PARSONS (DAVID) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: AUGUST 21, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001439-MR DAVID PARSONS v. APPELLANT APPEAL FROM KENTON CIRCUIT COURT HONORABLE STEVEN R. JAEGER, JUDGE ACTION NO. 04-CR-00284 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: KELLER, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: David Parsons appeals pro se from an order of the Kenton Circuit Court denying, as untimely, his pro se motion seeking the discharge of a fine. For the reasons stated hereafter, we affirm. Parsons, who was deemed indigent, was represented by an assistant public advocate in November 2005 when he pled guilty but mentally ill to first- degree manslaughter and tampering with physical evidence. In December 2005 the trial court, in accordance with the Commonwealth’s recommendation, sentenced Parsons to a total of fifteen years’ imprisonment. In addition to imposing the recommended penalty, the court ordered Parsons to pay a $1,000 fine plus court costs and restitution. Parsons does not allege, and nothing in the record indicates, that he objected to the court’s imposition of the fine, that he sought to withdraw his guilty plea, that his plea was involuntarily entered, or that he sought to enter and appeal from a conditional guilty plea. Two and one-half years later, in May 2008, Parsons filed a pro se motion for judgment nunc pro tunc, seeking the fine’s discharge on the ground that it was unlawfully imposed in violation of KRS1 534.030(4). His argument consisted of the single statement that “pursuant to KRS 534.030(4) the Court was precluded from assessing any fine against [him] for he was indigent within the meaning of KRS Chapter 31 being appointed a Public Defender.” The court denied the motion as untimely after defining it as either a C.R.[2] 59.02 motion to alter, amend, or vacate, or a C.R. 60.02 motion for relief from judgment. A C.R. 59.02 motion must be filed within ten days from judgment, and a C.R. 60.02 motion must be filed within one year or within a “reasonable time.” Defendant’s conviction was December 1, 2005. The motion herein is filed much too late for the Court’s consideration. 1 Kentucky Revised Statutes. 2 Kentucky Rules of Civil Procedure. -2- This appeal followed. KRS 534.030(1) requires trial courts to impose fines on defendants who are convicted of felonies. However, such a fine shall not be imposed on “any person determined by the court to be indigent pursuant to KRS Chapter 31.” KRS 534.030(4). A defendant’s representation at trial by an assistant public advocate provides proof of such indigency. Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky. 1994). Parsons asserts that as in Simpson, his representation at trial by an assistant public advocate required a conclusion that he was indigent and not subject to the imposition of a fine pursuant to KRS 534.030, and that the unauthorized fine therefore should be set aside. As stated in Myers v. Commonwealth, 42 S.W.3d 594, 596 (Ky. 2001), “the imposition of an unauthorized sentence is correctable by appeal, by writ, or by motion pursuant to RCr[3] 11.42 or CR 60.02.” Moreover, a trial court may correct an unlawful sentence at any time to conform to the law. See Neace v. Commonwealth, 978 S.W.2d 319, 322 (Ky. 1998); Skiles v. Commonwealth, 757 S.W.2d 212, 215 (Ky. App. 1988). Nevertheless, a defendant may voluntarily waive sentencing limitations and accept an otherwise unauthorized sentence as a valid trade resulting in a lesser sentence. See Myers, 42 S.W.3d at 597. First, although Parsons asserts the trial court incorrectly treated his motion as one filed pursuant to CR 60.02, nothing in the record suggests this 3 Kentucky Rules of Criminal Procedure. -3- motion was filed as an appeal, as a motion seeking RCr 11.42 relief, or as a motion seeking a writ to compel or prohibit certain actions. Myers, 42 S.W.3d at 596. Thus, the trial court justifiably treated the motion as one seeking relief pursuant to CR 60.02(e), which permits a trial court to relieve a party from a void final judgment if the request for relief is made within “a reasonable time.” Given the fact that Parsons provided no explanation for the two and one-half year delay in the filing of his motion, the trial court did not abuse its discretion by finding that CR 60.02 relief was not sought within a “reasonable time.” See Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). Further, Parsons has not demonstrated that he is entitled to relief on the ground that his sentence was unlawful or unauthorized. In contrast to the defendant in Simpson, Parsons voluntarily participated in a plea agreement involving the amendment of a capital murder charge to a Class B felony firstdegree manslaughter charge, which carried a maximum sentence of twenty years. Although the record contains no tape recordings of the proceedings below, Parsons certainly benefitted from the plea agreement, even though it contained a term which was neither part of the Commonwealth’s recommended sentence nor authorized by law. In these circumstances, Parsons’ completion of the guilty plea proceedings, without any timely objection on the record or subsequent timely motion seeking relief, amounted to an acceptance of the terms and a waiver of the protections provided by KRS 534.030(4). See Myers, 42 S.W.3d at 597. Parsons therefore is not entitled to relief on the ground that the sentence was unauthorized. -4- The Kenton Circuit Court’s order is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: David Parsons, Pro se LaGrange, Kentucky Jack Conway Attorney General of Kentucky Michael L. Harned Assistant Attorney General Frankfort, Kentucky -5-

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