ROTHFUSS (LARRY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 27, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000117-MR
LARRY ROTHFUSS
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 00-CR-00444
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND NICKELL, JUDGES; HARRIS,1 SENIOR JUDGE.
NICKELL, JUDGE: Larry Rothfuss, pro se, has appealed from the Kenton Circuit
Court’s denial of his pro se motion for post-conviction relief pursuant to CR2
60.02(e) and (f). We affirm.
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
2
Kentucky Rules of Civil Procedure.
Rothfuss was indicted by a Kenton County grand jury on two counts
of sodomy in the first degree.3 He was also charged by information on one count
of sexual abuse in the first degree.4 Following plea negotiations, the
Commonwealth agreed to amend the indicted charges to two counts of sodomy in
the second-degree,5 and recommend a sentence of ten years on each sodomy count,
recommend a five-year sentence on the sexual abuse count, and recommend all of
the sentences be run consecutively for a total sentence of twenty-five years’
imprisonment. Rothfuss voluntarily entered a plea of guilty to the amended
charges based on the Commonwealth’s recommendation. A final judgment
sentencing him to twenty-five years’ imprisonment was entered on November 14,
2001.
On November 13, 2009, Rothfuss filed the instant CR 60.02 motion
seeking post-conviction relief. He alleged his twenty-five year sentence violated
the maximum aggregate sentence limitation contained in KRS 532.110(1)(c), and
requested that the trial court modify his sentence from twenty-five to twenty years’
imprisonment. Relying on Meyers v. Commonwealth, 42 S.W.3d 594 (Ky. 2001),
and Johnson v. Commonwealth, 90 S.W.3d 39 (Ky. 2003), the trial court denied
Rothfuss’s motion, finding he had “waived his statutory right to a maximum
aggregate sentence of twenty (20) years.” The trial court found the plea agreement
3
KRS 510.070, a Class A felony as the victim was less than twelve years old.
4
KRS 510.110, a Class C felony as the victim was less than twelve years old.
5
KRS 510.080, a Class C felony.
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specifically set out the amended charges and the reasoning behind such
amendment. The trial court found the plea agreement set forth the parole
eligibility advantages of the amended charges versus the original charges and
consideration of these factors was a reason in reaching the agreement. Finally, the
trial court concluded the plea agreement was negotiated with the assistance of
counsel. This appeal followed.
We review the denial of a CR 60.02 motion for an abuse of discretion.
White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). To warrant relief, the
trial court’s decision must have been “arbitrary, unreasonable, unfair, or
unsupported by sound legal principals.” Clark v. Commonwealth, 223 S.W.3d 90,
95 (Ky. 2007). A trial court may grant relief under CR 60.02 only if a movant
demonstrates “he is entitled to this special, extraordinary relief.” Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). We will affirm the trial court's
decision absent a “flagrant miscarriage of justice.” Id. at 858.
Before this Court, Rothfuss contends the trial court abused its
discretion in denying his CR 60.02 motion because the sentence imposed violates
the maximum aggregate sentence limitation contained in KRS 532.110(1)(c).
Although we agree that the sentence violated the statutory language, we perceive
no abuse of discretion.
KRS 532.110(1)(c) provides that when consecutive indeterminate
sentences are imposed on a criminal defendant, the aggregate of the terms may not
exceed the longest extended term authorized for the highest class of crime for
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which any of the sentences is imposed, with the absolute maximum term being set
at seventy years. It is undisputed that the maximum aggregate term that could be
imposed could not exceed twenty years, as that is the longest extended term that
may statutorily be imposed for a Class C felony. See KRS 532.080(6)(b).
However, as noted by the trial court, in Myers our Supreme Court held
“a defendant may validly waive the maximum aggregate sentence limitation in
KRS 532.110(1)(c).” 42 S.W.3d at 597. Our Supreme Court went on to hold that
such a waiver is presumed valid if there is a “knowing and voluntary waiver by a
person in whose favor the limitation operates.” Id. at 598. This holding was
reaffirmed in Johnson wherein the Supreme Court held “there are no constitutional
prohibitions against presuming that [a defendant’s] waiver was valid.” Johnson,
90 S.W.3d at 45.
Here, the trial court determined Rothfuss’s voluntary entry of a guilty
plea operated as a valid waiver to his statutory right to a maximum aggregate term
of twenty years’ imprisonment. After a careful review of the record, we agree.
The trial court properly followed the guidance set forth in the binding precedents
that existed at the time of Rothfuss’s sentencing. There was no abuse of discretion.
We are aware that Myers and Johnson were recently overruled by our
Supreme Court in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010),
wherein the Court held any sentence imposed in excess of that allowed by KRS
532.110(1)(c) is void and unenforceable, regardless of whether the defendant had
consented to such a sentence. However, the holding in McClanahan cannot be
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applied retroactively to justify the relief Rothfuss seeks. See Leonard v.
Commonwealth, 279 S.W.3d 151, 160-61 (Ky. 2009) (generally, decisions are not
applied retroactively). Further, CR 60.02 relief cannot be granted because of a
change in the law except in “aggravated cases where there are strong equities.”
Reed v. Reed, 484 S.W.2d 844, 847 (Ky. 1972) (citing City-County Planning
Commission v. Fayette County Fiscal Court, 449 S.W.2d 766 (Ky. 1970); 46
Am.Jur.2d, Judgments, Sec. 768, p. 930)). This is not such a case. The instant
judgment was nearly eight years old before the Supreme Court announced its
decision in McClanahan. Rothfuss has pointed us to no facts allowing us to
conclude there are strong equities requiring a departure from the proscription
against retroactive application of new decisions. To the contrary, Rothfuss has
enjoyed a reduction in his charges from Class A felonies carrying the potential for
a seventy-year term of imprisonment to Class C felonies carrying an actual
sentence of only twenty-five years. In addition, Rothfuss is parole-eligible after
serving twenty percent of his sentence rather than the eighty-five percent he would
have been required to serve had he been convicted of the higher offenses. Finally,
we note that although his conviction is nearly a decade old and he has had ample
opportunity to do so, Rothfuss has not previously attacked his conviction and
sentence on any ground. Thus, we conclude equity does not demand retroactive
application of McClanahan.
For the foregoing reasons, the judgment of the Kenton Circuit Court is
affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Rothfuss, pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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