RICHARD W. WEST v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 30, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001211-MR
RICHARD W. WEST
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE DORTCH, JUDGE
ACTION NO. 93-CR-00004
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, KNOPF AND TACKETT, JUDGES.
TACKETT, JUDGE:
Appellant, Richard West (West), appeals pro se
from an order of the Ohio Circuit Court denying his Kentucky Rule
of Civil Procedure (CR) 60.02 motion.
We affirm.
West was indicted for forgery in the second degree, and
later entered into a plea agreement with the Commonwealth whereby
he would receive a two-year prison term.
In 1993, the trial
court sentenced West in accordance with the plea agreement and
ordered his sentence to “run consecutive to a five-year sentence
he has received from the Daviess Circuit Court.”
West
subsequently was granted shock probation, but that probation was
revoked in May 1995.
West filed a CR 60.02 motion in 1997 asking the trial
court to modify his sentence to run concurrently with any other
sentence he was serving.
The only basis for the motion was the
alleged hardship West’s incarceration was causing his family.
The trial court denied West’s motion later in 1997.
1998, West filed a second CR 60.02 motion.
In October
That motion stated
that the trial court erred by ordering his Ohio County sentence
to run consecutively to his Daviess County sentence because he
had not been formally sentenced in Daviess County at the time the
Ohio County sentence was imposed.
The trial court denied West’s
second CR 60.02 motion without elaboration on December 2, 1998.
In a letter to the clerk of the Ohio Circuit Court
dated December 24, 1998, but not filed until January 12, 1999,
West stated that he wanted to appeal the trial court’s order.
West later filed a “motion appealing order” on February 1, 1999,
and a motion for an evidentiary hearing.
The trial court issued
an order denying West’s motion for an evidentiary hearing in
March 1999.
West then filed a notice of appeal in May 1999,
stating that he was appealing the trial court’s December 2, 1998
order.
On appeal, West again argues that the trial court erred
by ordering his Ohio County sentence to be served consecutive to
his Daviess County sentence.
The Commonwealth raises serious
concerns regarding whether West’s appeal was timely filed.
However, even examining the matter on its merits, West’s argument
must fail.
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CR 60.02 “is meant to provide relief which is not
available by direct appeal or under [Kentucky Rule of Criminal
Procedure] RCr 11.42.”
98, 101 (1998).
Barnett v. Commonwealth, Ky., 979 S.W.2d
West has not demonstrated why he did not avail
himself of those avenues of relief between his 1993 sentencing
and his October 1998 CR 60.02 motion.
Accordingly, West has not
demonstrated why he is entitled to the “special, extraordinary”
remedy afforded by CR 60.02.
Id.
West fails to cite authority which would require the
trial court to grant his CR 60.02 motion.
The transcript of
West’s guilty plea hearing conclusively shows that he was made
fully aware of the trial court’s ability to order his Ohio County
sentence to be served concurrently or consecutively with his
Daviess County sentence, yet he still persisted in his desire to
enter a plea of guilty.
The transcript provides the following
colloquy:
Q 27
It is my understanding that you have
similar charges pending in other counties.
Is that correct?
A
County.
Yes sir, Hopkinsville and Daviess
Q 28
Do you understand that I may order
those sentences in those other counties to
run concurrently or consecutively?
A
Yes, sir.
Q 29
Do you understand what concurrent
and consecutive means?
A
Yes, sir.
Q 30
Do you understand that the
Commonwealth has made no recommendation in
regard to that?
-3-
A
Yes, sir.
Q 31
What is your understanding of the
Commonwealth’s recommendation. You just tell
me in your own words.
A
Okay,
but whether it
with the other
my presentence
I get a sentence of two years,
runs concurrent or consecutive
time I am getting depends on
investigation and report.
. . . .
Q 37
And that I can also sentence you to
five years to run consecutive to the time you
can get in these other counties?
A
Yes, sir.
Q 38
And you still want to plead guilty?
A
Yes, sir.
West’s “[s]olemn declarations in open court carry a strong
presumption of verity.”
Centers v. Commonwealth, Ky. App., 799
S.W.2d 51, 54 (1990).
West has not shown that the trial court abused its
discretion in denying his CR 60.02 motion.
court’s judgment must be affirmed.
Therefore, the trial
Barnett, supra at 102 (“Given
the high standard for granting a CR 60.02 motion, a trial court’s
ruling on the motion receives great deference on appeal and will
not be overturned except for an abuse of discretion.”).
The judgment of the Ohio Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard W. West, Pro Se
West Liberty, Kentucky
A. B. Chandler III
Attorney General
Dana M. Todd
Assistant Attorney General
Frankfort, Kentucky
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