THOMAS LEE SHIFFLETT v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 30, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002145-MR
THOMAS LEE SHIFFLETT
v.
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE STEPHEN M. SHEWMAKER, JUDGE
ACTION NO. 80-CR-000097
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, KNOX, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Thomas Lee Shifflett (Shifflett) appeals pro se
from an order of the Boyle Circuit Court entered on August 13,
1997, denying his motion for relief brought pursuant to Kentucky
Rule of Civil Procedure (CR) 60.02(e) and (f).
After reviewing
the record and the applicable law, we affirm.
On August 3, 1980, Shifflett and an accomplice went to
the residence of Joe Horky to burglarize it.
After arriving at
the residence, the two defendants broke in and stole several
items including a rifle and carrying case, silverware,
binoculars, and a knapsack.
They took the items to a wooded area
near the house and waited several hours.
Eventually, Joe Horky
returned home and discovered the burglary.
When he went outside
in search of the perpetrators, he discovered Shifflett and began
to exchange gunfire with him.
shot and killed Horky.
During the gun battle, Shifflett
Shifflett then took Horky's wallet, some
money, and a handgun from the lifeless body.
In October 1980, the Boyle County Grand Jury indicted
Shifflett for murder in the first degree, robbery in the first
degree, burglary in the first degree, and theft by unlawful
taking over $100.
Over the next several weeks, Shifflett's
attorney engaged the prosecutor in plea negotiations.
On October 23, 1981, Shifflett changed his not guilty
plea and entered a plea of guilty pursuant to a plea agreement
with the Commonwealth to an amended charge of manslaughter in the
first degree, robbery in the first degree, burglary in the first
degree, and theft over $100.
Under the plea agreement, the
Commonwealth recommended sentences of twenty (20) years for
manslaughter, ten (10) years for robbery, ten (10) years for
burglary, and five (5) years for theft, with the sentences for
manslaughter, robbery, and burglary to run concurrently with each
other but consecutively to the sentence for theft, for a total
sentence of twenty-five (25) years.
In December 1981, the trial
court entered a judgment on the guilty plea and sentenced
Shifflett to twenty-five (25) years in prison consistent with the
Commonwealth's recommendation and the plea agreement.
In January 1985, Shifflett filed a motion to alter,
amend or vacate judgment pursuant to Kentucky Rule of Criminal
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Procedure (RCr) 11.42.
In this motion, Shifflett raised several
issues challenging his guilty plea, including failure of the
trial judge to fully inform him of the charges and to establish a
factual basis for the plea, an alleged double jeopardy violation
related to charging him with robbery, burglary, and theft arising
from the same incident, and ineffective assistance of counsel
related to pretrial procedures and an alleged erroneous promise
by his attorney on the sentence he would receive.
court denied this motion.
The trial
On appeal, this Court affirmed the
trial court's denial of the motion, stating all of Shifflett's
complaints clearly were refuted by the record.
Shifflett v.
Commonwealth, 85-CA-1000-MR (unpublished opinion rendered
February 28, 1986).
Shifflett did not seek discretionary review
of this Court's opinion by the Kentucky Supreme Court.
In August 1997, Shifflett filed the current motion for
relief pursuant to CR 60.02(e) and (f).
In the motion, Shifflett
sought to have the conviction and sentence for theft under
Indictment No. 80-CR-097 vacated on the grounds that double
jeopardy under the Fifth Amendment of the United States
Constitution and Section 13 of the Kentucky Constitution barred a
conviction for both robbery and theft.
the motion without a hearing.
The trial court denied
This appeal followed.
Shifflett raises two arguments, both of which represent
variations on the same theme involving a double jeopardy
violation related to his convictions for robbery in the first
degree and theft over $100.
First, he contends that the trial
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court erred by allowing him to plead guilty to both robbery and
theft because convictions on both violated the Double Jeopardy
Clause of the Fifth Amendment and Section 13.
Second, he
contends that he received ineffective assistance of counsel
because his attorney allowed him to plead guilty to, and did not
properly advise him about, the double jeopardy violation created
by the plea to both robbery and theft.
Both of these arguments
are without merit.
Shifflett’s CR 60.02 motion is procedurally barred.
In
Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983), the Kentucky
Supreme Court established the requisite appellate procedure in
criminal cases.
The Court held that a defendant must first avail
himself of RCr 11.42 when that remedy is available, and then
utilize CR 60.02 only for issues that could not have reasonably
been presented by way of RCr 11.42.
Id. at 856-57.
More
recently, the Court said in McQueen v. Commonwealth, Ky., 948
S.W.2d 415, 416 (1997), cert. denied, ___ U.S. ___, 117 S. Ct.
2325, ___ L. Ed. 2d ___ (1997):
A defendant who is in custody under sentence
. . . is required to avail himself of RCr
11.42 as to any ground of which he is aware,
or should be aware, during the period when
the remedy is available to him. Civil Rule
60.02 is not intended merely as an additional
opportunity to relitigate the same issues
which could “reasonably have been presented”
by direct appeal or RCr 11.42 proceedings.
Shifflett has already brought an RCr 11.42 motion that even
included a double jeopardy claim based on the same grounds as
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those raised in the current CR 60.02 motion.
Shifflett was aware
of the double jeopardy issue and actually raised it in the prior
RCr 11.42, so he cannot raise it again in a CR 60.02 motion
either directly or on the basis of an ineffective assistance of
counsel claim.
The trial court did not err in denying the CR
60.02 motion.
For the foregoing reasons, we affirm the order of the
Boyle Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas Lee Shifflett, Pro Se
Eddyville, Kentucky
A. B. Chandler, III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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