MICHAEL LEE VOGELSBERG v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 19, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002133-MR
MICHAEL LEE VOGELSBERG
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEVEN P. RYAN, JUDGE
ACTION NO. 82-CR-001465
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, JOHNSON, AND SCHRODER, JUDGES.
BARBER, JUDGE.
Michael Lee Vogelsberg appeals from an opinion
and order of the Jefferson Circuit Court denying his Kentucky
Rule of Civil Procedure (CR) 60.02 motion seeking an order
setting aside the court’s prior order denying his motion to
supplement his previous motion filed pursuant to Kentucky Rule of
Criminal Procedure (RCr) 11.42.
We affirm.
The root of Vogelberg’s complaints giving rise to this
appeal involve a tortured administrative history.
In July 1982,
the Jefferson County Grand Jury indicted Vogelsberg in Indictment
No. 82-CR-982 on one felony count of first-degree robbery, two
felony counts of first-degree wanton endangerment, and one count
of being a persistent felony offender in the first degree (PFO
I), involving a theft at a convenience store in July 1982.
In
September 1982, the Jefferson County Grand Jury indicted
Vogelsberg in Indictment No. 82-CR-1465 on one count of capital
murder, one count of first-degree robbery, and one count of being
a persistent felony offender in the first degree, in connection
with the death of a clerk from multiple gunshot wounds during a
robbery at a convenience store in April 1982.
In March 1983, Vogelsberg entered a guilty plea in both
indictments during the same proceeding pursuant to an agreement
with the Commonwealth.
Under Indictment No. 82-CR-982, he pled
guilty to first-degree robbery, two counts of first-degree wanton
endangerment and PFO I with the Commonwealth recommending
sentences of ten years on the robbery convictions enhanced to
twenty years under the PFO I count and one year on each of the
two counts of wanton endangerment with no enhancement, all to run
concurrently with each other.
Under Indictment No. 82-CR-1465,
Vogelsberg pled guilty to murder and PFO I with the Commonwealth
recommending a sentence of life in prison and moving to dismiss
the first-degree robbery count.
The Commonwealth further
recommended that the sentence in Indictment No. 82-CR-982 run
concurrently with the life sentence in Indictment No. 82-CR-1465.
On August 17, 1984, Vogelsberg filed an RCr 11.42
motion and a motion for appointment of counsel in the case under
Indictment No. 82-CR-1465.
In his RCr 11.42 motion, he
challenged his convictions based on ineffective assistance of
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counsel on five grounds alleging counsel failed to: (1)
investigate his prior felony convictions to determine their
validity; (2) attack the separate use of his prior felonies for
purposes of the PFO charge; (3) spend sufficient time
interviewing and discussing the case with him; (4) file a
suppression motion; and (5) conduct a thorough investigation and
interview of potential witnesses.
The trial court appointed an
attorney to represent appellant on the RCr 11.42 motion.
Although the record is unclear, it appears that Vogelsberg moved
to hold adjudication of his RCr 11.42 motion in abeyance while he
challenged one of his convictions in federal court through
federal post-judgment habeas proceedings under 42 U.S.C. § 2254.
Nothing happened on Vogelsberg’s state post-judgment
motion until April 15, 1996, when he filed a “Motion to Reinstate
RCr 11.42 Proceedings.”
Again he sought appointment of counsel
and raised the same issues concerning ineffective assistance of
counsel that he had raised in the original 1984 motion.1
On
April 24, 1996, the circuit court summarily denied the motion to
reinstate the RCr 11.42 motion.
On May 9, 1996, Vogelsberg filed
a notice of appeal of the court’s order denying his motion to
reinstate.
On June 6, 1996, the clerk of the Court of Appeals
issued a letter requesting certification of the record by the
circuit court clerk.
On June 10, 1996, the circuit court clerk
certified the record on appeal.
On September 18, 1996, this
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Vogelsberg indicates in the motion that one reason for the
long delay in seeking reinstatement was his desire to have the
same inmate legal aide, who had been transferred to another penal
institution, handle the case.
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Court entered an order dismissing the appeal.
Vogelsberg v.
Commonwealth, 96-CA-001342-MR.
On September 10, 1997, Vogelsberg filed a Motion to
Allow Amendment/Supplement by Appointed Counsel, a Motion for
Appointment of Counsel, and a Motion to Vacate, Set Aside, or
Correct Judgment pursuant to RCr 11.42 in both cases under
Indictment No. 82-CR-962 and Indictment No. 82-CR-1465.
In this
RCr 11.42 motion, Vogelsberg again challenged his trial counsel’s
effectiveness but also raised several new issues including the
sufficiency of the evidence for the convictions, the improper
enhancement of his murder sentence because of the PFO conviction
(KRS 532.080), whether the guilty plea was entered knowingly,
voluntarily and intelligently, and whether the trial court erred
by failing to conduct a competency hearing.
