DALE LEE OWENS v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 1, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-002308-MR
DALE LEE OWENS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
INDICTMENT NO. 76-CR-00341
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
Judge.1
PAISLEY and TACKETT, Judges; and HUDDLESTON, Senior
HUDDLESTON, Senior Judge:
Circuit
1
Court
order
Dale Lee Owens appeals from a Fayette
denying
his
pro
se
“motion
to
vacate
Senior Judge Joseph R. Huddleston sitting as Special Judge
by assignment of the Chief Justice pursuant to Section 110(5)(b)
of the Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.
judgment
of
sentence”
Procedure (CR) 60.02.
pursuant
to
Kentucky
Rules
of
Civil
On appeal, Owens’s sole argument is that
the circuit court abused its discretion “in not reducing [his]
sentence from 105 years to 20 or 50 years . . . pursuant to the
amended
portion
of
[Kentucky
Revised
Statutes]
KRS
532.080(6)(a).”2
On September 27, 1976, a Fayette County Grand Jury
returned
an
indictment
charging
burglary
in
the
degree,
first
Owens
a
with
Class
B
four
felony
counts
of
under
KRS
511.020, and three counts of rape in the first degree, a Class B
felony under KRS 510.040.
guilty” to all charges.
On October 5, 1976, Owens pled “not
Following a jury trial on February 14-
15, 1977, Owens was found not guilty of one count of burglary in
the first degree, guilty of three counts of burglary in the
first degree and guilty of three counts of rape in the first
degree.
2
KRS 532.080(6) currently provides that:
A person who is found to be a persistent felony offender in
the first degree shall be sentenced to imprisonment as
follows:
(a) If the offense for which he presently stands convicted
is a Class A or Class B felony, a persistent felony
offender in the first degree shall be sentenced to an
indeterminate term of imprisonment, the maximum of which
shall not be less than twenty (20) years nor more than
fifty (50) years [the language upon which Owens now
relies], or life imprisonment[.]
2
Following a sentencing hearing, the court rendered a
final judgment and sentence of imprisonment on March 14, 1977.
Consistent
with
the
jury’s
verdict
and
sentencing
recommendation, the court fixed Owens’s sentence at a maximum
term of fifteen years on each count of burglary and twenty years
on each count of rape to be served consecutively for a total of
105 years.
In an unpublished opinion rendered on December 9,
1977, the Kentucky Supreme Court affirmed Owens’s convictions on
direct
appeal
and
that
decision
became
final
when
the
Court
denied his petition for rehearing on November 21, 1978.
Alleging ineffective assistance of counsel both before
and during his trial, Owens filed a motion to vacate, set aside
or correct the judgment and sentence pursuant to Kentucky Rules
of
Criminal
Procedure
(RCr)
11.42
on
October
1,
1997.
Contemporaneous with the filing of his RCr 11.42 motion, Owens
filed a motion “for the appointment of counsel to supplement or
amend
RCr
11.42
motion”
along
with
a
motion
“for
evidentiary hearing with appearance of movant/defendant.”
full
By
order of October 19, 1997, the court appointed Fayette County
Legal Aid to represent Owens and directed his attorney “to file
supplemental grounds, if any, for the relief requested” by Owens
within fifteen days from when the order was mailed.
In
counsel
a
motion
indicated
filed
that
it
on
was
3
November
13,
unnecessary
1997,
to
Owens’s
file
any
supplementary grounds for the requested relief.
Following a
timely response by the Commonwealth, the court denied both his
RCr 11.42 motion and his motion for an evidentiary hearing in an
order entered on January 5, 1998, concluding that “the record in
this case provides no support for [Owens] ineffective assistance
of counsel claims.”
On January 15, 1998, Owens filed his notice
of appeal from that decision.
In an unpublished opinion that
became final on March 11, 1999, this Court affirmed the order
denying both motions.
On
April
3,
2001,
Owens
filed
his
first
CR
60.02
motion, arguing that the judgment of conviction and sentence of
105 years was “statutorily and constitutionally impermissible as
contemplated by CR 60.02(e) and (f)”3 and, therefore, should be
vacated.
