JOHN ROGERS v. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 20, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001935-MR
JOHN ROGERS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST JASMIN, JUDGE
ACTION NO. 93-CR-001288
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE: John Rogers appeals from an order of the
Jefferson Circuit Court denying his motions for relief pursuant
to CR1 60.02 and RCr2 11.42.
Because the motions were properly
denied, we affirm.
On October 4, 1993, Rogers was convicted of four counts
of second-degree burglary and was sentenced to ten years in
prison on each count to run concurrently with each other for a
total sentence of ten years.
His sentence was probated, however,
1
Kentucky Rules of Civil Procedure.
2
Kentucky Rules of Criminal Procedure.
for a five-year period on various conditions, including a
condition that he “refrain from violating the law in any
respect.”
On November 6, 1997, the Commonwealth filed a motion
to revoke Rogers’ probation on the ground that he had violated it
due to being convicted of criminal offenses in Indiana.
On February 17, 1999, Rogers, by and through an
attorney, moved the court to enter an agreed order revoking his
probation and reinstating his ten-year sentence.
The agreed
order provided that the sentence would be served consecutively to
his sentence on Indiana charges that Rogers was currently
serving.
Attached to Rogers’ motion was a plea agreement signed
by both Rogers and his attorney which stated that “[i]n exchange
for the defendant’s agreement to admit the violations of
probation, the CW recommends that the sentence of 10 years be
served consecutively with the sentence which the defendant is
serving in Indiana.”
A letter from Rogers to his attorney was
also attached to the motion.
The letter, in Rogers’ handwriting,
stated that he gave permission for the agreed order to be entered
“without my appearance.”
Following the entry of the agreed order
revoking Rogers’ probation in Kentucky, he was released by the
Indiana authorities to the Kentucky authorities to begin serving
his sentence.
On April 28, 1999, a little over two months after the
entry of the agreed order, Rogers filed a “CR 60.02 Motion to
Vacate Sentence and Conviction.”
Although the motion’s title
indicated that it was made for the purpose of vacating the
sentence and conviction, the body of the motion indicated that it
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was made for the purpose of vacating the agreed order revoking
probation.
On June 10, 1999, Rogers filed an RCr 11.42 motion.
That motion likewise sought to have the court vacate the
probation revocation order.
On June 15, 1999, Rogers filed
another CR 60.02 motion, in which he moved the court to award him
additional jailtime credit.
On July 14, 1999, the trial court entered an order
denying Rogers’ CR 60.02 and RCr 11.42 motions.
This appeal
followed.
Rogers states in his brief that “the trial court
mistakenly believed that [he] was appealing his original
conviction when, in fact, he was appealing the court’s revocation
of his probation.”
Having examined the court’s order denying
Rogers’ motions, we agree that the trial court was apparently
mistaken concerning the nature of the motions.
However, any
confusion on the part of the trial court was certainly
understandable in that at least one of the motions specifically
stated that its purpose was to vacate the conviction and
sentence.
Nevertheless, we agree with the trial court that none
of the motions had any merit.
In Rogers’ first CR 60.02 motion, he argued that he was
entitled to relief from the probation revocation order because he
was coerced into signing the order by Indiana authorities and
because his attorney was not licensed to practice law in
Kentucky.
He also alleged in this motion and in his second CR
60.02 motion that he was entitled to additional jailtime credit
-3-
for time he spent in the Bullitt County jail on charges in that
county.
Rogers’ argument that he was entitled to CR 60.02
relief from the probation revocation order because he had been
coerced into agreeing to it by the Indiana authorities is without
merit.
This is an argument that could have been raised on a
direct appeal from the revocation order, and CR 60.02 “is for
relief that is not available by direct appeal[.]”
Commonwealth, Ky., 648 S.W.2d 853, 856 (1983).
Gross v.
Likewise, Rogers’
argument that his lawyer was not licensed to practice law in
Kentucky is without merit.
Assuming the truth of this
allegation, we fail to see how such fact would have prevented his
probation from being revoked due to his conviction of criminal
offenses in another state.
Concerning his CR 60.02 motion as it
related to jailtime credit, Rogers did not argue this issue on
appeal.3
Rogers’ RCr 11.42 motion was also without merit.
Therein, he asserted that he was entitled to relief from the
probation revocation order because he had been coerced to agree
to it by Indiana authorities and because he received the
ineffective assistance of counsel due to counsel’s knowledge of
the coercion.
RCr 11.42 provides a prisoner an opportunity to
seek relief from a sentence through collateral attack by filing a
3
The argument is without merit at any rate. See Duncan v.
Commonwealth, Ky. App., 614 S.W.2d 701 (1980), wherein the court
held that motions concerning the correction of the original
judgment as it relates to jailtime credit are made pursuant to CR
60.02 and must be made within one year of the date of said
judgment. Id. at 702.
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motion to vacate, set aside, or correct it.
RCr 11.42(1).
Rogers has neither cited any authority indicating that a
probation revocation order is subject to RCr 11.42 proceedings
nor are we aware of any such authority.
We conclude that relief
from an order revoking probation is not available under RCr
11.42.
Rogers also argues that the trial court erred in
revoking his probation without a hearing, without his being
present, and without a valid waiver.
merit for two reasons.
This argument is without
First, Rogers did not appeal the agreed
order revoking his probation, and these arguments could have been
raised on direct appeal.
via CR 60.02.
He was thus precluded from raising them
See Gross, 648 S.W.2d at 856.
Second, Rogers
waived his appearance in writing and consented to an agreed order
revoking his probation without a hearing.
The bottom line in this case is that Rogers agreed to
the revocation of his probation and then did not appeal from the
agreed order.
Rather, after the time for filing an appeal from
the order had passed, he commenced to seek relief pursuant to CR
60.02 and RCr 11.42.
Having reviewed those motions and
considered his arguments, we perceive no grounds which would have
allowed him relief under either rule.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
Albert B. Chandler, III
Attorney General
Tami Allen Stetler
-5-
Assistant Attorney General
Frankfort, Kentucky
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