ENOCH MARTIN v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 6, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000622-MR
ENOCH MARTIN
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 02-CR-00353
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; GUIDUGLI, JUDGE; MILLER, SENIOR
MILLER, SENIOR JUDGE:
Enoch Martin (Martin), pro se, brings
this appeal from an Order of the Campbell Circuit Court, entered
February 27, 2004, summarily overruling his motion, made
pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e) and
(f),2 to set aside a "Judgment and Sentence on a Plea of Guilty,"
1
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
Kentucky Revised Statutes 21.580.
2
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
entered December 18, 2002, adjudging him guilty of first-degree
assault3 and first-degree burglary,4 sentencing him to concurrent
terms of fifteen-years and ten-years, and finding that Martin is
not eligible for parole until after serving 85% of his sentence
due to the victim's suffering a serious physical injury.
Before
us, Martin argues that his convictions for first-degree assault
and first-degree burglary are in violation of the double
jeopardy provisions of both the federal and state constitutions.5
We affirm.
On August 8, 2002, the Campbell County Grand Jury
returned Indictment No. 02-CR-00353 against Martin for the
offenses of first-degree assault and first-degree burglary.
Specifically, they charged that on April 16, 2002, Martin
"knowingly and unlawfully entered a building with the intent to
commit an assault and caused physical injury to Kimberly Powell,
who was not a participant in the crime" and "intentionally beat
Kimberly Powell with a long, solid cylindrical object and
inflicted serious physical injury."
Several days before 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.
3
Kentucky Revised Statutes 508.010, a class B felony, carrying a penalty of
ten to twenty years in the penitentiary.
4
Kentucky Revised Statutes 511.020, a class B felony, carrying a penalty of
ten to twenty years in the penitentiary.
5
U.S. CONST. amend. V; KY CONST., ยง 13.
-2-
trial, Martin, with the advice of counsel, accepted the
Commonwealth's offer of concurrent fifteen-year and ten-year
sentences in exchange for a plea of guilty to the indicted
charges.
In accepting the plea, the circuit court conducted a
colloquy pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969).
On December 18, 2002, Martin was
sentenced in accordance with the plea.
On February 24, 2004, Martin, pro se, filed a CR 60.02
motion which is the subject of this appeal.
As the basis for
this motion, Martin asked the circuit court to set aside the
judgment under CR 60.02(e) and (f), arguing that his convictions
and sentences for both first-degree assault and first-degree
burglary violated both federal and state double jeopardy
provisions.
More specifically, he argued that double jeopardy
was violated as the same physical injury was used as an element
in both charges.
On February 27, 2004, the circuit court's
Order was entered which summarily overruled Martin's motion.
This appeal follows.
The Kentucky Supreme Court has held that convictions
for first-degree assault and first-degree burglary are not
violations of federal or state double jeopardy provisions as
each statutory offense requires proof of a fact which the other
does not.
Polk v. Commonwealth, 679 S.W.2d 231, 233-34 (Ky.
-3-
1984).
As such, Martin's convictions for both do not violate
either federal or state double jeopardy provisions.
For the foregoing reason, the Order of the Campbell
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Enoch Martin, pro se
Burgin, Kentucky
Gregory D. Stumbo
Kentucky Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
-4-
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