PAUL BROUGHTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 22, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
97-CA-002109-MR
PAUL BROUGHTON
v.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 88-CR-00033
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
GUIDUGLI, KNOX, and MILLER, JUDGES.
GUIDUGLI, JUDGE.
Paul Broughton (Broughton), acting pro se,
appeals from an order of the Shelby Circuit Court entered on July
17, 1997, denying his motion brought pursuant to Kentucky Rule of
Civil Procedure (CR) 60.02, in which he sought dismissal of a
criminal indictment.
Finding no error, we affirm.
In July 1988, Broughton was arrested on a charge of
first-degree rape following issuance of a warrant of arrest by
the Shelby District Court.
On July 13, 1988, the case was waived
to the grand jury by the district court.
On September 8, 1988,
the Shelby County Grand Jury indicted Broughton on the felony
offense of first-degree rape (Kentucky Revised Statute (KRS)
510.040), involving his young daughter.
In April 1989, Broughton
was convicted by a jury of first-degree rape, and the circuit
court sentenced him to life imprisonment.
Broughton brought a
direct appeal, but the Kentucky Supreme Court affirmed the
conviction in an unpublished opinion rendered in December 1989.
(Broughton v. Commonwealth, 89-SC-320 (rendered December 21,
1989)).
In May 1991, Broughton filed an RCr 11.42 motion
containing an extensive list of alleged errors by his attorney
amounting to ineffective assistance of counsel, which included an
allegation that counsel failed to challenge the sufficiency of
the indictment.
In November 1991, the circuit court denied the
RCr 11.42 motion, and Broughton appealed the order of denial.
This Court affirmed the trial court's order by written opinion in
December 1992, and the Kentucky Supreme Court denied
discretionary review of that opinion.
In August 1993, Broughton
filed a motion for resentencing pursuant to RCr 13.04 and CR
60.02(f).
The circuit court denied the motion for resentencing
in September 1993, and Broughton apparently did not appeal.
In
November 1993, Broughton filed another motion entitled Motion to
Correct Invalid Sentence based on KRS 532.055(2) and brought
pursuant to RCr 10.26.
In that motion, he again requested
reversal of his conviction or resentencing.
In February 1994,
the circuit court denied the motion, and Broughton appealed.
an opinion rendered in February 1995, this Court affirmed the
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In
circuit court's denial of the motion and the Kentucky Supreme
Court denied discretionary review.
On April 4, 1997, Broughton filed a motion to dismiss
the indictment pursuant to CR 60.02(f).
He sought dismissal of
the indictment and an order vacating the conviction based on
allegations that he never received a preliminary hearing prior to
being indicted, and that the indictment was issued beyond the
sixty (60) day time period referred to in RCr 5.22.
On July 17,
1997, the circuit court summarily denied the CR 60.02(f) motion.
This appeal followed.
The court in Gross v. Commonwealth, Ky., 648 S.W.2d 853
(1983), discussed the use of CR 60.02 in criminal cases.
It
clearly stated that a defendant must first utilize established
criminal procedure available through direct appeal or RCr 11.42,
if possible, prior to seeking relief under CR 60.02.
The court
stated as follows:
The structure provided in Kentucky for
attacking the final judgment of a trial court
in a criminal case is not haphazard and
overlapping, but is organized and complete.
That structure is set out in the rules
related to direct appeals, in RCr 11.42 and
thereafter in CR 60.02. CR 60.02 is not
intended merely as an additional opportunity
to raise Boykin defenses. It is for relief
that is not available by direct appeal and
not available under RCr 11.42. The movant
must demonstrate why he is entitled to this
special, extraordinary relief . . . .
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*
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In Harris v. Commonwealth, Ky., 296
S.W.2d 700 (1956), this Court held that 60.02
does not extend the scope of the remedy of
coram nobis nor add additional grounds of
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relief. We held that coram nobis "is an
extraordinary and residual remedy to correct
or vacate judgment upon facts or grounds not
appearing on the face of the record and not
available by appeal or otherwise, which were
not discovered until after rendition of
judgment without fault of the party seeking
relief."
*
*
*
*
We hold that the proper procedure for a
defendant aggrieved by a judgment in a
criminal case is to directly appeal that
judgment, stating every ground of error which
it is reasonable to expect that he or his
counsel is aware of when the appeal is taken.
Next, we hold that a defendant is
required to avail himself of RCr 11.42 while
in custody under sentence or on probation,
parole or conditional discharge, as to any
ground of which he is aware, or should be
aware, during the period when this remedy is
available to him. Final disposition of that
motion, or waiver of the opportunity to make
it, shall conclude all issues that reasonably
could have been presented in that proceeding.
The language of RCr 11.42 forecloses the
defendant from raising any questions under CR
60.02 which are "issues that could reasonably
have been presented" by RCr 11.42
proceedings.
648 S.W.2d at 856-57 (emphasis in original).
See also
Commonwealth v. Gross, Ky., 936 S.W.2d 85, 88 (1997).
In the case at bar, Broughton has waived the right to
challenge the judgment based on the lack of a preliminary
hearing.
The record reveals that Broughton has brought several
post-judgment motions under both RCr 11.42 and CR 60.02.