On February 3, 1998,
the circuit court denied the RCr 11.42 motion in an extensive
opinion and order that addressed the merits of all the issues.
Vogelsberg states that he sent a timely notice of appeal to the
circuit court clerk’s office, but due to an administrative error,
the notice was not properly filed and entered on the record.
On
August 7, 1998, Vogelsberg’s appellate brief was returned to him
by the clerk of the Court of Appeals because this Court had no
record of an appeal having been filed.
On September 14, 1998, Vogelsberg filed in the circuit
court a Motion to Reinstate Notice of Appeal, resubmitted his
notice of appeal, and filed motions seeking appointment of
counsel and in forma pauperis status on appeal.
On November 13,
1998, the circuit court summarily denied his motion for
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appointment of counsel but granted his motion to proceed in forma
pauperis on appeal.
In December 1998, this Court issued a show
cause order requiring Vogelsberg to explain why his appeal from
the February 1998 opinion and order should not be dismissed as
untimely.
Vogelsberg v. Commonwealth, 1998-CA-002839.
After he
responded, this Court dismissed the appeal and later denied his
motion to reconsider.
On January 12, 2000, the Kentucky Supreme
Court vacated the dismissal and remanded the case for
reconsideration in light of the evidence showing that the circuit
court clerk erroneously filed the notice of appeal in the wrong
case file.
On February 28, 2000, this Court reinstated the
appeal and it is currently pending.
Meanwhile, on January 19, 1999, Vogelsberg filed a
document entitled “Renewed Motion to Allow Amendment - Supplement
of Submitted RCr 11.42 Motion” in which he sought a ruling from
the circuit court on his September 1997 motion to supplement his
1996 RCr 11.42 Motion which he asserted the circuit court had
failed to adjudicate.
However, he did not explain how or why the
RCr 11.42 motion should be amended or supplemented.
There is no
indication in the record that this renewed motion to allow
amendment was ruled on by the circuit court.
On July 22, 1999, Vogelsberg filed a document entitled
“Motion to Set Aside or Amend Prior Ruling Denying Movant’s RCr
11.42 Motion, Pursuant to CR 60.02.”
In this motion, he sought
reconsideration of the court’s failure to act on his request to
supplement his September 1997 RCr 11.42 motion.
Although he
admits that the circuit court denied his motion for appointment
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of counsel and failed to specifically rule on his request to
supplement the RCr 11.42 motion, the bulk of his CR 60.02 motion
dealt with the need for appointment of counsel in order to
adequately present his post-judgment complaints.
He also cited
CR 15.01 as authority for allowing him to amend the RCr 11.42
motion.
He asked the court to “Vacate the Order denying Movant’s
RCr 11.42 Motion, inasmuch as it applies to the separate enjoined
Motion for Amendment/Supplement, and if the Court continues to
deny counsel, allow Movant to proceed pro se.”
In an opinion and order entered on August 11, 1999, the
circuit court denied the CR 60.02 motion.
It stated that
appointment of counsel is not generally available on a CR 60.02
motion, and that CR 60.02 was not the proper procedural device
for appealing the denial of counsel or motion to supplement in a
RCr 11.42 proceeding.
This appeal followed.
Vogelsberg argues on appeal that he should have been
appointed counsel to represent him in his September 1997 RCr
11.42 proceeding.
He alleges that the Commonwealth failed to
disclose exculpatory evidence during the initial prosecution,
which an attorney would have discovered if one had been
appointed.
Vogelsberg also contends that he was entitled to an
attorney under KRS 31.100, which deals with appointment of
counsel for indigent persons.
He states that under CR 15.01, he
had the right to amend his RCr 11.42 motion.
He also cites the
case of Bowling v. Commonwealth, Ky., 926 S.W.2d 667 (1996), for
authority on his ability to supplement his collateral motion.
Vogelsberg contends that CR 60.02 is the proper motion because he
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has been denied a full hearing on his appeal of the circuit
court’s denial of the RCr 11.42 motion filed in September 1997.
Generally, the standard of review on appeal of a trial
court’s denial of a CR 60.02(f) motion is abuse of discretion.
Bethlehem Minerals Co. v. Church and Mullins Corp., Ky., 887
S.W.2d 327 (1994); Dull v. George, Ky. App., 982 S.W.2d 227
(1998).
In addition, “CR 60.02 is not a separate avenue of
appeal to be pursued in addition to other remedies, but is
available only to raise issues which cannot be raised in other
proceedings.”
McQueen v. Commonwealth, Ky., 948 S.W.2d 415, 416
(1997), cert. denied, 521 U.S. 1130, 117 S. Ct. 2535, 138 L. Ed.
2d 1035 (1997).
