MICHAEL GASKINS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 19, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000284-MR
MICHAEL GASKINS
v.
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 01-CR-00116
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
Michael Gaskins (Gaskins), pro-se, brings
this appeal from an Order of the Taylor Circuit Court, entered
November 3, 2004, denying his motion to release evidence seized,
with his permission, from his home as a result of a criminal
investigation and prosecution.
1
We affirm.
Senior Judge John D. Miller 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.
On October 2, 2001, a Taylor County Grand Jury
returned Indictment No. 01-CR-00116 against Gaskins, charging
him with one count of first-degree burglary,2 one count of
kidnapping,3 twelve counts of first-degree rape,4 twelve counts
of first-degree sodomy,5 and one count of intimidating a
witness.6
The charges arose from Gaskins' entry into the home of
a fourteen year-old girl shortly after midnight on September 21,
2001, taking her to his trailer across the road, and repeatedly
raping and sodomizing her for twelve hours at which time she was
allowed to return home.
She immediately reported the crimes to
the sheriff, who was present at her home investigating her
reported disappearance.
Gaskins was immediately arrested,
waived his rights under Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), and gave permission to have
his trailer searched, from which the sheriff collected guns,
knives, whiskey bottles, bedclothes (bedspread, sheets and
pillows), clothes (jeans, t-shirts, shorts, laundry from the
floor of the bathroom and four bags containing clothing),
several towels, a book, a diary, and a hairbrush and a cup.
2
Kentucky Revised Statutes 511.020, a class B felony.
3
Kentucky Revised Statutes 509.040, a class B felony.
4
Kentucky Revised Statutes 510.040, a class B felony.
5
Kentucky Revised Statutes 510.070, a class B felony.
6
Kentucky Revised Statutes 524.040, a class D felony.
-2-
Some of the items, specifically some clothing and the hairbrush
and cup, were collected because they were identified by the
victim.
Discovery filed in the record indicated that the
property, containing hair, semen, and deoxyribonucleic acid
(DNA) samples, was submitted to the Kentucky State Police for
forensic analysis.
According to the forensic reports filed as
discovery, the seized sheets contained the victim's DNA and hair
consistent with her hair.
Trial began on October 29, 2002.
On October 30, 2002,
Gaskins, with the assistance of counsel, entered a guilty plea
in accordance with the Commonwealth's offer.
On November 20,
2002, judgment was entered, sentencing Gaskins, pursuant to his
plea of guilty, to a total of twenty-one years incarceration on
one count of second-degree burglary,7 one count of attempted
kidnapping,8 five counts of third-degree sodomy,9 five counts of
third-degree rape,10 and one count of intimidating a witness.
A little over two months later, on January 28, 2003,
Gaskins, through counsel, asked the court to allow the property
that was seized from his trailer as evidence and identified in
7
Kentucky Revised Statutes 511.030, a class C felony.
8
Kentucky Revised Statutes (KRS) 506.010, a class C felony reduced from KRS
509.040, a class B felony.
9
10
Kentucky Revised Statutes 510.090, a class D felony.
Kentucky Revised Statutes 510.060, a class D felony.
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an attached "Exhibit 1" to be returned to his mother, on the
basis that the items were no longer needed as evidence.
"Exhibit 1" was a redacted composite property log inventory of
items seized on September 21, 2001, from Gaskins' trailer.
following month a hearing was held.11
The
The motion was ultimately
denied by order entered June 28, 2004.12
In the order, the court
noted that Gaskins could renew the motion upon resolution of
"the appeal."13
On July 30, 2004, Gaskins filed a pro-se motion to
release to him all materials confiscated as evidence, contending
that as he was not going to appeal his sentence there was no
need to further hold the materials.
On August 25, 2004, the
trial court summarily denied his motion, concluding that despite
Gaskins' claim, "there is no guarantee that [Gaskins] will not
[appeal] or seek some other avenue of relief."
No appeal was
taken from this order.
11
This hearing was not included in the record on appeal.
12
By stipulation, the confiscated firearms were photographed and then
released to Gaskins' mother prior to the trial date.
