CHARLES L. SIMPSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 8, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-000743-MR
CHARLES L. SIMPSON
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
INDICTMENT NO. 96-CR-00051
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM and HUDDLESTON, Judges.
HUDDLESTON, Judge: Charles Simpson appeals from a Franklin Circuit
Court order denying his motion for post-conviction relief pursuant
to Kentucky Rules of Civil Procedure (CR) 60.02.
that
he
received
ineffective
assistance
of
Simpson contends
appellate
counsel
because his Department of Public Advocacy attorneys did not file a
motion for discretionary review with the Kentucky Supreme Court
after this Court, on direct appeal, affirmed his convictions for
first-degree stalking and carrying a concealed deadly weapon.
During the early morning hours of January 14, 1996,
Simpson began making calls to his ex-girlfriend, Tasha Miller.
According to trial testimony, Simpson made references to O. J.
Simpson and threatened to cut Miller’s throat.
Simpson went to Miller’s apartment.
Later that night,
In response to Miller’s call,
the police had arrived ahead of Simpson.
In the course of
arresting Simpson at the scene, police discovered a ten-inch
butcher knife concealed in his coat sleeve and a short paring knife
in his pants pocket.
On March 26, 1996, Simpson was indicted for, among other
things, first-degree stalking1 and carrying a concealed deadly
weapon2.
As the predicate aggravating factor under the stalking
statute, the indictment stated that Simpson had “previously been
served
with
a
protective
order.”3
The
Commonwealth
later
discovered that the protective order had expired at a time prior to
January 14, 1996, and on November 21, 1996, the prosecutors filed
a motion to amend the indictment to state as the aggravating factor
that the acts “were committed while Simpson had a deadly weapon on
or about his person.”4
On November 27, 1996, the trial court
entered an order denying the motion to amend.
The trial court held
that a protective order need not have been in effect at the time of
the alleged stalking, but need only have been issued at sometime in
the past.
Following a jury trial, Simpson was found guilty of
stalking and carrying a concealed weapon.
1
Ky. Rev. Stat. (KRS) 508.140.
2
KRS 527.020.
3
See KRS 508.140(1)(b)(1).
4
See KRS 508.140(1)(b)(4).
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On February 14, 1997,
final judgment was entered sentencing Simpson to 12 months in jail
on the concealed weapon charge and one and one-half years in prison
on
the
stalking
concurrently.
charge,
with
the
sentences
to
be
served
Following his conviction, Simpson filed a pro se
motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42
to vacate his sentence, which was subsequently denied.
Simpson
appealed his conviction and the denial of his RCr 11.42 motion to
this Court.
On June 30, 2000, this Court rendered an unpublished
opinion affirming Simpson’s conviction and the denial of his RCr
11.42 motion.5
We held that the trial court erred when it found
that the stalking statute requires only that a protective order
have been issued sometime in the past, but that the error was
harmless because the uncontradicted evidence that Simpson was
carrying a deadly weapon at the time of the incident was sufficient
to sustain the conviction pursuant to KRS 508.140(1)(b)(4).
According to Simpson, after this Court’s opinion was
rendered, the Department of Public Advocacy attorneys appointed to
represent him in his direct appeal sent him a letter stating that
they would not be filing a motion for discretionary review with the
Supreme Court.
Simpson claims the letter was dated July 17 and
received on July 20, and notified him that he had 30 days from the
rendition
of
this
Court’s
opinion
to
file
a
motion
for
discretionary review; in fact, under the version of CR 76.20(2)(b)
in effect at the time, Simpson would have had only 20 days to file
5
See Case No. 1997-CA-000689-MR and Case No. 1997-CA-
000690-MR.
-3-
his motion.
Simpson alleges that because the 20-day deadline had
already elapsed when he received the letter, he was unable to
pursue an appeal to the Supreme Court.
On January 16, 2001, Simpson filed a motion to set aside
his conviction pursuant to CR 60.02(e) and (f).
Citing appellate
counsels’ failure to file a motion for discretionary review and
their belated notification of their intentions, the motion alleged
that Simpson had received ineffective assistance of counsel.
On
March 6, 2001, the trial court entered an order denying Simpson’s
motion.
This appeal followed.
Simpson contends that he received ineffective assistance
of counsel on the basis that appellate counsel failed to file a
motion for discretionary review with the Supreme Court after this
Court affirmed his conviction on direct appeal.
Simpson alleges
that an appeal to the Supreme Court would have been successful on
the basis that this Court’s holding that his possession of a weapon
could serve as the aggravating predicate for the stalking charge
subjected him to double jeopardy because the fact of his possession
of the weapon was also an element of his conviction for carrying a
concealed deadly weapon.
The relief Simpson seeks is not available under CR 60.02.
CR 60.02 was enacted as a substitute for the common-law writ of
coram nobis, and while the remedies formerly available in criminal
cases by writ of coram nobis have been preserved, the remedies have
not been extended, but, rather have been limited by the language of
-4-
the rule.6
Inexperience, incompetency and inefficiency of counsel
are not grounds for granting coram nobis.7
Moreover, a defendant
who claims to have lost the right of appeal for reason of the lack
of effective assistance of counsel to prosecute the appeal must
seek relief by requesting reinstatement of the appeal from the
appellate court which has jurisdiction to hear the appeal, not by
post-conviction motion.8
Further, on the merits, this Court’s opinion of June 30,
2000, did not subject Simpson to double jeopardy.
In Commonwealth
v. Burge,9 the Supreme Court announced a return to the "same
elements" test set forth in Blockburger v. United States,10 which
is codified at Kentucky Revised Statutes (KRS) 505.020, determining
when a single course of conduct may establish more than one
offense.
Under this test, double jeopardy does not occur when a
person is charged with two crimes arising from the same course of
conduct, as long as each statute “requires proof of an additional
fact which the other does not.”11
Here,
even
though
Simpson’s
stalking
and
concealed
weapons convictions both required proof that he carried a deadly
6
Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856 (1983).
7
Meredith
v.
Commonwealth,
Ky.,
312
S.W.2d
460,
462
(1958).
8
See Commonwealth v. Wine, Ky., 694 S.W.2d 689 (1985).
9
Ky., 947 S.W.2d 805 (1996).
10
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
11
Burge, 947 S.W.2d at 809; Blockburger 284 U.S. at 304, 52
S. Ct. at 182, 76 L. Ed. at 309; Farmer v. Commonwealth, Ky. App.,
6 S.W.3d 144, 146 (1999).
-5-
weapon, each offense also contained a unique element not required
for conviction of the other offense.
The offense of first-degree
stalking requires proof of stalking and threats,12 but the offense
of carrying a concealed deadly weapon does not.13
Similarly, the
offense of carrying a concealed deadly weapon requires proof that
the weapon was concealed,14 but the offense of first-degree stalking
does not require proof of concealment.15 Consequently, as Simpson’s
stalking and weapons convictions each required proof of a fact that
the other did not, this Court’s opinion of June 30, 2000, did not
subject Simpson to a double-jeopardy violation.
For the foregoing reasons, the order from which this
appeal is prosecuted is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
12
See KRS 508.140(1)(a)(1) and (1)(a)(2).
13
See KRS 527.020(1).
14
See KRS 527.020(1).
15
See KRS 508.140(1)(b)(4).
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