CHARLES HELTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 4, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002372-MR
CHARLES HELTON
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NOS. 82-CR-00061 AND 82-CR-00121
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE: Charles Helton, pro se, has appealed from an
order of the Pulaski Circuit Court entered on September 14, 1999,
which summarily denied his “motion for modification of sentence
pursuant to CR1 60.02 and/or KRS2 532.070” on the grounds that
“[t]he Judicial branch of government, and therefore this Court,
has no jurisdiction to modify a final judgment beyond the time
limits allowed for a shock probation motion.”
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
Having concluded
that the trial court erred as a matter of law as to Helton’s CR
60.02 motion, we vacate its order and remand for further
proceedings.
The record on appeal is very limited.
The underlying
convictions in this case occurred on February 24, 1983, but the
record begins with an order by the Pulaski Circuit Court entered
on November 13, 1986.3
The first document of record that is
relevant to this appeal is Helton’s motion for modification of
sentence, which was filed on September 7, 1999.
In his motion
and memorandum in support, Helton alleged that he had received
two concurrent life sentences for two convictions of rape in the
first degree.
Helton requested relief pursuant to CR 60.02(f)
and KRS 532.070.
Helton alleged three separate grounds that
supported his claim for relief: (1) that on the date of the
crime, February 1, 1982, the two rape victims were 13 and 15
years old, whereby he could not have been guilty of rape in the
first degree, which required a victim to be 12 years of age or
younger — thus, he claims he should have been charged with rape
in the second degree; (2) that he received ineffective assistance
of counsel from the person (James Louis Cox) who served as his
attorney before the trial court, because Cox was not admitted to
the bar during part of his representation of Helton and a second
attorney, who claimed to represent Helton had never talked to
3
The order concerned a Federal Magistrate’s order that the
state court’s record be filed in the U.S. District Court in
Helton’s Habeas Corpus action.
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Helton and that as a result of this ineffective representation,
his case was not properly investigated; and (3) that he was
unable to adequately participate in his own defense because he
was impaired by severe depression, paranoia and prescription
medication.
The Commonwealth did not respond to Helton’s motion,
which was summarily denied by the trial court on September 14,
1999.
This appeal followed.
Unfortunately, in his three-page brief, Helton adds
nothing to the arguments that he made before the trial court.
Similarly, the Commonwealth, in its three-page brief, has
provided very little assistance in deciding this case.
The
Commonwealth cites Commonwealth v. Gross,4 and Silverburg v.
Commonwealth,5 for its argument that “[t]he law [ ] has been well
settled that the trial court lost jurisdiction over the criminal
sentence ten days after entry of judgment in 1983.”
As we will
demonstrate herein, this simple statement merely scratches the
surface of this area of the law.
KRS 532.070(1) provides as follows:
When a sentence of imprisonment for a
felony is fixed by a jury pursuant to KRS
532.060 and the trial court, having regard to
the nature and circumstances of the crime and
to the history and character of the
defendant, is of the opinion that a sentence
of imprisonment is necessary but that the
4
Ky., 936 S.W.2d 85 (1996)(appellant’s name was Charles J.
Gross, II).
5
Ky., 587 S.W.2d 241 (1979).
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maximum term fixed by the jury is unduly
harsh, the court may modify that sentence and
fix a maximum term within the limits provided
in KRS 532.060 for the offense for which the
defendant presently stands convicted.
We agree with the Commonwealth that in Silverburg the Supreme
Court held that 38 days after the entry of the judgment and
sentence the trial court had “lost jurisdiction of the case and
the entry of the order modifying the sentence is void.”6
However, numerous cases have held that it is proper for
the trial court to consider a movant’s claim for relief from a
sentence pursuant to CR 60.027 well after the ten-day period
provided for in CR 59.05.
In Gross v. Commonwealth,8 our Supreme
Court provided a comprehensive summary of the post-judgment
6
Id. at 244.
7
CR 60.02(f) provides:
On motion a court may, upon such terms
as are just, relieve a party or his legal
representative from its final judgment,
order, or proceeding upon the following
grounds:
. . .
