ANTHONY SCOTT WEBB v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 1, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001588-MR
ANTHONY SCOTT WEBB
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, SPECIAL JUDGE
ACTION NO. 94-CR-00036
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Anthony Scott Webb has appealed from an order
entered by the Warren Circuit Court on January 9, 2001, which
denied his CR1 60.02 motion to vacate judgment.
Having concluded
that the trial court properly denied Webb’s CR 60.02 motion, we
affirm.
On January 26, 1994, a Warren County grand jury
1
Kentucky Rules of Civil Procedure.
indicted Webb for burglary in the first degree,2 theft by
unlawful taking over $300.00,3 unlawful transaction with a minor
in the second degree,4 and being a persistent felony offender in
the first degree (PFO I).5
At Webb’s jury trial on September 23,
1994, he was found guilty of burglary in the first degree, theft
by unlawful taking over $300.00, and being a persistent felony
offender in the second degree (PFO II).6
On October 21, 1994,
Webb was sentenced to prison on the burglary conviction, enhanced
by PFO II, to a life sentence and on the theft conviction,
enhanced by PFO II, to a ten-year sentence, with the sentences to
run concurrently.
However, it was also ordered that the life
sentence would run consecutively with other sentences Webb was
serving from indictments in 1991 and 1993.
Webb appealed these 1994 convictions directly to the
Supreme Court of Kentucky and raised the issues of the trial
court’s refusal to severe his case from a co-defendant’s, its
denial of his motion for a change of venue, the admission of
evidence of other crimes, the refusal to provide funds for expert
2
Kentucky Revised Statutes (KRS) 511.020.
3
KRS 514.030.
4
KRS 530.065.
5
KRS 532.080.
6
The underlying conviction for Webb’s PFO II conviction was
a 1991 conviction for burglary in the second degree (9 counts)
and theft by unlawful taking of property valued over $100.00 (11
counts).
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witnesses, improper closing argument, and ineffective assistance
of counsel.
convictions.7
On November 22, 1995, the Supreme Court affirmed the
Specifically, the Supreme Court determined that
Webb’s ineffective assistance of counsel claim was “more properly
the subject of an RCr8 11.42 motion.”
On April 22, 1997, Webb filed a RCr 11.42 motion to
vacate his sentence.9
On March 17, 1999, the trial court entered
an order that the RCr 11.42 motion as supplemented be granted in
part and denied in part.
The trial court ordered that Webb’s
life sentence must run concurrently with all of his other
sentences, not consecutively.10
The trial court also granted
Webb an evidentiary hearing on the issue of ineffective
assistance of counsel.11
As to all other issues raised in Webb’s
7
1994-SC-000884-MR.
8
Kentucky Rules of Criminal Procedure.
9
This motion was supplemented twice, November 24, 1997, and
December 21, 1998.
10
The trial court ruled that pursuant to Bedell v.
Commonwealth, Ky., 870 S.W.2d 779, 783 (1994), the life sentence
imposed in Webb’s case could not be ordered to be served
consecutively with any other sentence.
11
Specifically, the trial court “granted an evidentiary
hearing limited to the following asserted grounds for relief
under RCr 11.42:
(a)
Alleged ineffective assistance of
counsel by trial counsel’s failure to
properly assert a motion for change of
venue;
(b)
Alleged ineffective assistance of
(continued...)
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RCr 11.42 motion, the trial court denied relief on the basis that
the issues could have been raised and should have been raised on
direct appeal.
An evidentiary hearing was held on June 17, 1999;12 and
on September 9, 1999, the trial court entered an order granting
Webb’s RCr 11.42 motion in part and otherwise denying the
motion.13
The trial court found that trial counsel’s failure to
challenge the validity of Webb’s 1991 conviction, which was used
to prove the PFO II charge, constituted ineffective assistance of
counsel.14
11
The trial court concluded that Webb had been
(...continued)
counsel by trial counsel’s failure to
challenge the validity of the prior
felony conviction used by the
Commonwealth to prove the persistent
felony offender charge (See Graham v.
Commonwealth, Ky., 952 S.W.2d 206
(1997)); and
(c)
Alleged ineffective assistance of
counsel by trial counsel’s calling of
co-defendant [Brett] Ridgley as a
witness, over the objection of the
defendant.”
12
The hearing was originally scheduled for April 7, 1999,
but it was reset for June 17, 1999, to allow Webb time to confer
with his new counsel and to adequately prepare for the hearing.
13
The claims concerning change of venue and calling Ridgley
as a witness were denied.
14
At a trial held in 1994, the 1991 conviction was held to
be invalid under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969), because Webb had not been made aware of
his right to confront his accusers. See Webb v. Commonwealth,
Ky., 904 S.W.2d 226 (1995). In the case sub judice, Webb’s trial
counsel failed to challenge the validity of the 1991 conviction
(continued...)
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prejudiced by his trial counsel’s deficient performance and
vacated Webb’s PFO II conviction.
