AND LESTER WAGNER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 13, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
2004-CA-000074-MR
AND
2004-CA-000075-MR
LESTER WAGNER
v.
APPELLANT
APPEALS FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NOS. 01-CR-00129, 01-CR-00130 AND
02-CR-00021
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
These two appeals are from orders denying
appellant’s third CR 60.02 motion and his second RCr 11.42
motion.
We adjudge that the trial court properly denied the CR
60.02 motion because the allegation contained in the motion
(unlawful search) could not be properly raised via a CR 60.02
motion.
The second RCr 11.42 motion was properly denied because
all of the issues raised could have and should have been raised
in the first RCr 11.42 motion.
Hence, we affirm.
On February 10, 2001, appellant, Lester Wagner, was
arrested for rape in the second degree and sodomy in the second
degree, based upon sexual acts he committed with a thirteenyear-old girl on February 9, 2001.
Wagner was also charged with
possession of marijuana and felony possession of drug
paraphernalia at the time of his arrest.
Wagner was ultimately
indicted on the above charges in Indictment No. 01-CR-130.
On April 27, 2001, Wagner was arrested for driving
while his license was suspended for a DUI conviction.
During a
search incident to the arrest, marijuana and drug paraphernalia
were found in Wagner’s possession.
Pursuant to that arrest,
Wagner was indicted in Indictment No. 01-CR-129 for driving on a
license suspended for DUI, felony possession of drug
paraphernalia, and possession of marijuana.
On September 13, 2001, Wagner was arrested for
possession of controlled substances, possession of drug
paraphernalia, and possession of marijuana.
Wagner was
ultimately indicted on three counts of possession of a
controlled substance in the second degree (second offense),
possession of marijuana, and felony possession of drug
paraphernalia in Indictment No. 02-CR-21.
Pursuant to a plea agreement, Wagner entered a guilty
plea on February 14, 2002, encompassing all the charges in the
three indictments.
As to Indictment No. 01-CR-129, Wagner
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received five years for felony possession of drug paraphernalia,
twelve months for possession of marijuana, and ninety days for
driving on a license suspended for DUI, the sentences to run
concurrently with each other and to the sentences in Indictment
No. 01-CR-130, and consecutive to the sentences in Indictment
No. 02-CR-21.
As to Indictment No. 01-CR-130, Wagner was sentenced
to five years for rape in the second degree and five years for
sodomy in the second degree, to be served concurrently with each
other and with the sentences in Indictment No. 01-CR-129, and
consecutive to the sentences in Indictment No. 02-CR-21.
The
possession of marijuana and felony possession of drug
paraphernalia charges were dismissed.
Relative to Indictment No. 02-CR-21, Wagner received
two years each for the three counts of possession of a
controlled substance, to be served concurrently with each other
and consecutive to the sentences in Indictment Nos. 01-CR-129
and 01-CR-130.
The possession of marijuana and felony
possession of drug paraphernalia charges were dismissed.
On April 26, 2002, the trial court entered the final
judgments and sentences in all three indictments.
In accordance
with the plea agreement, Wagner was sentenced to a total of
seven years on all of the offenses.
from any of the judgments.
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No direct appeal was filed
Wagner filed a CR 60.02 motion on January 6, 2003,
claiming that he was not aware of the sex offender treatment
program requirement for parole eligibility at the time he pled
guilty, so the court should have run all of his sentences
concurrently.
The court denied the motion on February 11, 2003,
and Wagner did not appeal the ruling.
Wagner filed a second CR 60.02 motion on March 14,
2003, alleging that he was denied due process because the trial
court did not consider probation in his sentencing.
On March
18, 2003, the court denied the motion, pointing out that each
judgment indicated that the court had considered probation and
gave the reasons why imprisonment was warranted.
On May 15, 2003, Wagner filed an RCr 11.42 motion
alleging that his counsel was ineffective for allowing him to
plead guilty to the controlled substance charges when the nature
of two of the three substances was unknown, and for failing to
raise the defense that one of the controlled substances belonged
to Wagner’s father.
The court denied the motion, noting that
the indictments identified each of the three controlled
substances and that his plea was entered knowingly, voluntarily,
and intelligently.
Wagner appealed the denials of both his
second CR 60.02 motion and the RCr 11.42 motion.
In a single
opinion, this Court affirmed the denial of both motions,
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specifically noting that the CR 60.02 motion raised an issue
that could have been brought on direct appeal.
On August 5, 2003, Wagner filed a third CR 60.02
motion alleging that the controlled substance charges in
Indictment No. 02-CR-21 were the result of an unlawful search of
his father’s home.
The court denied the motion on August 14,
2003.
Wagner filed a second RCr 11.42 motion on October 29,
2003, alleging that his attorney on the guilty plea in
Indictment No. 01-CR-130 was ineffective because:
he misadvised
him regarding his parole eligibility as a sex offender; he
failed to inform him of the possibility that he could be
convicted by a jury of lesser offenses; he failed to obtain a
DNA expert; and he did not investigate a mental health defense.
Wagner now appeals the denial of that motion and the denial of
his third CR 60.02 motion.
We shall first address the appeal of the denial of the
CR 60.02 motion alleging that the controlled substance charges
in Indictment No. 02-CR-21 stemmed from an unlawful search of
his father’s home.
A guilty plea waives all defenses except
that the indictment charged no offense.
702 S.W.2d 46 (Ky. 1986).
Bush v. Commonwealth,
Thus, unless Wagner entered a
conditional guilty plea, which he did not, any issue regarding
the search could not be appealed.
-5-
See RCr 8.09.
Even then, it
should have been raised on direct appeal.
relief available by direct appeal.
S.W.2d 853 (Ky. 1983).
CR 60.02 is not for
Gross v. Commonwealth, 648
The issue regarding the allegedly
unlawful search would have been known to Wagner at the time of
his plea and during the time period for his direct appeal.
There was no allegation of newly discovered evidence, mistake,
fraud, perjury or any of the grounds set forth in CR 60.02.
Accordingly, the claim of error is not properly before us in a
CR 60.02 motion.
We now turn to the appeal of the denial of Wagner’s
second RCr 11.42 motion alleging ineffective assistance of
counsel.
RCr 11.42(3) states:
The motion shall state all grounds for
holding the sentence invalid of which the
movant has knowledge. Final disposition of
the motion shall conclude all issues that
could reasonably have been presented in the
same proceeding.
All of Wagner’s claims of ineffective assistance of
counsel in his second RCr 11.42 motion either were known or
should have been known to Wagner at the time of his first RCr
11.42 motion.
In fact, Wagner raised the issue of his counsel’s
ineffectiveness for failing to advise him regarding the sex
offender treatment program in his first CR 60.02 motion.
Accordingly, the claims of error cannot now be raised in a
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successive RCr 11.42 motion.
Case v. Commonwealth, 467 S.W.2d
367 (Ky. 1971).
For the reasons stated above, the orders of the Bell
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lester Wagner, pro se
Eddyville, Kentucky
Gregory D. Stumbo
Attorney General
James Havey
Assistant Attorney General
Frankfort, Kentucky
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