(f) any other reason of an extraordinary
nature justifying relief. The motion shall
be made within a reasonable time, and on
grounds (a), (b), and (c) not more than one
year after the judgment, order, or proceeding
was entered or taken. A motion under this
rule does not affect the finality of a
judgment or suspend its operation.
8
Ky., 648 S.W.2d 853 (1983)(appellant’s name was Arnold
Gross).
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remedies that are available to a movant.
Since Gross approached
these issues in such a complete manner, we quote liberally from
it:
The structure provided in Kentucky for
attacking the final judgment of a trial court
in a criminal case is not haphazard and
overlapping, but is organized and complete.
That structure is set out in the rules
related to direct appeal, in RCr 11.42, and
thereafter in CR 60.02. CR 60.02 is not
intended merely as an additional opportunity
to raise Boykin9 defenses. It is for relief
that is not available by direct appeal and
not available under RCr 11.42. The movant
must demonstrate why he is entitled to this
special, extraordinary relief. Before the
movant is entitled to an evidentiary hearing,
he must affirmatively allege facts which, if
true, justify vacating the judgment and
further allege special circumstances that
justify CR 60.02 relief.
CR 60.02 was enacted as a substitute for
the common law writ of coram nobis. The
purpose of such a writ was to bring before
the court that pronounced judgment errors in
matter of fact which (1) had not been put
into issue or passed on, (2) were unknown and
could not have been known to the party by the
exercise of reasonable diligence and in time
to have been otherwise presented to the
court, or (3) which the party was prevented
from so presenting by duress, fear, or other
sufficient cause. Black’s Law Dictionary,
Fifth Edition, 487, 1444.
In Harris v. Commonwealth, Ky., 296 S.W.
2d 700 (1956), this court held that 60.02
does not extend the scope of the remedy of
coram nobis nor add additional grounds of
relief. We held that coram nobis “is an
extraordinary and residual remedy to correct
or vacate a judgment upon facts or grounds,
not appearing on the face of the record and
9
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969).
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not available by appeal or otherwise, which
were not discovered until after rendition of
judgment without fault of the party seeking
relief.”
In Jones v. Commonwealth, 269 Ky. 779,
108 S.W.2d 816, 817 (1937), this court held
that the purpose for the writ is to obtain a
new trial in situations in “which the real
facts, as later presented on application for
the writ, rendered the original trial
tantamount to none at all, and when to
enforce the judgment as rendered would be an
absolute denial of justice and analogous to
the taking of life or property without due
process of law.”
Thus, while the remedies formerly
available in criminal cases by writ of coram
nobis have been preserved by CR 60.02
(Balsley v. Commonwealth, Ky., 428 S.W.2d
614, 616 (1967)), the remedies have not been
extended, but have been limited by the
language of that rule.
. . .
We hold that the proper procedure for a
defendant aggrieved by a judgment in a
criminal case is to directly appeal that
judgment, stating every ground of error which
it is reasonable to expect that he or his
counsel is aware of when the appeal is taken.
Next, we hold that a defendant is
required to avail himself of RCr 11.42 while
in custody under sentence or on probation,
parole or conditional discharge, as to any
ground of which he is aware, or should be
aware, during the period when this remedy is
available to him. Final disposition of that
motion, or waiver of the opportunity to make
it, shall conclude all issues that reasonably
could have been presented in that proceeding.
The language of RCr 11.42 forecloses the
defendant from raising any questions under CR
60.02 which are “issues that could reasonably
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have been presented” by RCr 11.42
proceedings.10
We recognize that Commonwealth v. Gross, supra, which
is relied upon by the Commonwealth, limited the application of CR
60.02.
The Supreme Court stated that KRS 439.265, the shock
probation statute, does not “authorize ‘continuing jurisdiction’
or any other type of change in the original sentence.”
The Court
also stated that “[a]ll other types of amendments or
modifications are subject to the limitations of CR 59.05 and CR
60.02.”
