ALDEAN HENDERSON, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 14, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1998-CA-001201-MR
and
1998-CA-002106-MR
ALDEAN HENDERSON, JR.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST A. JASMIN, JUDGE
ACTION NO. 80-CR-00412
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE, JOHNSON, AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Aldean Henderson appeals pro se from an order of
the Jefferson Circuit Court entered on May 6, 1998, that denied
his motion for RCr1 11.42 relief and a second order entered on
July 24, 1998, that denied his CR2 60.02 motion to have his
conviction vacated or set aside.
Having concluded that Henderson
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Rules of Civil Procedure.
was not entitled to relief on either motion, we affirm both of
the trial court’s orders.
Henderson was convicted of robbery in the first degree
(KRS3 515.020), burglary in the first degree (KRS 511.020), and
sexual abuse in the first degree (KRS 510.110).
He was also
convicted of being a persistent felony offender in the first
degree (PFO I).
On July 21, 1980, Henderson received a prison
sentence of two life terms and twenty years, which sentences were
to run concurrently.
Henderson took a direct appeal to the Supreme Court of
Kentucky which, in a published opinion, affirmed his conviction,
finding that Henderson’s allegations that, inter alia, he had
been deprived effective assistance of counsel, and that an
amendment of the PFO indictment was improper were without merit.4
Thereafter, Henderson filed a CR 60.02 motion attacking the
effectiveness of his trial counsel.
The circuit court denied
that motion and, on appeal, this Court affirmed, concluding
that this is appellant’s second CR 60.02
motion, that many of his complaints were also
addressed in the direct appeal, and that he
has received the complete array of judicial
redress available to him. He has been ably
represented throughout every stage of his
various encounters with the justice system,
been granted evidentiary hearings, and been
permitted to supplement arguments of legal
counsel with his own pro se claims.”5
3
Kentucky Revised Statutes.
4
Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982).
5
Court of Appeals No. 1984-CA-2477-MR, rendered August 8,
1986, not-to-be-published.
-2-
On September 26, 1997, Henderson filed his third CR
60.02 motion wherein he claimed that the amendment of the PFO
indictment at trial was unconstitutional as a violation of his
right to due process and equal protection.
In essence, he
averred that his PFO conviction was unlawful.
Subsequently, on October 2, 1997, Henderson filed a RCr
11.42 motion alleging ineffective assistance of counsel.
The
trial court denied the RCr 11.42 motion on the grounds that it
was successive, barred by the statutory limitation period, as
well as the doctrine of laches.
From this order, appeal no.
1998-CA-001201 followed.
While the appeal of the RCr 11.42 matter was pending,
Henderson moved for a judgment on the pleadings regarding his CR
60.02 motion.
The trial court, on July 23, 1998, denied that
motion and appeal no. 1998-CA-002106-MR followed.
The two
appeals were consolidated for our review.
With regard to appeal no. 1998-CA-001201, we conclude
that the disposition of this matter is governed by the applicable
law of the case.
Specifically, the issues contained in the RCr
11.42 motion were addressed and decided by our Supreme Court in
Henderson v. Commonwealth, supra.
Therefore, that holding
operates as the law of the case, is binding on this Court, and
cannot be disturbed by this Court.6
Given that our highest Court
has determined that these specific claims made by Henderson lack
merit, we are neither authorized nor inclined to attempt to
6
Commonwealth v. Schaefer, Ky., 639 S.W.2d 776 (1982).
-3-
disrupt that holding as it operates as a judgment upon which we
must, and shall, adhere.7
In appeal no. 1998-CA-002106-MR, Henderson argues that
the trial court’s denial of his CR 60.02 motion operated as a
deprivation of his constitutional right to due process and equal
protection.
Specifically, he claims that since his court record
had been transferred to this Court at the time he filed his
motion for a judgment on the pleadings, it was impossible for the
trial court to properly evaluate the merits of that motion.
We
disagree.
On July 17, 1998, Henderson filed a motion for a
judgment on the pleadings in regard to his CR 60.02 motion.
At
that time, the court record had already been transferred to this
Court for review of Henderson’s RCr 11.42 motion in the other
appeal decided herein.
In the July 17, 1998, motion Henderson
stated, inter alia:
The Judge of this Court seem [sic] to be
so devious and so full of hatred, as well as
a lack of respect for law and his oath, that
he has probably wrote [sic] an order denying
the [movant’s] motions but haven’t gave [sic]
it to the Clerk to file. To delay movant’s
appeal, and his freedom from this unlawful
PFO conviction. [sic]
In response thereto, the trial court issued its order,
wherein it stated:
As the Defendant is aware, his recent appeal
has resulted in the removal of the record in
this matter to the Court of Appeals. The
materials left with the Circuit Court do not
contain the CR 60.02 motion purportedly filed
on September 25, 1997. However, as the
7
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
-4-
Defendant’s current motion states that he
seeks, “ . . . his freedom from this unlawful
PFO conviction,” it appears to this Court
that the Defendant continues to assert the
unconstitutionality of the PFO statute, as he
has in all of his previous pleadings. As
such, the Defendant’s CR 60.02 motion must be
overruled, since the constitutionality of
that statute has been established, see Parke
v. Raley, 506 U.S.___, 113 S.Ct. 517, 121
L.Ed.2d 391 (1992).
Actually, Henderson’s claim was that he should be
permitted to retroactively challenge the amendment of his PFO
indictment which, at the time of his 1980 trial, added six
additional prior felony offenses.
This argument regarding the
amendment ignores the fact that the original indictment contained
sufficient prior felony convictions to impose the sentencing
enhancement.8
Therefore, any alleged error would be harmless
since Henderson’s substantial rights were not affected.9
As such
CR 60.02 relief is unavailable to Henderson as no “substantial
miscarriage of justice will result from the effect of the final
judgment.”10
We believe Henderson has failed to demonstrate
either to this Court or the trial court below any extraordinary
circumstances justifying CR 60.02 relief.11 Hence, albeit for the
wrong reason, the trial court correctly denied Henderson’s CR
60.02 motion.12
8
See KRS 532.080(3).
9
CR 61.01.
10
Wilson v. Commonwealth, Ky., 403 S.W.2d 710, 712 (1966).
11
See Lewallen v. Commonwealth, Ky.App., 584 S.W.2d 748
(1979).
12
Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985).
-5-
In accordance with the foregoing discussion, the orders
of the Jefferson Circuit Court are affirmed.
TACKETT, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Aldean Henderson, Jr., pro se
Eddyville, KY
A.B. Chandler III
Attorney General
William L. Daniel, II
Asst. Attorney General
Frankfort, KY
-6-
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