STACY L. MARSH v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 16, 2004, 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000474-MR
STACY L. MARSH
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 98-CR-002522
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, Chief Judge; BUCKINGHAM and TACKETT, Judges.
COMBS, CHIEF JUDGE.
Stacy Marsh (“Marsh”) appeals from an order
of the Jefferson Circuit Court overruling his motion to correct
sentence pursuant to RCr1 11.42.
After reviewing the record and
applicable law, we have found no error in the decision of the
trial court.
Thus, we affirm.
On October 15, 1998, Stacy Marsh was indicted by a
Jefferson County Grand Jury for: (1) trafficking a controlled
substance, first-degree; (2) disorderly conduct; (3) possession
of a controlled substance, first-degree; and (4) the status
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Kentucky Rules of Criminal Procedure
offense of being a second-degree persistent felony offender
(PFO).
On August 25, 1999, Marsh filed a motion to enter a
guilty plea.
In exchange, the Commonwealth offered him the
following proposal: (1) a ten-year sentence for trafficking a
controlled substance; (2) a concurrent ninety-day sentence for
disorderly conduct; and (3) dismissal of the PFO charge.
On
October 14, 1999, the trial court granted Marsh’s motion,
accepted the Commonwealth’s sentencing recommendations, and
entered a Final Judgment of Conviction.
Marsh filed a motion for shock probation on March 21,
2000.
On May 3, 2000, the trial court probated him subject to
requirements of enrollment in a substance abuse treatment
program, submission to periodic and random drug testing, and
payment of court costs and a nominal supervision fee.
On July 25, 2001, his probation officer received a
report that Marsh was using cocaine.
Admission/Sanction form.
Marsh signed an
On August 27, 2001, a report was filed
that Marsh had failed to attend substance abuse counseling.
After admitting to using cocaine on August 24, 2001, Marsh was
arrested and placed at Daviess County Detention Center.
On September 19, 2001, his probation officer received
notice that the Owensboro police intended to charge Marsh with
felony theft and second-degree burglary.
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The probation officer
sent a “Special Supervision Report,” requesting that the court
issue a warrant for Marsh’s arrest and that a hearing be set for
revocation of his probation.
The warrant was issued on
September 29, 2001, and on October 22, 2001, the Commonwealth
moved to revoke Marsh’s probation.
A Daviess County Grand Jury indicted Marsh for felony
theft and burglary, to which he entered a plea of not guilty.
However, on March 15, 2002, he entered a guilty plea to
receiving stolen property valued at $300 or more and to seconddegree burglary.
On that same day, the Daviess Circuit Court
sentenced him to five years for each of his convictions, to be
served concurrently.
However, the judgment recited that the
sentences “shall run consecutively with any other sentence the
Defendant has received.”
On June 5, 2002, the probation officer sent a
supplemental “Special Supervision Report” to the trial court,
which scheduled a hearing on the Commonwealth’s motion to revoke
Marsh’s probation.
On August 13, 2002, the trial court entered
an order revoking Marsh’s probation.
Four days later, the court
filed a memorandum opinion setting forth the legal and factual
basis for its order.
On January 22, 2003, Marsh filed a “Motion to Correct
Sentence” pursuant to RCr 11.42.
In denying the motion, the
trial court entered a handwritten order, which appears to have
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been entered on January 29, 2003.
On February 3, 2003, Marsh
tendered his notice of appeal to the trial court.
On March 5,
2003, the notice of appeal was stamped filed by the clerk’s
office.
As of June 27, 2003, no appellate brief had been
filed, and this Court ordered Marsh to show cause why the appeal
should not be dismissed.
Marsh responded on July 7, 2003, by
filing a motion for appointment of counsel.
On September 12,
2003, we ordered the Department of Public Advocacy (“DPA”) to
review Marsh’s file in order to determine whether it would
provide him with representation.
DPA concluded Marsh’s appeal
“was an action that did not merit the appointment of appellate
counsel under the guidelines of KRS2 31.110,” adding that it did
not “appear to be a proceeding that a reasonable person with
adequate means would be willing to bring at his own expense.”
On December 10, 2003, we denied Marsh’s motion for appointment
of counsel, ordering him to submit a pro se brief within thirty
days.
Marsh appeals from the order of the Jefferson Circuit
Court overruling his motion to correct sentence pursuant to RCr
11.42.
He argues that under KRS 533.040(3), his more recent
sentence arising from the Daviess County convictions and his
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Kentucky Revised Statutes
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original sentence in the earlier Jefferson County case must be
served concurrently as to one another.
The Commonwealth argues that Marsh’s appeal is
procedurally barred because it was filed untimely.
