KENNETH LEE GODFREY v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001167-MR
KENNETH LEE GODFREY
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 98-CR-00302
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Kenneth Lee Godfrey, pro se, has appealed an
order entered by the Fayette Circuit Court on May 8, 2001, that
denied his RCr1 11.42 motion to set aside his judgment of
conviction.
Having concluded that the trial court did not err by
denying Godfrey RCr 11.42 relief, we affirm.
On January 13, 1998, Godfrey was an inmate at the
Fayette County Detention Center when he was allowed to
participate in the work release program.
On the morning of
Saturday, January 17, 1998, Godfrey left the jail for work and
1
Kentucky Rules of Criminal Procedure.
failed to return to the jail at the scheduled time.
Godfrey
claimed that he became so intoxicated while working that he was
in a “drunken stupor” at a friend’s house for the remainder of
the weekend.
On Monday, January 19, 1998, Godfrey was arrested
at a local grocery store.
He has claimed that he was preparing
to turn himself in to the police when he was arrested.
On March 19, 1998, a Fayette County grand jury returned
a two count indictment against Godfrey for the offenses of escape
in the second degree2 and persistent felony offender in the first
degree (PFO I).3
On April 24, 1998, Godfrey entered a
conditional guilty plea to both counts.4
Godfrey preserved for
appellate review the issue of whether the trial court erred by
ruling that if he went to trial on the charges of escape in the
second degree and PFO I that he would not be entitled to a jury
instruction on the lesser-included offense of escape in the third
degree.5
On May 22, 1998, the trial court entered its final
judgment and sentenced Godfrey to prison for a period of ten
years.
Godfrey filed a direct appeal on May 27, 1998, and
sought review of the trial court’s ruling concerning him not
being entitled to a jury instruction on escape in the third
2
Kentucky Revised Statutes (KRS) 520.030.
3
KRS 532.080(3).
4
RCr 8.09.
5
KRS 520.040.
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degree.6
On September 18, 1998, Godfrey, by counsel, filed a
motion to dismiss appeal which was supported by his signed waiver
of right to appeal.
This Court dismissed Godfrey’s direct appeal
in an order entered on December 2, 1998.7
On March 21, 2001, Godfrey filed a pro se RCr 11.42
motion.
On May 8, 2001, the circuit court without holding an
evidentiary hearing denied Godfrey’s motion on the grounds that
the issue should have been addressed in Godfrey’s direct appeal.
This appeal followed.
Godfrey claims that the Fayette Circuit Court erred by
denying his RCr 11.42 motion without addressing the merits of the
motion.
In his RCr 11.42 motion Godfrey claimed that his guilty
plea to escape in the second degree and PFO I was improper
because the trial court committed palpable error when it ruled
that he would not be entitled to a jury instruction on the
lesser-included offense of escape in the third degree if he went
to trial on the charges of escape in the second degree and PFO I.
The trial court denied his RCr 11.42 motion and stated:
[T]he Court is of the opinion that the law
does not permit the Defendant to raise in
this proceeding those matters which could
and/or should have been raised in the
original appeal.
6
Case number 1998-CA-001317.
7
The reason for the dismissal is unclear from the record.
In reference to the dismissal, Godfrey makes the following
perplexing statement in his brief: “On May 27, 1998, a Notice of
Appeal was filed on behalf of the Appellant, but for some reason
that is not entirely clear the appeal was dismissed by the
Appellant in December 1998.”
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The Defendant admittedly filed a Notice
of Appeal and subsequently asked the Court of
Appeals to dismiss that appeal from his
conditional plea, raising the substantive
issues raised in this proceeding. This Court
has no knowledge as to why Mr. Godfrey
dismissed his appeal, but he did so and,
therefore, any attempt to modify those
matters which he should have previously
raised on appeal is not properly before this
Court. See Brown v. Commonwealth, [Ky.,] 788
S.W.2d 500 (1990), and Thacker v.
Commonwealth, [Ky.,] 476 S.W.2d 838 (1972).
Post-conviction relief was addressed by our Supreme
Court in Gross v. Commonwealth,8 as follows:
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 appeals, in RCr 11.42, and
thereafter in CR 60.02 [emphasis original].
. . .
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.
In Brown, the Supreme Court of Kentucky adopted an
opinion by the Court of Appeals and stated:
“It is an
established principle that this Court [Court of Appeals] will not
address an issue which was raised in a direct appeal or which
should have been raised in a direct appeal.”9
The Court, quoting
Thacker, then stated:
8
9
Ky., 648 S.W.2d 853, 856 (1983).
Brown, supra at 501.
364 S.W.2d 809 (1963).
See also Howard v. Commonwealth, Ky.,
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It is not the purpose of RCr 11.42 to permit
a convicted defendant to retry issues which
could and should have been raised in the
original proceeding, nor those that were
raised in the trial court and upon an appeal
considered by this court.10
It is well accepted in this Commonwealth that errors
occurring before the trial court should be raised during a direct
appeal.
In Commonwealth v. Basnight,11 this Court stated:
It is clear from our caselaw that the
RCr 11.42 procedure is not designed to give a
convicted defendant an additional appeal or a
review of trial errors that should have been
addressed upon the direct appeal. A trial
error asserted in an RCr 11.42 motion must
rise to the level of a constitutional
deprivation of due process.
Godfrey claims that since he was participating in the
work release program his confinement was not at a detention
facility and that he should have been entitled to a jury
instruction on escape in the third degree.
KRS 520.010(5)
defines “escape” as “departure from custody or the detention
facility in which a person is held or detained with knowledge
that the departure is unpermitted, or failure to return to
custody or detention following a temporary leave granted for a
specific purpose or for a limited period[.]” KRS 520.010(4)
defines “detention facility” as “any building and its premises
used for the confinement of a person: (a) Charged with or
convicted of an offense[.]”
10
KRS 520.030 provides that a person
Thacker, supra at 839.
11
Ky.App., 770 S.W.2d 231, 237 (1989); see also Tipton v.
Commonwealth, Ky., 376 S.W.2d 290 (1963); and Clay v.
Commonwealth, Ky., 454 S.W.2d 109 (1970).
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is guilty of escape in the second degree “when he escapes from a
detention facility or, being charged with or convicted of a
felony, he escapes from custody.”12
KRS 520.040 provides that a
person is guilty of escape in the third degree “when he escapes
from custody.”13
It is clear from the statutes that Godfrey
escaped from a detention facility and not merely from custody;
and this Court so held in Commonwealth v. Johnson,14 which
probably explains why Godfrey’s direct appeal was voluntarily
dismissed.
Notwithstanding the weakness of Godfrey’s arguments on
the merits of his claim, the trial court correctly refused to
address the merits since Godfrey’s RCr 11.42 motion was
procedurally barred.
Accordingly, the opinion and order of the
Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth Lee Godfrey, Pro Se
Burgin, Kentucky
Albert B. Chandler III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
12
Escape in the second degree is a Class D felony.
13
Escape in the third degree is a Class B misdemeanor.
14
Ky.App., 615 S.W.2d 1 (1981)(An inmate who has been
released from a detention facility on work release and fails to
return to the detention facility is guilty of escape in the
second degree and escape in the third degree does not apply).
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