KENNETH WAYNE STURGILL v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 2, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2003-CA-000884-MR
KENNETH WAYNE STURGILL
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
INDICTMENT NO. 96-CR-00174
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON and VANMETER, Judges.
MINTON, Judge.
the
Laurel
Kenneth Wayne Sturgill appeals from an order of
Circuit
Court
denying
his
motion
for
relief
from
judgment brought pursuant to Kentucky Rules of Civil Procedure
(CR) 60.02(f).
We affirm.
On October 24, 1996, the police were called to the
residence of Rebecca Mitchell, where they found her dead from a
gunshot wound.
acquaintances
Based on information obtained from neighbors and
of
Mitchell,
boyfriend, Kenneth Sturgill.
the
police
arrested
her
long-time
On November 15, 1996, a Laurel
County
Grand
Jury
indicted
Sturgill
on
one
felony
count
of
murder,1 one felony count of burglary in the first degree,2 and
one felony count of stalking in the second degree.3
Following
extensive negotiations, on January 16, 1998, Sturgill entered a
plea of guilty to the amended charge of manslaughter in the
first
degree
while
disturbance.4
under
Under
the
the
influence
plea
of
agreement
extreme
as
stated
emotional
by
the
prosecutor at the guilty plea hearing, the Commonwealth moved to
amend the murder charge, to dismiss the other two counts of the
indictment for burglary in the first degree and stalking in the
first degree, and recommended a sentence of eighteen years in
the penitentiary.
The written plea agreement signed by Sturgill
also
“it
stated
that
is
understood
that
under provisions of a violent offender.”
sentencing
shall
be
On February 20, 1998,
the trial court sentenced Sturgill to serve eighteen years for
manslaughter
in
the
first
degree
consistent
with
the
plea
agreement.
On August 17, 1998, Sturgill filed a motion for shock
probation and requested a hearing, arguing that he should be
exempt from the restrictions making him ineligible for shock
1
Kentucky Revised Statute (KRS) 507.020.
2
KRS 511.020.
3
KRS 508.150.
4
KRS 507.030(b)(a Class B felony).
-2-
probation under KRS 533.060(1)5 because he had been a victim of
domestic violence.
describing
his
Sturgill submitted an extensive affidavit
turbulent
relationship
with
Rebecca
Mitchell
alleging that she repeatedly beat, harassed, and stalked him to
the
point
that
he
was
afraid
affidavits
from
six
other
of
persons
her.
in
He
support
also
of
submitted
his
claims.
Sturgill maintained that Mitchell was shot accidentally in a
struggle for his gun after she had attacked him.
1998,
the
trial
court
denied
the
motion
On August 28,
without
a
hearing,
stating Sturgill should have raised the issue prior to the final
sentencing and that he had agreed to be sentenced as a violent
offender under KRS 439.3401 under the plea agreement.
On October 14, 1999, Sturgill filed a motion to vacate
his sentence pursuant to Kentucky Rules of Criminal Procedure
(RCr) 11.42 based on ineffective assistance of counsel and a
motion
for
appointment
of
counsel
5
on
the
motion.
Sturgill
This provision states as follows: (1)
When a person has been
convicted of an offense or has entered a plea of guilty to an offense
classified as a Class A, B, or C felony and the commission of the
offense involved the use of a weapon from which a shot or projectile
may be discharged that is readily capable of producing death or other
serious physical injury, the person shall not be eligible for
probation, shock probation, or conditional discharge, except when the
person establishes that the person against whom the weapon was used
had previously or was then engaged in an act or acts of domestic
violence and abuse as defined in KRS 403.720 against either the person
convicted or a family member as defined in KRS 403.720 of the person
convicted.
If the person convicted claims to be exempt from this
statute because that person was the victim of domestic violence and
abuse as defined in KRS 403.720, the trial judge shall conduct a
hearing and make findings to determine the validity of the claim and
applicability of this exemption.
The findings of the court shall be
noted in the final judgment.
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alleged
that
defense
counsel
rendered
constitutionally
ineffective assistance for failing to investigate and assert a
defense
based
on
a
claim
that
he
was
a
victim
of
domestic
violence, failing to move to suppress evidence, and failing to
acknowledge a conflict of interest.
counsel
to
represent
Sturgill
on
The trial court appointed
the
RCr
11.42
motion,
who
notified the court that after consulting with Sturgill, he would
not be filing a supplemental memorandum.