According to Owens, once the court ordered the charges
against him to be consolidated, “the charges became a single
charge of burglary and a single charge of rape based on the same
similar
3
character
and
same
acts
or
transactions
connected
In relevant part, Ky. R. Civ. P. (CR) 60.02 provides that:
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:
. . . (e) the judgment is void, or has been satisfied,
released or discharged, or a prior judgment upon which it
is based has been reversed or otherwise vacated, or it is
no
longer
equitable
that
the
judgment
should
have
prospective application; or (f) any other reason of an
extraordinary nature justifying relief.
4
together as a common scheme or plan.”
Thus, he “should have
been tried and convicted of only one count of burglary and one
count of rape” and “the doctrine of collateral estoppel barred
multiple prosecution on both the burglary and rape charges.”
In addition, Owens argued that his sentence should be
reduced
since
the
“current
532.110(c)4
is
consecutive
indeterminate
that,
in
law
no
in
Kentucky
event
terms
shall
exceed
pursuant
the
seventy
to
aggregate
(70)
KRS
of
years.”
Acknowledging that the version of KRS 532.110(c) in effect at
the time of his sentencing differs from the current version in
this crucial respect, Owens maintained that the current version
should
nevertheless
be
applied.
In
the
alternative,
Owens
contended that consecutive sentences “are not kept separate and
distinct, but are merged into one period of years to serve not
4
According to KRS 532.110(1):
When multiple sentences of imprisonment are imposed on a
defendant for more than one (1) crime, including a crime
for which a previous sentence of probation or conditional
discharge has been revoked, the multiple sentences shall
run concurrently or consecutively as the court shall
determine at the time of sentence, except that:
(c) The aggregate of consecutive indeterminate terms shall
not exceed in maximum length the longest extended term
which would be authorized by KRS 532.080 for the highest
class of crime for which any of the sentences is imposed.
In
no
event
shall
the
aggregate
of
consecutive
indeterminate terms exceed seventy (70) years.
Neither the 1998 version of this statute nor the current
version contains a provision making this amendment retroactive.
5
to exceed the maximum sentence of the highest class of crime
charged,” and so his sentence is constitutionally impermissible
because it exceeds the maximum length authorized by KRS 532.080.
In an opinion and order entered on May 4, 2001, the
circuit court denied his motion to vacate.
merger
based
theory,
on
the
separate
court
and
explained
distinct
that
acts,”
Rejecting Owens’s
“[a]ll
and
charges
the
were
Commonwealth
“successfully proved the elements of the six separate offenses
as indicated by the findings of the jury.”
As to his argument
regarding KRS 532.110(1)(c), the court concluded that Owens had
been properly sentenced under the governing law on March 11,
1977, since it is beyond dispute that the current version of the
statute did not apply then and there is no provision indicating
that
the
current
Therefore,
Owens
version
failed
to
should
be
demonstrate
applied
any
retroactively.
grounds
for
the
relief sought.
On May 18, 2001, Owens filed his notice of appeal from
the denial of his CR 60.02 motion.
However, he failed to file a
brief and, on August 29, 2001, we ordered him to show cause why
his appeal should not be dismissed.
Owens neglected to respond,
and on November 15, 2001, we dismissed his appeal for failure to
prosecute.
On October 29, 2002, Owens filed his second CR 60.02
motion
to
vacate
judgment
or
correct
6
sentence,
relying
on
subsections
532.110(1)(c)
(d),5
(e)
and
provides
that
(f).
the
According
aggregate
to
Owens,
KRS
of
consecutive
indeterminate sentences “shall not exceed in maximum length the
longest extended term which would be authorized by KRS 532.080
for the highest class of crime for which any of the sentences
. . . imposed.”
He further contended that under the law in
1977, a sentence authorized by KRS 532.080 for a non-persistent
felony
offender
under
subsections
governed by KRS 532.060.
