RICHARD ALAN GAILLARD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 3, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000831-MR
RICHARD ALAN GAILLARD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 94-CR-000625
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
McANULTY, JUDGE: In March 1994, Richard Gaillard (hereinafter
appellant) was indicted by the Jefferson County Grand Jury for
first-degree burglary, kidnapping, first-degree sodomy, firstdegree rape, intimidating a witness, first-degree wanton
endangerment (2 counts), terroristic threatening (2 counts), and
violation of a protective order (2 counts).
On July 11, 1995,
he appeared before the Court for the apparent purpose of
entering a guilty plea.1
Apparently, Judge Laurence Higgins
(retired) was presiding when his plea agreement was made, and
appellant asserts that Judge Higgins accepted his plea.
Appellant alleges that, subsequently, the regularly
presiding judge in Division One, Judge Ernest Jasmin, refused to
accept the plea despite being informed that Judge Higgins had
already accepted it.
However, Judge Jasmin’s signature appears
on an order on the plea of guilty entered on July 24, 1995.
This order recites the court’s acceptance of the plea, and it
notes the Commonwealth’s recommendation of sentence of twelve
years on the burglary, kidnapping, sodomy and rape charges;
three years on the wanton endangerment and intimidating a
witness charges; and twelve months on the terroristic
threatening and violation of protective order charges; all to
run concurrently for a total sentence of twelve years.
Without explanation in the record, a second written
plea offer is entered in the record, again signed by appellant
and defense counsel, on August 11, 1995.
Appellant contends
that Judge Jasmin informed the defense at the sentencing hearing
that he would not accept the previous sentence recommendation.
In the second offer, the plea agreement is changed from 12 years
1
This appearance is not recorded on videotape. The video record of the
proceedings is limited to a plea colloquy and sentencing hearing on August
11, 1995.
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to 15 years to serve in total.
On August 11, 1995, appellant
entered his guilty plea in open court before Judge Daniel
Schneider of Division Six.
At that hearing, appellant entered a
knowing, intelligent and voluntary plea to all counts in the
indictment and the Commonwealth recommended fifteen (15) years
to serve.
Appellant waived separate sentencing and the court
caused to be entered its Judgment of Conviction on the same date
and sentenced appellant to a total of fifteen years
imprisonment.
On January 8, 2003, Appellant filed a motion pursuant
to CR 60.02(f)/RCr 10.26 before the trial court seeking to
compel the Commonwealth to carry out its original plea
agreement.
The Commonwealth responded to the motion and the
court denied same on March 6, 2003.
The court below held that
(1) CR 60.02 was not the proper method for appellant to seek
relief since he could have raised the issue in an earlier
proceeding, and (2) his motion for relief pursuant to CR 60.02
was not filed within a reasonable time.
The court additionally
found that appellant could not use RCr 10.26 because it was only
available in a motion for new trial or direct appeal.
appeals this order.
Appellant
We affirm because we agree that appellant’s
arguments should have been raised in an RCr 11.42 proceeding,
and that the CR 60.02 motion was not timely.
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Appellant is challenging the sentence he received and
claiming the right to enforcement of the original plea offer
rejected by the trial court.
Appellant alleges that once the
court accepted the plea agreement, it did not have the power to
thereafter require the parties to change the agreement.
Appellant correctly states that his original plea
agreement was accepted by the trial court, albeit by Judge
Jasmin rather than Judge Higgins as he assumes.
Although Judge
Higgins may have been involved during plea negotiations, it is
clear from the record that Judge Jasmin accepted appellant’s
original plea agreement in writing on July 24, 1995.
In this
case, the trial court’s written order accepting the plea
agreement was an official order that superseded any other
statements from the bench.
When an order is signed the trial
court has officially accepted the guilty plea since a court
speaks only through its records.
Allen v. Walter, Ky., 534
S.W.2d 453, 455 (1976).
Under the above authority, the written order controls,
and the plea agreement was officially accepted in this case.
Once the trial court accepts a defendant's plea, the plea
agreement becomes binding on the Commonwealth, and the defendant
is entitled to enforce it.
S.W.3d 756 (2001).
Matheny v. Commonwealth, Ky., 37
By necessary implication, if the trial judge
knows of the agreement and concurs in it the judge would not be
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permitted to repudiate it any more than would the Commonwealth's
Attorney.
Commonwealth v. Reyes, Ky., 764 S.W.2d 62, 66 (1989).
Nevertheless, we agree with the court below that
appellant needed to bring this claim in an RCr 11.42 action.2
The structure in Kentucky for attacking the final judgment of a
trial court in a criminal case is set out in the rules related
to direct appeals, in RCr 11.42 and thereafter in CR 60.02.
Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983).
The language
of RCr 11.42 forecloses the defendant from raising any questions
under CR 60.02 which are “issues that could reasonably have been
presented” by RCr 11.42 proceedings.
Id.
CR 60.02 is for
relief that is not available by direct appeal and not available
under RCr 11.42.
Id.
The movant must demonstrate why he is
entitled to this special, extraordinary relief.
Id.
Even
claims of constitutional error do not qualify for CR 60.02
relief if they could have been brought in an earlier proceeding.
Gross, 648 S.W.2d at 857.
We agree that appellant could have brought a motion
pursuant to RCr 11.42 to allege that his plea was not voluntary
because the plea agreement had changed.
It is also conceivable
that appellant could have raised this as an issue of ineffective
2
The court below and the Attorney General mistakenly asserted that appellant
could have raised this issue via direct appeal. However, appellant’s plea of
guilty waived his right to appeal his sentence and appellant had only the
ability to bring a collateral attack pursuant to RCr 11.42.
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assistance of counsel in an RCr 11.42 motion.
However,
appellant did not previously bring any post-conviction actions.
Because this issue could have been raised in an RCr 11.42
motion, we find that it is not appropriate for consideration at
this time.
Furthermore, CR 60.02 is a mechanism for grievances
not known until after rendition of the judgment.
S.W.2d at 846.
Gross, 648
The issue of acceptance of the plea agreement
was certainly known to appellant at the time of his final
sentencing in August 1995.
motion on January 28, 2003.
Appellant brought his CR 60.02
What constitutes a reasonable time
in which to move to vacate a judgment under CR 60.02 is a matter
addressed to the discretion of the trial court.
S.W.2d at 858.
Gross, 648
The trial court determined that a delay of over
seven years was an excessive amount of time before attacking a
judgment under CR 60.02, and we find no abuse of discretion in
that determination.
Finally, we affirm the trial court’s
determination that RCr 10.26 by its terms can only be used in a
motion for new trial or on direct appeal, and not as an avenue
for post-conviction relief.
For the reasons stated above, the order of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard A. Gaillard, Pro Se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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