On February 16, 2000,
the
motion,
trial
court
denied
the
RCr
11.42
stating
with
reference to the claim of counsel’s failure to assert a domestic
violence defense that Sturgill had waived that claim by agreeing
to be sentenced as a violent offender.
Sturgill filed a motion
to amend the findings pursuant to CR 52.02, which the trial
court summarily denied.
an
opinion
affirming
motion.6
RCr 11.42
On August 3, 2001, this Court rendered
the
The
trial
court’s
Kentucky
denial
of
Supreme
Sturgill’s
Court
denied
discretionary review of this Court’s opinion.7
On January 3, 2003, Sturgill filed a motion pursuant
to CR 60.02(f) requesting that the judgment be amended to a
sentence of probation, rather than incarceration.
6
See
Sturgill
v.
Commonwealth,
2000-CA-000458-MR
He contended
(not
to
be
(entered
May
8,
published).
7
See
Sturgill
v.
Commonwealth,
2002).
-4-
2001-SC-0671-D
that
the
trial
court
violated
considered for probation.8
January
30,
considered
sentencing.
2003,
and
due
process
right
to
be
The trial court entered an order on
denying
declined
his
to
the
motion
grant
and
probation
stating
at
the
it
had
time
of
This appeal followed.
On appeal, Sturgill contends that he had a right to be
considered for probation under the due process clauses in the
Fifth
and
Fourteenth
Amendments
of
the
United
States
Constitution and Section 2 of the Kentucky Constitution.
In
fact,
no
it
is
well
established
constitutional right to probation.9
that
defendants
have
The grant of probation is
considered a special privilege or act of grace extended to a
defendant for his welfare and the welfare of society.10
While
probation is a function of the judicial branch,11 the legislature
has the initial power to limit or prohibit probation.12
As a
8
As grounds for a sentence of probation, Sturgill asserted that
placing
him
on
probation
would
benefit
the
public
interest
“considering that the Kentucky Department of Correction being Five (5)
million dollars in debt.”
He also quoted a passage from Shakespeare
concerning the quality of mercy.
9
See Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed.
204 (1937); United States v. Belgard, 894 F.2d 1092 (9th Cir. 1990);
King v. Commonwealth, Ky., 471 S.W.2d 297 (1971).
10
Ridley v. Commonwealth, Ky., 287 S.W.2d 156 (1956); Tiryung v.
Commonwealth, Ky.App., 717 S.W.2d 503 (1986).
11
See, e.g., Prater v. Commonwealth, Ky., 82 S.W.3d 898 (2002).
12
See Mullins v. Commonwealth, Ky.App., 956 S.W.2d 222 (1997).
-5-
result, any right Sturgill may have to probation derives from
and is defined by statutory law.13
As
Sturgill’s
an
initial
claim
is
matter,
we
procedurally
note
that
barred.
review
of
Gross
v.
In
Commonwealth,14 the Kentucky Supreme Court set out the procedure
for post-judgment review in criminal cases.
The Court stated
that
not
the
structure
overlapping.15
for
appellate
review
is
haphazard
or
It held that a criminal defendant must first
bring a direct appeal when available, then utilize RCr 11.42 by
raising
every
utilize
CR
error
60.02
of
for
which
he
should
extraordinary
be
aware,
situations
not
and
only
otherwise
subject to relief by direct appeal or by way of RCr 11.42.16
More recently in McQueen v. Commonwealth,17 the Supreme Court
reaffirmed the procedural requirements set out in Gross, when it
stated:
A defendant who is in custody under sentence
or on probation, parole or conditional
discharge is required to avail himself of
RCr 11.42 as to any ground of which he is
13
Id. See also KRS 533.010 (giving courts discretionary authority
to grant probation for defendants not sentenced to death and setting
forth factors to be considered and limitations).
14
Ky., 648 S.W.2d 853 (1983).
15
Id. at 856.
16
Id. See also Bowling v. Commonwealth, Ky., 981 S.W.2d 545, 549
(1998); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 908-09 (1998).
17
Ky., 948 S.W.2d 415, 416 (1997).
-6-
aware, or should be aware, during the period
when the remedy is available to him.