(6)(a)
and
(b),6
was
also
Under his reasoning, since the 1994
amendment to KRS 532.080 was specifically made retroactive by
subsections (6)(a) and (b),7 the court was required to apply KRS
532.080 retroactively to his case and order his sentences to
“run concurrently for a total of 20 years or at best, a total of
50 years . . . .”
5
Under CR 60.02(d), “fraud affecting the proceedings, other
than perjury or falsified evidence” constitutes a basis for
relief.
6
In relevant part, the 1976 version of that provision under
which Owens was sentenced and the 1994 version are identical.
As correctly observed by the Commonwealth, the amendments upon
which Owens relies “altered nothing pertinent to [Owens’s]
sentence.” Subsection (b) contains the sentencing provision for
PFOs convicted of a Class C or Class D felony and is therefore
inapplicable to Owens.
7
In
1996, the
1994
amendments
to
KRS
532.080
were
specifically made retroactive by subsection (8) (now (9)) which
provides:
“The provisions of this section amended by 1994 Ky.
Acts ch. 396, sec. 11, shall be retroactive.”
Pursuant to KRS
446.080(3):
“No statute shall be construed as retroactive,
unless expressly so declared.”
7
On
November
1,
2002,
the
court
summarily
Owens’s motion and Owen appealed to this Court.
denied
According to
the Commonwealth, his argument “is unavailing on both various
procedural and substantive grounds.”
In Gross v. Commonwealth,8 the Supreme Court held 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.”9
Contrary to the Commonwealth’s assertion, however, Owens could
not have raised the issue of whether the 1994 amendment to KRS
532.080(6)(a) applies to his case in his direct appeal in 1977
since the amendment had not yet been enacted.
RCr 11.42 “provides a vehicle to attack an erroneous
judgment
for
reasons
which
are
not
accessible
by
direct
appeal.”10
But, “[a] defendant is required to avail himself of
RCr
while
11.42
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.”11
Subsection (3) of RCr 11.42 provides that
8
Ky., 648 S.W.2d 853 (1983).
9
Id. at 857.
10
Id. at 856.
11
Id.
8
“[t]he motion shall state all grounds for holding the sentence
invalid of which the movant has knowledge.
Final disposition of
such a motion” or a waiver of the right to pursue that avenue of
relief “shall conclude all issues that reasonably could have
been presented in that proceeding.”12
CR 60.02, on the other hand, affords relief that is
not available by direct appeal or pursuant to RCr 11.42 and
requires the movant to “demonstrate why he is entitled to this
special, extraordinary relief.”
a
defendant
[Owens]
is
Consistent with the foregoing,
precluded
from
raising
any
questions
under CR 60.02 which “reasonably could have been presented” in
RCr 11.42 proceedings.
Pursuant to RCr 11.42(10), any motion under this rule
“shall be filed within three years after the judgment becomes
final, unless the motion alleges and the movant proves . . . (b)
that
the
fundamental
constitutional
right
asserted
was
not
established within the period provided herein and has been held
to
apply
retroactively.”
Since
the
1994
amendments
to
KRS
532.080 were not made retroactive until 1996, Owens’s 1997 RCr
11.42 motion was timely under subsection (10)(b).13
12
As grounds
Id. at 857.
13
In the alternative, Ky. R. Crim. Proc. (RCr) 11.42 also
provides that “[i]f the judgment becomes final before the
effective date of this rule [October 1, 1994], [as is the case
here], the time for filing the motion shall commence upon the
9
for his motion, however, Owens alleged only that he was “denied
effective
assistance
of
violation
of
guaranteed
Fourteenth
rights
Amendments
counsel
to
the
and
him
due
by
United
process
the
States
of
Fifth,
law
in
Sixth
and
Constitution
and
Sections 2 and 11 of the Kentucky Constitution.”
