, for crimes committed on March 5, 1968.
time, KRS 435.090 permitted a life sentence for rape.1
1
At the
Hayes was
KRS 435.090 was repealed in 1975 with the adoption of the
penal code, and replaced by KRS 510.040. See Land v.
(continued...)
sixteen years old at the time he committed the crimes.2
was tried by a jury and convicted of both charges.
Hayes
On April 30,
1970 the Fayette Circuit Court entered judgment sentencing Hayes
to life imprisonment.
Hayes's conviction was affirmed by the
former Court of Appeals on March 26, 1971.
Twenty years later,
in 1991, Hayes filed an RCr 11.42 motion to vacate or set aside
judgment, alleging ineffective assistance of counsel and improper
jurisdiction.
The motion was denied by the Fayette Circuit
Court, and the denial affirmed by this Court in a published
opinion, Hayes v. Commonwealth, Ky. App., 837 S.W.2d 902 (1992).
In 1995, Hayes filed a motion to vacate judgment
pursuant to CR 60.02.
The motion alleged defects in the
indictment, and that the life sentence for rape exceeded the
maximum of twenty years authorized by KRS 510.040.
The motion
was denied by the Fayette Circuit Court on March 25, 1995 and no
appeal was taken therefrom.
On June 17, 1998, Hayes filed a
motion to vacate judgment pursuant to CR 60.03, alleging that the
judgment was not effective because the trial court failed to sign
the judgment.
The motion was denied by the Fayette Circuit
Court, and the denial affirmed by this Court in 1998-CA-002034MR, rendered August 13, 1999.
This Court held that the trial
court's signing of the order book was sufficient to comply with
RCr 11.04(3).
Hayes subsequently filed an RCr 11.42 motion
1
(...continued)
Commonwealth, Ky., 986 S.W.2d 440 (1999).
2
Hayes's reply brief states that he was 15 years old on
March 5, 1968 and 17 years old at the time of sentencing.
However, the record indicates, and Hayes states, that he was born
on November 12, 1951.
-2-
raising the same issue.
The Fayette Circuit Court denied the
motion, and, in 1999-CA-000756-MR, rendered September 3, 1999,
this Court affirmed the order of the Fayette Circuit Court,
finding the issue raised in the appeal to be precisely the same
issue raised in 1998-CA-002034-MR, and also finding the RCr 11.42
motion to be a successive motion and subject to dismissal on that
ground.
On June 21, 2000, Hayes filed a "Motion to Correct
Unlawful Sentence".
Citing Britt v. Commonwealth, Ky., 965
S.W.2d 147 (1998), Hayes contended that he should have been
sentenced as a juvenile, pursuant to the provisions of KRS
Chapter 640, rather than as an adult.
Hayes further argued that,
because KRS 435.090 was repealed, his sentence of life
imprisonment should have been commuted to twenty years pursuant
to KRS 510.040.
Additionally, Hayes argued that a life sentence
for rape as a juvenile constitutes cruel and unusual punishment,
and that his sentence is inequitable and arbitrary.
2000 the Fayette Circuit Court denied the motion.
On July 21,
The court
noted that Hayes was sentenced on April 30, 1970, and found that
while the sentence was harsh for a juvenile, it was lawful at the
time that it was imposed, and that the court did not have the
authority to modify the sentence thirty years after it was
imposed.
Hayes appeals from the court's July 21, 2000 order.
The record indicates that Hayes was sentenced on
April 30, 1968.
Britt is not applicable to Hayes's case, as KRS
Chapter 640 was not effective until July of 1987.
KRS Chapter
640 was not expressly declared by the legislature to apply
-3-
retroactively, and therefore cannot be construed to do so.
Dennison v. Commonwealth, Ky. App., 767 S.W.2d 327 (1988); KRS
446.080(3); KRS 446.110.
The remainder of Hayes's claims could
have reasonably been raised in his original RCr 11.42 motion and
will not be considered on appeal.
Gross v. Commonwealth, Ky.,
648 S.W.2d 853 (1983); Butler v. Commonwealth, Ky., 473 S.W.2d
108 (1971).
The order of the Fayette Circuit Court is affirmed.
EMBERTON, JUDGE, CONCURS.
MILLER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
MILLER, JUDGE, DISSENTING:
I would remand this cause
to the circuit court with directions to appoint the Department of
Public Advocacy to assist appellant.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Freddie Hayes, pro se
LaGrange, Kentucky
A. B. Chandler, III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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