The Court held that “Silverburg and McMurray11 are
applicable, and the trial court acted beyond its jurisdictional
authority in granting probation under the auspices of KRS
439.265, in that the ten-day time limit of CR 59.05 had
expired.”12
The Supreme Court addressed the trial court’s
application of CR 60.02, which had been based on the trial
court’s error in refusing to consider a suspended sentence as
required by KRS 533.010, as follows:
It is questionable whether the issue of
mistake in the pre-sentence investigation
report can be properly brought to this Court
pursuant to CR 60.02. As stated in previous
opinions of this Court, the purpose of CR
60.02 is to allow the trial court a method to
correct errors in judgments upon a showing of
“facts or grounds, not appearing on the face
of the record and not available by appeal or
otherwise, which were discovered after
rendition of judgment without fault of the
10
Id. at 856-57.
11
McMurray v. Commonwealth, Ky.App., 682 S.W.2d 794 (1985).
12
Commonwealth v. Gross, supra at 87.
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party seeking relief.” Harris v.
Commonwealth, Ky., 296 S.W.2d 700, 701
(1956); see also Gross v. Commonwealth, Ky.,
648 S.W.2d 853, 856 (1983). The trial court
order modifying this sentence indicated that
in its original sentencing hearing the
required pre-sentence investigation report
opined that Gross was not eligible for
probation as a result of his convictions.
This opinion was not challenged at that
sentencing hearing nor was it challenged on
direct appeal in his first appeal to the
Court of Appeals. It is only after the
passage of two years that Gross advanced the
argument to which the trial court agreed that
his convictions were in fact eligible for
probation. Whether Gross was eligible for
probation or not is immaterial in this
adjudication in that the issue did appear on
the face of the record and was not challenged
by Gross at the sentencing hearing.
Therefore, the issue appears to be barred
from any collateral attack whether by CR
60.02 or otherwise.13
Thus, Commonwealth v. Gross is consistent with Gross v.
Commonwealth, and in fact, relied upon it.
Both cases
recognized, pursuant to Harris, that the circuit court which
sentenced the defendant had jurisdiction to hear certain claims
of relief “to correct or vacate a judgment upon facts or grounds,
not appearing on the face of the record and not available by
appeal or otherwise, which were not discovered until after
rendition of judgment without fault of the party seeking
relief.”14
13
Id. at 88-89.
14
Harris v. Commonwealth, Ky., 296 S.W.2d 700, 701 (1956).
(See also these recent cases which applied CR 60.02: Cardwell v.
Commonwealth, Ky., 12 S.W.3d 672 (2000); Land v. Commonwealth,
Ky., 986 S.W.2d 440 (1999); Barnett v. Commonwealth, Ky., 979
(continued...)
-8-
As we discussed previously, the record in this case is
so limited that it does not include any relevant documents from
the indictment in 1982 until Helton’s motion in 1999.
It is not
even clear from the record on appeal if Helton pled guilty or was
convicted by a jury.
There are no documents concerning his
direct appeal or whether he filed a RCr 11.42 motion.
Since the
circuit court erred as to its jurisdiction of Helton’s CR 60.02
motion, and since the record does not allow us to make a
determination as to whether or not that error was harmless, we
vacate the order of the Pulaski Circuit Court and remand this
matter for further proceedings consistent with this Opinion.
This remand does not mean that the trial court is required to
conduct an evidentiary hearing.
“Before the movant is entitled
to an evidentiary hearing, he must affirmatively allege facts
which, if true, justify vacating the judgment and further allege
special circumstances that justify CR 60.02 relief.”15
However,
if the record on remand is incomplete, it may be necessary for
the trial court to conduct a hearing to “reconstruct the record.”
ALL CONCUR.
14
(...continued)
S.W.2d 98 (1998); and Fryrear v. Parker, Ky., 920 S.W.2d 519
(1996)).
15
See Gross, supra at 856.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles Helton, Pro Se
LaGrange, KY
A.B. Chandler, III
Attorney General
Gregory F. Fuchs
Assistant Attorney General
Frankfort, KY
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