Civil
Rule 60.02 is not intended merely as an
additional opportunity to relitigate the
same issues which could “reasonably have
been
presented”
by
direct
appeal
or
RCr 11.42 proceedings.
RCr 11.42; Gross,
supra at 855.
The obvious purpose of this
principle is to prevent the relitigation of
issues which either were or could have been
litigated in a similar proceeding.18
Even though a defendant generally waives all non-jurisdictional
defenses by entering a guilty plea, Kentucky courts have held
that
some
sentencing
issues
may
be
brought
on
direct
because they are considered to be jurisdictional.19
appeal
Other courts
have recognized that a defendant may directly appeal the denial
of probation even after a plea of guilty.20
Moreover, Sturgill clearly was statutorily ineligible
for probation under KRS 533.060(1) because he entered a guilty
plea
to
manslaughter
in
the
first
degree
while
under
the
influence of extreme emotional disturbance, which is a Class B
felony,
involving
the
use
of
a
handgun.
KRS
533.060(1),
however, provides an exception for victims of domestic abuse;
and Sturgill specifically raised and sought consideration for
18
See also Land v. Commonwealth, Ky., 986 S.W.2d 440, 442 (1999);
Barnett v. Commonwealth, Ky., 979 S.W.2d 98, 101 (1998).
19
See Hughes v. Commonwealth, Ky., 875 S.W.2d 99,
Gaither v. Commonwealth, Ky., 963 S.W.2d 621, 622 (1997).
20
100
(1994);
See, e.g., Hughes, supra; Ware v. Commonwealth, Ky.App., 34
S.W.3d 383 (2000); Aviles v. Commonwealth, Ky.App., 17 S.W.3d 534
(2000); Fultz v. Commonwealth, Ky.App., 596 S.W.2d 28 (1979).
-7-
probation
under
probation.
that
exception
in
his
motion
for
shock
The trial court denied the motion, and Sturgill did
not appeal that decision.
Although KRS 439.265(2) precludes
review
shock
of
the
denial
of
probation,
in
Terhune
v.
Commonwealth,21 which involved a defendant who had pled guilty to
various felonies, the court held that a defendant could bring a
direct appeal of a denial of shock probation that concerned a
question of the trial court’s authority or jurisdiction to grant
shock probation, as opposed to a challenge on the merits.
Thus,
Sturgill could have challenged his eligibility for probation in
a direct appeal of the denial of his motion for shock probation.
Sturgill also raised the issue of his status as a victim of
domestic violence in his RCr 11.42 motion under the rubric of
ineffective assistance of counsel although he failed to link it
specifically
to
the
question
of
probation.
Consequently,
Sturgill could and should have raised the question of probation
either on direct appeal of the original judgment, or the order
denying shock probation, or in his RCr 11.42, and is precluded
from raising it under CR 60.02.
In
addition
to
the
procedural
complaint lacks substantive merit.
default,
Sturgill’s
Sturgill claims that the
trial court abused its discretion by denying his right to be
21
Ky.App., 907 S.W.2d 779 (1995).
-8-
considered for probation.
the
trial
court
Sturgill
probation,
consistent with the requirements of KRS 533.010(2).
The court
reviewed
the
did
A review of the record indicates that
consider
presentence
but
denied
report
after
giving
Sturgill
an
opportunity to challenge its contents and stated in the final
judgment that it was denying probation because (1) there was a
substantial risk that he would commit another crime during any
period
of
probation;
treatment
that
commitment
to
would
have
could
a
unduly
(2)
be
he
was
provided
correctional
in
need
correctional
effectively
most
of
by
institution;
depreciated
the
and
seriousness
(3)
of
his
probation
his
crime.
Indeed, in his CR 60.02 motion, Sturgill requested probation,
based on the fact that this was his first felony conviction, the
Department
of
Corrections
was
extend mercy to his situation.
in
debt,
and
the
court
should
These factors existed when the
trial court initially denied probation.
Even if his complaint
could be raised under CR 60.02, Sturgill has not shown that the
trial court improperly failed to consider probation, failed to
follow
the
statutory
law,
or
abused
its
discretion.
As
a
result, the trial court did not err in denying the motion.
For the foregoing reasons, we affirm the order of the
Laurel Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth Wayne Sturgill, Pro Se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
-10-
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