The trial court then
resentenced Webb to 20 years on the burglary conviction and five
years on the theft conviction, ordering that the sentences be
served consecutively.15
Webb appealed the trial court’s denial
of his other RCr 11.42 claims of ineffective assistance of
counsel.
The denial of Webb’s other claims in his RCr 11.42
motion was affirmed by this Court on February 2, 2001,16 and
discretionary review was denied by the Supreme Court on August
15, 2001.17
On February 24, 2000, while Webb’s appeal of his RCr
11.42 motion was still pending, he filed a CR 60.02 motion to
vacate judgment.
The CR 60.02 motion was denied by an order
entered on January 9, 2001, as procedurally improper since the
issues raised by Webb in his CR 60.02 motion could have been
raised and should have been raised in his RCr 11.42 appeal, which
was pending before this Court.
On January 18, 2001, Webb filed a
CR 59.05 motion to vacate or set aside the January 9, 2001,
order.
The CR 59.05 motion was denied by an order entered on
14
(...continued)
and the Commonwealth used the 1991 conviction to prove the PFO II
charge.
15
These were the same sentences recommended by the jury
prior to the enhancement by the PFO II conviction.
16
1999-CA-002267.
17
2001-SC-000142.
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June 29, 2001.
The trial court stated that “the issue which the
defendant seeks to raise in his present motion, and in his prior
motion which the Court overruled in its order entered January 9,
2001, is not an issue which is outside the scope of the case
which is in the jurisdiction of the appellate courts in
defendant’s pending appeal.”18
This appeal followed.19
Webb argues in this appeal that his right to have his
sentence set by a jury pursuant to KRS 532.055 was violated when
the trial court entered the order vacating his PFO II conviction
and sentencing him in accordance with the original sentence
recommended by the jury.
Webb relies on the United States
Supreme Court case of Apprendi v. New Jersey,20 for his claim
that the trial court violated his right to be sentenced by a jury
when it adopted a recommended jury sentence that was based upon
unconstitutional information, i.e., the invalid 1991 conviction.
The trial court ruled that the claim raised by Webb in
his motions filed on February 24, 2000, and January 18, 2001, and
denied in the orders entered on January 9, 2001, and June 29,
2001, was not “outside the scope of the case which is in the
jurisdiction of the appellate courts in defendant’s pending
18
The trial court cited Commonwealth v. Blincoe, Ky.App., 33
S.W.3d 533 (2000).
19
Webb also has a habeas corpus petition currently pending
in United Sates District Court for the Western District of
Kentucky at Bowling Green.
20
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
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appeal.”
Stated differently, since Webb had appealed the trial
court’s ruling on his RCr 11.42 motion, that appeal was the
proper procedural avenue where Webb should have raised his claim
that the trial court erred in his sentencing.
We agree.
Kentucky courts have consistently held that once a
criminal defendant files a motion to vacate sentence under RCr
11.42, he is precluded from raising identical issues under CR
60.02.21
RCr 11.42 provides a procedure for a motion to vacate,
set aside or correct a sentence for a “prisoner in custody under
sentence . . . who claims a right to be released on the ground
that the sentence is subject to collateral attack. . . .”
RCr
11.42 provides a prisoner an opportunity to collaterally attack
an improper sentence on grounds which were not available on
direct appeal.
RCr 11.42(3) provides that the final disposition
of such a motion concludes all issues that could reasonably have
been presented in that proceeding.
In other words, the language
of RCr 11.42 forecloses a defendant from raising any claim under
CR 60.02, if the claim could reasonably have been presented in a
RCr 11.42 motion.
The constitutionality of Webb’s sentencing was an issue
that could have been raised in his RCr 11.42 motion.
Webb claims
that he should be allowed for the first time to argue in his CR
60.02 motion his claim that the trial court erred when it adopted
21
Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983).
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the original recommended jury sentence which was based in part on
evidence of his invalid 1991 conviction.
This argument fails,
however, because Webb still could have raised this issue in his
RCr 11.42 motion.22
As to Webb’s Apprendi argument, we have
found no language in that case that would justify the
extraordinary relief requested.23
For the foregoing reasons, the order of the Warren
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Anthony Scott Webb, Pro Se
Pineville, Kentucky
Albert B. Chandler III
Attorney General
Perry T. Ryan
Assistant Attorney
Frankfort, Kentucky
22
Webb could have argued any issues pertaining to his
sentencing in his RCr 11.42 motion. Webb tries to get around
this fact by claiming that it was the adoption of his original
recommended sentence that violated his rights to a jury
sentencing. This argument, however, is premised on alleged
errors which were made at Webb’s original sentencing and thus
could have been raised in his RCr 11.42 motion.
23
Webb appears to argue that since Apprendi was decided on
June 26, 2000, he could not have been aware of the case when he
brought his RCr 11.42 motion in April 1997. Regardless, we fail
to see how Apprendi entitles Webb to any relief.
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