ARLISS1 WAYNE GROSS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 5, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002375-MR
ARLISS1 WAYNE GROSS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 01-CR-002665
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER AND TACKETT, JUDGES; AND MILLER, SENIOR JUDGE.2
TACKETT, JUDGE:
Arliss Gross appeals from an order of the
Jefferson Circuit Court denying his motion to clarify whether he
was sentenced under Kentucky’s violent offender statute.
We
agree with the trial court’s determination that it was
unnecessary to specify that Gross’ victim suffered death due to
the fact that Gross pled guilty to the offense of murder.
Consequently, the trial court’s order stating that the violent
1
2
Arliss is spelled “Arlis” on the notice of appeal.
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
offender statute is applicable to Gross’ sentence of
imprisonment is affirmed.
Due to its brevity and clear explanation of the facts
of this case, we begin by quoting the trial court’s order of
October 9, 2002, which is at issue here.
BACKGROUND SUMMARY
On November 19, 2001, Defendant was
indicted on the capital charge of Murder and
on the charge of Tampering with Physical
Evidence, relating to the November 12, 2001
death of Christopher Ray Johnson, a [two
year-old] child. On March 13, 2002,
Defendant entered a plea of guilty, pursuant
to North Carolina v. Alford, to said charges
based upon the Commonwealth’s recommendation
of thirty-seven years on the Murder charge
and five years on the charge of Tampering
with Physical Evidence, to run concurrently
for a total of thirty-seven years. A
judgment of conviction and sentence to serve
thirty-seven years was entered by the Court
on March 13, 2002.
On May 2, 2002, Defendant filed a
motion for modification/reduction of his
sentence. The motion was denied by the
Court on June 3, 2002. On July 30, 2002,
Defendant filed a motion to clarify that he
was not sentenced as a violent offender
under [Kentucky Revised Statute] 439.3401.
OPINION
In his motion, Defendant argues that
he should not be considered a violent
offender for parole eligibility purposes
under KRS 439.3401, since the Court did not
designate in its judgment of conviction and
sentence that the “victim suffered death” as
required by KRS 439.3401(1). Given that
Defendant pled guilty to the charge of
Murder, it was readily apparent in the
-2-
judgment that the victim suffered death.
Consequently, KRS 439.3401 is applicable to
the Defendant’s thirty-seven year sentence.
Therefore, the Court enters the
following Order:
ORDER
IT IS HEREBY ORDERED AND ADJUDGED that
the motion brought by Defendant, Arliss
Wayne Gross, to clarify that he was not
sentenced as a violent offender under KRS
439.34012 is DENIED.
On appeal, Gross argues that the Department of
Corrections lacked the authority to impose parole eligibility at
85% of his thirty-seven year sentence due to the trial court’s
failure to designate him as a violent offender.
The statute in
question, KRS 439.3401, reads in pertinent part as follows:
(1)
As used in this section, “violent
offender” means any person who has been
convicted of or pled guilty to the
commission of a capital offense, Class
A felony, or Class B felony involving
the death of the victim or serious
physical injury to a victim . . . .
The court shall designate in its
judgment whether the victim suffered
death or serious physical injury.
. . . .
(3)
A violent offender who has been
convicted of a capital offense or Class
A felony with a sentence of a term of
years or Class B felony who is a
violent offender shall not be released
on probation or parole until he has
served at least eighty-five percent
(85%) of the sentence imposed.
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In its judgment and sentence on his guilty plea, the trial court
failed to specifically state that Gross’ victim had suffered
death or serious physical injury.
However, Gross pled guilty to
the offense of Murder, which is defined under KRS 507.020 as
follows: “A person is guilty of murder when: (a) With intent to
cause the death of another person, he causes the death of such
person . . . .”
Clearly, it is impossible to commit the offense
of Murder without causing the death of the victim.
Consequently, any judgment convicting a defendant of Murder
implicitly designates that the victim suffered death.
While it
would be preferable for trial courts to state in their judgments
that KRS 439.3401 is applicable to a convicted defendant’s
sentence, we are not persuaded that the failure to do so in this
case overrides the legislature’s intent to restrict parole
eligibility in cases involving violent offenses.
Gross next contends that the trial court was required
to grant him an evidentiary hearing on his motion.
He cites as
authority the requirement that a trial court hear evidence when
a motion to vacate sentence under Kentucky Rule of Criminal
Procedure (RCr) 11.42 has been filed if the allegations
contained in the motion cannot be refuted on the face of the
record.
Gross’ motion to specify that he was not sentenced as a
violent offender is not an RCr 11.42 motion; therefore,
evidentiary hearing requirements for such cases are inapplicable
-4-
to the situation at hand.
Further, Gross has cited no authority
supporting his request for an evidentiary hearing in cases such
as this one.
For the forgoing reasons, the order of the Jefferson
Circuit Court denying Gross’ motion to specify that he was not
sentenced as a violent offender is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Arlis Wayne Gross, Pro Se
Burgin, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
David A. Smith
Assistant Attorney General
Frankfort, Kentucky
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