13
Because of the overlap of several motions, the trial court was presumably
referring to an appeal of the denial of a pro–se motion made pursuant to
Kentucky Rules of Civil Procedure [CR] 60.02(a) and (d), which was filed nine
months later and a year to the date from entry of judgment. Although this
motion attacked his plea on several state and federal constitutional grounds,
it did not address the return of the property at issue herein. On January
20, 2004, the trial court entered an order summarily denying the CR 60.02
motion, concluding that Gaskins was not justified relief as he failed to
allege any mistake, inadvertence, surprise, or excusable neglect or fraud
affecting the proceedings. Gaskins, pro-se, appealed this order. His
subsequent request to have the appeal dismissed was granted by this Court on
October 7, 2004. Michael Earl Gaskins v. Commonwealth, 2004-CA-000323-MR.
-4-
On October 15, 2004, several days following this
Court's dismissal, on Gaskins' motion, of the appeal of his
motion made pursuant to Kentucky Rules of Civil Procedure (CR)
60.02, Gaskins filed another pro-se motion to release to him all
materials confiscated as evidence, arguing this time that this
Court's dismissal of his CR 60.02 appeal was "in essence
granting permission for the release of his confiscated property,
that this was the only reason that so property was held."
The
trial court summarily denied Gaskins' motion by order entered
November 3, 2004, concluding that "(t)his Court is not satisfied
that all of [Gaskins'] post-conviction remedies have been
exhausted."14
This appeal follows.
Before us, Gaskins argues that the trial court's order
denying release of his property was based on the erroneous
conclusion that he had failed to exhaust all post-conviction
remedies.
In so arguing, Gaskins contends that he is time-
barred from further post-conviction remedies; and that the
property is not evidence, had nothing to do with his conviction,
was not used in trial, and would not be used in any further
proceedings.
As such, he asserts that the trial court has no
authority to retain the property.
14
We disagree.
By order entered January 13, 2005, this Court affirmed the trial court's
denial of Gaskins' pro-se motion to proceed in forma pauperis on this appeal.
Michael Gaskins v. Commonwealth, 2004-CA-002575-MR.
-5-
We review questions of fact under the clearly
erroneous standard of CR 52.01 and questions of law de novo.
See generally Brown v. Commonwealth, 40 S.W.3d 873, 875 (Ky.App.
1999).
As we conclude that the findings of the circuit court
are supported by substantial evidence and are not an abuse of
discretion, we affirm the circuit court.
Despite Gaskins' assertion that he has no more timely
post-conviction options, the trial court's order denying relief
to Gaskins concluded correctly that Gaskins still has postconviction remedies available to him.
Pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42(10), Gaskins has three
years from the date that his judgment became final, or until
November 20, 2005, to file a motion to vacate, set aside, or
correct his sentence.
He may also have other remedies
unrevealed by the record before this Court.
It is our responsibility as the reviewing court to
determine if the trial court's findings are clearly erroneous,
or stated another way, if there is substantial evidence to
support the trial court's ruling.
S.W.3d 909, 917 (Ky. 2004).
Miller v. Eldridge, 146
We conclude that the trial court's
order is supported by substantial evidence.
Gaskins cites no
controlling authority requiring this Court to reverse the trial
court's order.
-6-
Although not exactly on point, it appears from
Kentucky Revised Statutes (KRS) 524.140(3)(b) that the intent of
the legislature is to protect property subject to DNA testing in
a criminal case from disposal until a state constitutionally
guaranteed first appeal is final or the time for an appeal has
lapsed.
Although Gaskins waived his right to appeal by pleading
guilty,15 at least one post-conviction remedy is still available.
Keeping the property safe from disposal is within the intent of
KRS 524.140.
We see no abuse of the trial court's discretion in
refusing to return it to Gaskins.
In keeping with our decision we note that Gaskins'
categorization of the property sought to be returned as "not
evidence and (having) nothing to do with (his) conviction" is
misleading.
Discovery filed in the record indicates that the
property was tested for the presence of DNA and hair of both the
victim and Gaskins, and resulted in a finding supporting the
victim's allegations.
As such, it appears to be evidence going
to the heart of the conviction.
For the foregoing reasons, the order of the Taylor
Circuit Court is affirmed.
ALL CONCUR.
15
Centers v. Commonwealth, 799 S.W.2d 51 (Ky.App. 1990).
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Gaskins, pro-se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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