CILLUS CALDWELL v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 12, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002733-MR
CILLUS CALDWELL
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 98-CR-00130
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Cillus Caldwell, pro se, has appealed from an
order of the Bell Circuit Court entered on October 9, 2000, which
denied his motion to vacate, correct, set aside or modify his
sentence pursuant to RCr1 11.42 and KRS2 532.070.
Having
concluded that the trial court did not err in denying Caldwell’s
motion, we affirm.
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Revised Statutes.
Caldwell was indicted by a Bell County grand jury on
August 8, 1998, on one count of murder,3 for the fatal shooting
of Larry Slusher.
On May 10, 1999, a jury found Caldwell guilty
of manslaughter in the second degree,4 and recommended a 10-year
prison sentence.
On June 24, 1999, the trial court sentenced
Caldwell in accordance with the jury’s recommendation.
Caldwell
did not file a direct appeal of his conviction.
However, on September 21, 2000, nearly 15 months after
his final sentencing, Caldwell filed a motion to vacate, correct,
set aside, or modify his sentence pursuant to RCr 11.42 and KRS
532.070.
In that motion, Caldwell requested that the trial court
(1) “enter an order reducing his sentence of imprisonment from a
ten (10) year term to a maximum term of five (5) years”; (2)
“schedule an evidentiary hearing”; and (3) provide him with
appointed counsel to represent him on the motion.
The
Commonwealth did not respond to Caldwell’s RCr 11.42 motion,
which the trial court denied on October 9, 2000.
In its order
denying the motion, the trial court stated that it “can only
modify the Defendant’s sentence pursuant to KRS 532.070 at the
time of sentencing.
Once the Court either accepts or modifies
the jury’s sentence at the time of sentencing, the Court loses
jurisdiction over any potential release of the Defendant other
3
KRS 507.020.
4
KRS 507.040.
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than those authorized by Statute or Rule and none of which are
applicable to the present case.”
This appeal followed.
In his brief, Caldwell reiterates the arguments he made
before the trial court.
Caldwell states that he was “not able to
[find] any time limitation, in which a trial court has to modify
a defendant’s sentence, imposed, or even implied.”
Caldwell
further states that he “has been unable to locate any published
case law in which it was found that a trial court can only modify
a defendant’s sentence at the very time of initial sentencing or
imposition of final judgment.”
In Silverburg v. Commonwealth,5 the Supreme Court of
Kentucky held:
KRS 532.070 does not define the time within
which the judgment complained of may be set
aside or modified. Where the Criminal Rules
do not provide a time, the Civil Rules shall
apply. RCr 1.10. CR6 59.05 provides that a
judgment may be altered, amended or vacated
within ten days after the entry of the final
judgment.7
In Silverburg, our Supreme Court held that 38 days after the
entry of the final judgment and sentence the trial court had
“lost jurisdiction of the case.”8
Likewise, in the case sub
judice, 15 months after the final judgment and sentence was
5
Ky., 587 S.W.2d 241 (1979).
6
Kentucky Rules of Civil Procedure.
7
Id. at 244.
8
Id.
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entered, the trial court had lost jurisdiction of the case and
could not modify Caldwell’s sentence under KRS 532.070.
In his brief, Caldwell states that “in reviewing
Appellant’s original RCr 11.42 motion, it is clear to see that
Appellant complied with the guidelines of RCr 11.42 ‘to the
letter.’”
We disagree.
While Caldwell’s motion may be facially
correct, we opine that procedurally Caldwell should have filed a
motion pursuant to CR 60.02.
While ordinarily a final judgment
may only be altered, amended or vacated within ten days after its
entry,9 CR 60.02 provides that in extraordinary circumstances a
circuit court may relieve a party from its judgment at any time.
In Gross v. Commonwealth,10 our Supreme Court provided
a comprehensive summary of the post-judgment remedies that are
available to a movant:
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 Boykin11 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
9
CR 59.05; Silverburg, supra.
10
Ky., 648 S.W.2d 853 (1983).
11
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969).
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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
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.
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. . .
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
have been presented” by RCr 11.42
proceedings.12
From our review of the record, we learn that Caldwell
did not request a reduction of his sentence at the sentencing
hearing.
Caldwell also did not challenge his sentence through a
direct appeal.
He has failed to properly invoke either RCr 11.42
or CR 60.02, nor has he stated any grounds entitling him to
relief under either of these rules.
The trial court was correct
to deny Caldwell’s motion due to a lack of jurisdiction.
Accordingly, the order of the Bell Circuit Court is
affirmed.
ALL CONCUR.
12
Id. at 856-57.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Cillus Caldwell, Pro Se
LaGrange, Kentucky
Albert B. Chandler, III
Attorney General
Matthew Nelson
Assistant Attorney General
Frankfort, Kentucky
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