STEPHEN L. GRIDER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 2, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001054-MR
STEPHEN L. GRIDER
v.
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NOS. 98-CR-00029; 98-CR-00030; 98-CR-00049;
AND 98-CR-00056
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TAYLOR AND VANMETER, JUDGES; POTTER, SENIOR JUDGE. 1
TAYLOR, JUDGE:
Stephen L. Grider brings this pro se appeal from
the April 5, 2004, order of the Monroe Circuit Court denying his
Ky. R. Civ. P. (CR) 60.02 motion to vacate his twenty-year
sentence of imprisonment upon his plea of guilty.
We affirm.
Appellant was indicted by the Monroe County Grand Jury
upon one count of first-degree burglary, first-degree robbery,
first-degree wanton endangerment, kidnapping, receiving stolen
1
Senior Judge John W. Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
property over three-hundred dollars and second–degree escape.
Appellant entered a guilty plea.
On February 12, 2001, the
Monroe Circuit Court entered a Judgment and Sentence on Plea of
Guilty.
Appellant was sentenced to twenty years’ imprisonment.
On March 19, 2004, appellant filed a motion pursuant
to CR 60.02 entitled “Petition for Sentence Judgment Nunc pro
Tunc.”
Appellant argued in the motion that:
One, for all relevant purposes the charge of
burglary became the robbery under KRS
505.020(1)(c); and second, the Commonwealth
may carve out of a single episode the most
serious offense, but they are not allowed to
punish a single episode as a multiple
offense, without violating § 13 of the
Kentucky Constitution.
The circuit court denied appellant’s motion by order entered
April 5, 2004.
Appellant subsequently filed a motion pursuant to CR
59.05 to alter, amend or vacate the April 5th order.
Therein,
appellant claimed that the court had misconstrued his argument
when it denied the CR 60.02 motion.
Appellant asserted that his
argument was not that it was improper to convict him of both
burglary and robbery, but that Kentucky Revised Statutes (KRS)
505.020 and the Double Jeopardy Clause of the Kentucky
Constitution prohibit receiving separate terms of imprisonment
for both offenses.
The circuit court denied the motion.
appeal follows.
-2-
This
Appellant contends the circuit court erred by denying
his motion to alter, amend or vacate.
Appellant specifically
argues that receiving a separate term of imprisonment for the
robbery conviction and the burglary conviction violates the
Double Jeopardy Clause contained in § 13 of the Kentucky
Constitution. 2
First-degree robbery is defined in KRS 515.020 as
follows:
(1)
A person is guilty of robbery in the
first degree when, in the course of
committing theft, he uses or threatens
the immediate use of physical force
upon another person with intent to
accomplish the theft and when he:
(a) Causes physical injury to any
person who is not a participant in
the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate
use of a dangerous instrument upon
any person who is not a
participant in the crime.
(Emphasis added.)
(2)
Robbery in the first degree is a Class
B felony.
First-degree burglary is defined in KRS 511.020 as
follows:
(1)
A person is guilty of burglary in the
first degree when, with the intent to
commit a crime, he knowingly enters or
remains unlawfully in a building, and
when in effecting entry or while in the
2
Appellant is proceeding pro se on appeal, and it is difficult to understand
his precise legal arguments. We have carefully reviewed his allegations of
error and have attempted to address them appropriately.
-3-
(2)
building or in the immediate flight
therefrom, he or another participant in
the crime:
(a) Is armed with explosives or a
deadly weapon; or
(b) Causes physical injury to any
person who is not a participant in
the crime; or
(c) Uses or threatens the use of a
dangerous instrument against any
person who is not a participant in
the crime. (Emphasis added.)
Burglary in the first degree is a Class
B felony.
A review of the two statutes clearly reveals that first-degree
burglary requires an element that is not required for firstdegree robbery.
Robbery requires that a theft is being
committed; whereas, burglary requires that the person “knowingly
enters or remains unlawfully in a building.”
As first-degree
robbery and first-degree burglary each require proof of a fact
that the other does not, the constitutional bar against double
jeopardy was violated when appellant was sentenced to a separate
term of imprisonment for each offense.
See Tribbett v.
Commonwelath, 561 S.W.2d 662 (Ky. 1978).
Appellant next contends the circuit court abused its
discretion by denying his CR 60.02 motion without an evidentiary
hearing.
It is clear that before a movant is entitled to an
evidentiary hearing under CR 60.02, “he must affirmatively
allege facts which, if true, justify vacating the judgment and
further allege special circumstances that justify CR 60.02
-4-
relief.”
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
Appellant did not allege any facts or special circumstances that
would justify the extraordinary relief afforded by CR 60.02.
The circuit court addressed appellant’s substantive argument and
properly dismissed the motion without a hearing.
Appellant’s final allegation is that the circuit court
abused its discretion by not appointing counsel to pursue his CR
60.02 motion.
A review of the record reveals that appellant’s
CR 60.02 motion was accompanied by a motion to proceed in forma
pauperis but not by a motion seeking appointment of counsel.
no motion for appointment of counsel was filed, we cannot say
that the circuit court erred by failing to appoint counsel.
For the foregoing reasons, the order of the Monroe
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen L. Grider, Pro Se
Fredonia, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Robert E. Prather
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
-5-
As
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