We disagree.
Cr3 73.02 provides that a notice of appeal must be filed within
thirty (30) days of the judgment or order from which the appeal
is taken.
Marsh tendered his notice of appeal, along with a
motion to proceed in forma pauperis, on February 3, 2003 -- five
days after the order was entered.
However, the clerk returned
the notice to Marsh on February 6, noting that Marsh had failed
to submit an order permitting him to proceed in forma pauperis.
Despite his repeated efforts, Marsh’s tendered order to proceed
in forma pauperis was not signed by the court until February 28,
2003, and was not entered until March 5, 2003.
Marsh’s tendered
notice of appeal was stamped “filed” in the clerk’s office as of
that date.
Because Marsh was unable timely to secure an order
permitting him to proceed in forma pauperis, his notice of
appeal tendered just five days after entry of the court’s order
was not filed timely by the clerk until after the allotted
thirty days had expired.
Marsh compiled with the rule as fully
as possible.
Additionally, we are not persuaded that Marsh’s
failure to secure an order permitting him to proceed without the
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Kentucky Rules of Civil Procedure
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filing fee requires the automatic dismissal of this appeal.
CR
73.02(1) provides in relevant part:
If an appeal or a cross-appeal is from an
order or judgment of the circuit court, the
filing fee required...shall be paid to the
clerk of the circuit court at the time the
notice of the appeal or cross-appeal is
tendered, and the notice shall not be
docketed or noted as filed until such
payment is made...
CR 73.02(2) provides in relevant part:
The failure of a party to file timely a
notice of appeal...shall result in a
dismissal or denial. Failure to comply with
other rules relating to appeals...does not
affect the validity of the appeal...but is
ground for such action as the appellate
court deems appropriate...
Analyzing these rules, the Kentucky Supreme Court held
in Norwest Bank Minnesota, N.A. v. Hurley, Ky., 103 S.W.3d 21
(2003), that when a notice of appeal is filed timely but the
required filing fee has not been paid simultaneously, automatic
dismissal of the appeal is not required.
Instead, the Supreme
Court held that the Court of Appeals shall have the discretion
to determine what sanctions -- if any -- are appropriate.
Under
the circumstances of the case, we do not agree with the
Commonwealth that Marsh’s appeal should be dismissed for failure
to comply with the provisions of CR 73.02(1).
Therefore, we shall address the merits of Marsh’s
appeal.
Although he has invoked RCr 11.42, that rule is not the
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proper procedural vehicle for his complaint.
Because the motion
does not contain any factual or legal allegations related in any
way to the issue of ineffective assistance of counsel, Marsh has
failed to state a claim on that basis.
However, even if we were to address his argument
premised on KRS 533.040(3), it would fail.
Marsh errs in
contending that KRS 533.040(3) mandates that the more recent
sentence arising from the Daviess County convictions must be
served concurrently with his previous sentence in this case.
At
issue are the provisions of two statutes addressing
concurrent/consecutive sentencing in the context of revocation
of parole or probation.
Enacted in 1974, KRS 533.040(3)
provides:
A sentence of probation or conditional
discharge shall run concurrently with any
federal or state jail, prison, or parole
term for another offense to which the
defendant is or becomes subject during the
period, unless the sentence of probation or
conditional discharge is revoked. (Emphasis
added.)
KRS 533.060(2) was enacted in 1976 to remove any doubt
on this issue for the purpose of providing “stiff penalties in
the form of consecutive sentences to those who, after having
been awarded parole or probation, violate that trust by the
commission of subsequent felonies.”
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Brewer v. Commonwealth, 922
S.W.2d at 382.
KRS 533.060(2) forcefully and unequivocally
provides as follows:
When a person is convicted of a felony and
is committed to a correctional detention
facility and released on parole or has been
released by the court on probation, shock
probation, or conditional discharge, and is
convicted or enters a plea of guilty to a
felony committed while on parole, probation,
shock probation, or conditional discharge,
the person shall not be eligible for
probation, shock probation, or conditional
discharge and the period of confinement for
that felony shall not run concurrently with
any other sentence. (Emphasis added.)
In Brewer, the Kentucky Supreme Court also emphasized that
because “KRS 533.060(2) was enacted in 1976, and KRS 533.040(3)
was enacted in 1974, the former controls.”
Marsh was convicted of felony offenses in Daviess
County, and these convictions occurred while he was on probation
for his previous felony conviction.
Thus, KRS 533.060(2)
unambiguously requires that Marsh’s sentences be served
consecutively.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stacy L. Marsh, pro se
Owensboro, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
John R. Tarter
Assistant Attorney General
Frankfort, Kentucky
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