As the above described procedural history reveals,
Vogelsberg’s collateral attack of his convictions and guilty plea
has been plagued by extensive delays and administrative errors.
He has filed numerous motions for reconsideration and appointment
of counsel.
A part of the confusion can be traced to the fact
that while he entered his guilty plea in both Indictment No. 82CR-982 and Indictment No. 82-CR-1465 in a single proceeding,
those indictments originated in two separate divisions of circuit
court in Jefferson County.
Furthermore, over the years, several
different circuit court judges have entered rulings on his
various motions.
After reviewing the record, we believe the trial court
did not err in denying the motion.
As the trial court indicated,
CR 60.02 is not the proper procedural device for raising the
issues in the current case.
Vogelsberg’s primary complaint
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concerns the circuit court’s denial of his motion to appoint
counsel in the RCr 11.42 proceeding.
This complaint is more
appropriately addressed on direct appeal within his appeal of the
RCr 11.42 motion.
Moreover, appointment of counsel is not
required in an RCr 11.42 proceeding where the substantive claim
is refuted on the record or appointment of counsel would be
futile.
Commonwealth v. Stamps, Ky., 672 S.W.2d 336 (1984);
Maggard v. Commonwealth, Ky., 394 S.W.2d 893 (1965).
Vogelsberg made a reference to the need to amend his
RCr 11.42 motion to include an argument based on the
prosecution’s failure to provide exculpatory evidence as a ground
for the CR 60.02 motion.
Indeed, if Vogelsberg did uncover newly
discovered evidence rendering the conviction potentially invalid,
then CR 60.02 or RCr 10.06 would be possible legitimate avenues
to raise that issue even though an appeal of the denial of
Vogelberg’s RCr 11.42 was pending before this Court.
v. Commonwealth, Ky. App., 761 S.W.2d 182 (1988).
See Wilson
However,
Vogelsberg did not ask for a stay of the appeal proceedings based
on his CR 60.02 motion in the circuit court.
10.06(2).
See CR 60.04 and CR
Moreover, Vogelsberg failed to provide any specifics
related to the claim and merely made vague references to possible
exculpatory evidence that might have been discovered if an
attorney had been appointed to handle his RCr 11.42.
In conclusion, we believe the trial court did not abuse
its discretion in denying the CR 60.02 motion.
Vogelsberg failed
to establish a cognizable claim under that rule or show that
other avenues of relief were unavailable.
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As Vogelsberg points out, the Court in Bowling v.
Commonwealth, Ky., 926 S.W.2d 667 (1996), cert. denied by Sanborn
v. Kentucky, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955
(1996), stated that a movant may seek permission to amend his RCr
11.42 motion.
In recognition of the need for both speed and
specificity, we hold that an RCr 11.42 motion
must be filed in an expeditious manner and is
subject to amendment, if appropriate with
leave of court. Due to the unquestioned
right of defendants to have their contentions
decided by a court, “leave [to amend] shall
be freely given when justice so requires.”
CR 15.01.
Id. at 670.
Vogelsberg’s reliance on CR 15.01 and the trial
court’s authority to allow amendments lacks merit for several
reasons.
First, the trial court lost jurisdiction to allow an
amendment of the RCr 11.42 motion ten days after entering its
final order dismissing the RCr 11.42 motion.
See generally
Silverburg v. Commonwealth, Ky., 587 S.W.2d 241 (1979); McMurray
v. Commonwealth, Ky., 682 S.W.2d 794 (1985); RCr 12.04(3); CR
59.04.
A trial court may allow a post-judgment amendment to the
pleadings only if it has continuing jurisdiction after issuing a
non-final judgment.
S.W.2d 146 (1985).
See, e.g., Givens v. Boutwell, Ky. App., 701
Second, the trial court has broad discretion
in deciding whether to allow an amendment and may consider such
factors as whether the amendment would fail to cure any
deficiencies or the futility of the amendment.
v. Hartmann, Ky. App., 747 S.W.2d 614 (1988).
First Nat’l Bank
In the current
case, the trial court lacked authority to permit an amendment to
the RCr 11.42 motion under CR 15.01 because it had entered a
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final judgment approximately two years earlier, and Vogelsberg
failed to establish an abuse of discretion even if the court
could have granted permission to amend.
Finally, we note that subsequent to the trial court’s
order and the filing of briefs in this appeal, Vogelsberg’s
direct appeal of the circuit court’s denial of his September 1997
RCr 11.42 motion was reinstated pursuant to an order of the
Kentucky Supreme Court.
That appeal is currently pending and the
decision in that case should resolve the complaints raised in the
current appeal.
For the foregoing reasons, we affirm the order of the
Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Lee Vogelsberg, Pro Se
Eddyville, Kentucky
A.B. Chandler III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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