FULTZ (SHANNON BURL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 18, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001135-MR
SHANNON BURL FULTZ
v.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 03-CR-00232
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND STUMBO, JUDGES; LAMBERT,1 SENIOR JUDGE.
ACREE, JUDGE: Shannon Burl Fultz appeals the Letcher Circuit Court’s denial
of his motion made pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42.
Finding Fultz is not entitled to relief, we affirm.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
Following a 2003 automobile accident, Fultz entered a guilty plea to one
count each of assault in the second degree, criminal mischief in the first degree,
driving under the influence (first offense), driving without insurance (first offense),
leaving the scene of an accident, and operating an automobile on a suspended
license. Pursuant to the plea agreement, Fultz was ordered to pay fines and
restitution and given two sentences of five years’ imprisonment to run
concurrently, probated for five years.2 The 2005 sentence also provided, however,
that if Fultz’s probation was revoked, he would be required to serve the two fiveyear sentences consecutively for a total of ten years.
Fultz’s probation was revoked in an order entered May 25, 2006. However,
he was ordered at that time to serve only five years, and not the ten years required
by the original sentencing order.
After a brief incarceration, Fultz was granted shock probation and began
participation in Letcher County’s drug court program. The circuit court again
revoked Fultz’s probation in early 2008. In the court’s Order of Probation
Revocation, Fultz was ordered to serve ten years’ imprisonment pursuant to his
2005 plea agreement.
Counsel for Fultz moved to correct the sentence to five years. The circuit
judge overruled the motion, stating the 2006 order’s sentence of five years was the
2
Fultz was also sentenced to thirty days’ imprisonment for the DUI charge and ninety days each
for the charges of no liability insurance, leaving the scene of an accident, and operating an
automobile on a suspended license. They were all to run concurrently with the five-year
sentences.
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result of a clerical error which was not intended to amend the original judgment.
Fultz did not appeal this ruling directly.
In September 2008, Fultz filed a motion pursuant to RCr 11.42 contending
the ten-year sentence was void and asserting he received ineffective assistance of
counsel in entering his guilty plea. The circuit court denied the motion, and this
appeal followed. We review a circuit court’s denial of an RCr 11.42 motion for
abuse of discretion. Bowling v. Commonwealth, 981 S.W.2d 545 (Ky. 1998).
Sentence
An RCr 11.42 motion is one proper means of challenging an unauthorized
sentence. Myers v. Commonwealth, 42 S.W.3d 594, 596 (Ky. 2001), overruled on
other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2007).
“However, a defendant may by direct appeal challenge the legality of a sentence
imposed pursuant to a guilty plea because sentencing issues are considered
‘jurisdictional’ and cannot be waived.” Elmore v. Commonwealth, 236 S.W.3d
623, 626 (Ky. App. 2007) (citations omitted). Further, an RCr 11.42 motion “is
limited to [the] issues which were not and could not have been raised on direct
appeal.” Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998); overruled
on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2007). The
Commonwealth urges this Court to disregard Fultz’s argument about sentencing
because he could have and should have raised this issue on direct appeal. We
agree. RCr 11.42 cannot afford the relief Fultz seeks because he could have
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appealed the circuit court’s denial of his motion to correct the sentence of ten
years.
Even if the matter were properly before us on this collateral attack, Fultz’s
sentence would not be void. His only argument on this issue is that the circuit
court could not impose a lengthier sentence than that instated upon the 2006
probation revocation, despite the fact his plea agreement and the original judgment
of conviction and sentence required it.
Fultz cites Galusha v. Commonwealth for the proposition that a circuit court
may not impose a lengthier sentence upon revocation of shock probation. 834
S.W.2d 696 (Ky. App. 1992). His reliance is misplaced. The defendant in
Galusha had been sentenced to eight years’ imprisonment, was incarcerated, and
then was shock-probated. Id. at 697. His shock probation was conditioned upon
his agreement that he would serve twenty years if probation was revoked. Id. This
agreement came subsequent to the defendant’s sentencing order and constituted
modification of a final sentence. Id. at 697-98. It was therefore improper because
“a trial court loses control of its judgment 10 days after its entry[,]” and the shock
probation agreement came well after the ten days had expired. Id. The only
holding of Galusha was that a circuit court cannot, “as a condition of shock
probation, enhance the sentence first imposed.” Id. at 698.
Unlike Galusha, there was no attempt to alter a final sentencing order in the
instant case; instead, in imposing the ten-year sentence, the circuit court was
merely enforcing the original sentencing order. There was therefore no
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impermissible modification of a final order as there was in Galusha. The fact that
the circuit court mistakenly ordered Fultz to serve only five years in 2006, the first
time his probation was revoked, did not prevent the court from entering the proper
sentence in the 2008 order.
Fultz has not asserted his acceptance of the plea bargain was not knowing or
voluntary because he did not understand the provision which extended his
sentence, or that counsel’s performance in advising him on this matter was
defective; neither has he identified a statute or constitutional principle which
renders the sentence excessive.3 He has not asserted grounds which justify RCr
11.42 relief, and the circuit court did not abuse its discretion in sentencing him to
ten years.
Ineffective assistance of counsel
Fultz next contends he received ineffective assistance of counsel because his
attorney advised him to accept a plea to both criminal mischief and second-degree
assault, in violation of the Double Jeopardy clause of the Fifth Amendment of the
U.S. Constitution and Section 2 of the Kentucky Constitution. A plea agreement
may be voided on an ineffective assistance of counsel claim when a defendant
demonstrates: (1) his counsel’s performance was deficient as measured by
objective professional standards and (2) but for counsel’s ineffective assistance, the
defendant would not have accepted the Commonwealth’s offer, but would have
3
This case differs from the factual scenario of the Supreme Court’s recent decision,
McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), in that Fultz’s ten-year sentence
does not exceed the applicable statutory maximum penalty.
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insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985). In Fultz’s case, his attorney’s performance was not deficient
because criminal mischief is not a lesser included offense of second-degree assault.
“The Double Jeopardy Clause of the Fifth Amendment provides:
‘[N]or shall any person be subject for the same offence to be twice put in jeopardy
of life or limb.’” Yeager v. U.S., 557 U.S. ___, 129 S.Ct. 2360, 2365, 174 L.Ed.2d
78 (2009). However, a defendant may be convicted of two offenses arising from
the same act “if each [offense] requires proof of an additional fact which the other
does not[.]” Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.
306 (1932). A charge of criminal mischief contemplates damage to property. KRS
512.020. Conviction for assault in the second degree, on the other hand, requires
“serious physical injury” to a person. KRS 508.020. Each offense therefore
requires an element not included in the other. Conviction of both offenses did not
violate the constitutional prohibition against double jeopardy, and Fultz’s trial
counsel was not deficient in advising him to plead guilty to both.
Conclusions
Because imposition of the ten-year sentence was made pursuant to a valid
plea agreement, and because Fultz did not receive ineffective assistance of counsel
in entering the agreement, he was not entitled to RCr 11.42 relief. The order of the
Letcher Circuit Court denying such relief is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shannon Burl Fultz, Pro se
St. Mary, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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