He
raised the issue of the sufficiency of the indictment in both his
direct appeal and the RCr 11.42 motion.
The question of whether
he was denied due process because of an alleged lack of a
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preliminary hearing is clearly an issue that could and should
have been raised in the prior proceedings.
Broughton was well
aware of the facts on which this claim is based even prior to
trial.
While Broughton presented numerous alleged errors by his
attorney in the prior RCr 11.42 motion, he did not claim that his
attorney failed to assert a challenge to the prosecution because
of the lack of a preliminary hearing in district court.
Broughton reasonably could have raised the issue of the lack of a
preliminary hearing in the prior RCr 11.42 proceeding, and
therefore he is precluded from raising that issue by way of CR
60.02 at this time.
See, e.g., Messer v. Commonwealth, Ky., 454
S.W.2d 694 (1970)(appellant raised due process claim in RCr 11.42
based on failure to provide preliminary hearing).
In addition to the procedural bar, Broughton's claim is
without merit on substantive grounds.
and RCr 5.22(2) is misplaced.
His reliance on RCr 3.101
RCr 3.10(2) states in part:
If a defendant does not waive the preliminary
hearing, the hearing shall be held within 10
days following the initial appearance if the
defendant is in custody. . . . In the event
the preliminary hearing is not held within
the above time period, the defendant shall be
discharged from custody, and he shall
thereafter be proceeded against on that
charge by indictment only.
Broughton was arrested on July 6, 1988, and the record
indicates the district court appointed an attorney to represent
him prior to the case being waived to the grand jury on July 13,
1
Broughton's appellate brief and his motion in the circuit
court incorrectly cites to a non-existent criminal rule RCr 9.03
as the rule dealing with criminal preliminary hearings.
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1988.
Although the record is ambiguous, even if a preliminary
hearing was not held and Broughton did not waive it, failure to
hold a preliminary hearing does not necessarily invalidate a
subsequent criminal conviction.
The courts have repeatedly held
that there is no constitutional right to a preliminary hearing.
See, e.g., Little v. Commonwealth, Ky., 438 S.W.2d 527, 530
(1969); Messer v. Commonwealth, Ky., 454 S.W.2d 694, 695 (1970);
Caine v. Commonwealth, Ky., 491 S.W.2d 824, 829, cert. denied,
414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121 (1973); United
States v. Neff, 525 F.2d 361, 364 (8th Cir. 1975); Ramirez v.
State of Arizona, 437 F.2d 119, 119 (9th Cir. 1971); Lunsford v.
Howard, 316 F. Supp. 1125 (E.D. Ky. 1970).
In Commonwealth v. Watkins, Ky., 398 S.W.2d 698, cert.
denied, 384 U.S. 965, 86 S. Ct. 1596, 16 L. Ed. 2d 677 (1966),
the court held that the failure to conduct a preliminary hearing
does not render a conviction invalid because it is not a critical
stage in a prosecution.
"The crux of the matter is that the
preliminary hearing is simply a procedural device to secure the
temporary freedom of the accused (if warranted) following arrest
and pending indictment.
It is not an integral or essential part
of the prosecutory process and is thus to be distinguished from
such phases of the proceedings as arraignment, trial and
judgment."
Id. at 701.
The only purpose of a preliminary
hearing is to determine whether there is sufficient evidence to
justify holding an accused in jail or under bond pending
consideration of the charges by a grand jury.
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Commonwealth v.
Arnette, Ky., 701 S.W.2d 407, 408 (1985); King v. Venters, Ky.,
595 S.W.2d 714, 715 (1980); Commonwealth v. Wortman, Ky. App.,
929 S.W.2d 199, 200 (1996).
In addition, once an indictment has
been returned by a grand jury, the whole purpose for a
preliminary hearing is satisfied and the need for such a hearing
is eliminated.
United States v. Mulligan, 520 F.2d 1327, 1329
(6th Cir. 1975), cert. denied, 424 U.S. 919, 96 S. Ct. 1123, 47
L. Ed. 2d 325 (1976); United States v. Neff, 525 F.2d at 364.
Consequently, even if Broughton did not receive a preliminary
hearing, he is not entitled to have his conviction vacated.
Broughton relies on RCr 5.22(2) in arguing that he
should be released because he was not indicted within sixty (60)
days after being arrested.
In Peercy v. Paxton, Ky., 637 S.W.2d
639 (1982), the court denied the defendant a petition for writ of
mandamus seeking to have the court discharge him from custody
because he was indicted approximately eighty-five (85) days after
his arrest and approximately seventy-nine (79) days after his
case was waived to the grand jury.
The court stated, "The second
sentence of RCr 5.22(2) applies only while a defendant remains
unindicted.
It applied to Peercy after he had been held for 60
days, but ceased to apply when he was indicted."
Broughton had
no right to release under RCr 5.22(2) once he was indicted in
September 1988.
Therefore, Broughton is not entitled to post-
judgment relief under RCr 5.22(2).
For the foregoing reasons, we affirm the order of the
Shelby Circuit Court.
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ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul Broughton, Pro Se
LaGrange, Kentucky
A. B. Chandler, III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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