Noticeably
absent from his motion is any mention of the 1994 amendment to
KRS
532.080(6)(a)
relief.
upon
which
he
now
relies
as
a
basis
for
Because Owens could be imputed with knowledge regarding
the 1996 provision making the 1994 amendments to KRS 532.080
retroactive, he was required to raise this ground for holding
his sentence invalid in his 1997 RCr 11.42 motion.
way,
the
issue
of
whether
532.080(6)(a)
applies
to
presented”
the
11.42
in
RCr
the
him
amended
“reasonably
proceedings
Put another
version
could
and,
of
have
therefore,
KRS
been
his
belated attempt to present the issue necessarily fails.
Even if Owens was not barred from raising the issue
regarding KRS 532.080(6)(a) on this basis, the final disposition
of his initial motion pursuant to CR 60.02 would result in the
same outcome.
“that
issues
Kentucky’s highest Court has consistently held
which
could
have
been
presented
in
an
initial
effective date of this rule.”
Because Owens’s judgment became
final in March 1977 (before the effective date of this rule),
the three year statute of limitations set forth in RCr 11.42(10)
began to run on October 1, 1994, meaning the period during which
he could file a RCr 11.42 motion expired on October 1, 1997, the
date on which he filed his motion.
10
motion
to
vacate
judgment
subsequent motions.”14
cannot
thereafter
be
raised
by
Further, when a prisoner fails to appeal
from an order denying his motion to vacate judgment “or when his
appeal is not perfected or is dismissed,”15 he is not permitted
to file a subsequent motion to vacate.
this rule is self-evident:
The rationale behind
“If such a procedure were allowed
there would be no end to the successive applications for postconviction
relief.”16
Accordingly,
the
dismissal
of
Owens’s
appeal from the denial of his first CR 60.02 motion in 2001 for
failure to prosecute precludes discussion of his claim at this
juncture.
But
procedural
even
grounds,
if
Owens’s
his
merits.
As
correctly
amendments
to
KRS
motion
substantive
observed
532.080
by
reflected
is
not
barred
argument
the
by
these
on
the
Commonwealth,
the
1994
fails
on
Kentucky
Chapter 396, Section 11 are not applicable to Owens.
Acts
Rather,
the only change made to KRS 532.080 in 1994 involved subsection
(7),17 a provision that Owens does not allege is implicated on
the instant facts.
14
Lycans v. Commonwealth, Ky., 511 S.W.2d 232 (1974).
15
Id. at 233 (emphasis supplied).
16
Id.
17
In 1976, KRS 532.080(7) read as follows: “A person who is
found to be a persistent felony offender in the first degree
shall not be eligible for probation, shock probation, or
11
In arguing that KRS 532.080(6)(a) as amended requires
his sentence to be reduced, Owens is apparently relying upon the
1998 amendment to this provision, 1998 Ky. Acts ch. 606, sec.
76, as the provision was not amended to include the critical
language,
i.e.,
“nor
more
than
50
years,”
until
that
time.
Unlike the 1994 amendment, however, the 1998 amendment to KRS
532.080(6)(a) was not expressly made retroactive as required by
KRS 446.080(3).
Thus, the 1998 version of KRS 532.080(6)(a)
does not afford Owens any relief.
Equally unsuccessful is Owens’s alternative argument
that
the
amended
version
of
KRS
532.110(1)(c)
applies
retroactively to mandate a reduction in his sentence.
Although
the Commonwealth concedes that this provision was amended in
1998 to place an absolute cap of 70 years on the aggregate of
consecutive
indeterminate
terms,
this
amendment
was
not
expressly made retroactive at the time of its enactment nor does
the current version contain any legislative declaration to that
effect.
Absent
this
mandatory
provision,
the
same
result
follows.
conditional discharge, nor for parole until having served a
minimum term of incarceration of not less than ten years.”
In
1994, this provision was amended to begin with the phrase “If
the offense the person presently stands convicted of is a Class
A, B, or C felony, . . .” and otherwise remained intact.
12
Because
grounds
and
Owens’s
lacks
merit
argument
as
is
well,
barred
the
on
order
procedural
denying
successive CR 60.02 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dale Lee Owens, pro se
West Liberty, Kentucky
Albert B. Chandler III
Attorney General
J. Gary Bale
Assistant Attorney General
Frankfort, Kentucky
13
his
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