BRUCE (DWAYNE ANTHONY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001224-MR
DWAYNE ANTHONY BRUCE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 96-CR-000344
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND NICKELL, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Dwayne Anthony Bruce appeals from an order of the
Jefferson Circuit Court denying his motion for post-conviction relief. For the
reasons stated below, we affirm.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 1996, Bruce was indicted by a Jefferson County grand
jury on charges that he committed sex crimes against his adopted daughter between
April 1985 and November 1994. The indictment consisted of four counts of firstdegree rape, nine counts of first-degree sodomy, and one count of first-degree
criminal abuse. A jury trial was held on November 12-14, 1996, and Bruce was
found guilty of three counts of first-degree rape, six counts of first-degree sodomy,
and one count of first-degree criminal abuse. He was acquitted of one count of
first-degree rape and three counts of first-degree sodomy. The charges for which
he was convicted covered a time period from April 1985 to April 1991. He was
acquitted of all charges involving the time period from April 1991 to November
1994.
For the rape and sodomy charges in Counts 1 and 2 of the indictment,
the jury fixed Bruce’s sentences at sixty years in prison on each count. These
charges related to a period of time when the victim was less than twelve years of
age. The jury fixed Bruce’s sentences for all other rape and sodomy charges at
twenty years on each count and fixed his sentence for first-degree criminal abuse at
ten years. The trial court set the sentences pursuant to the jury’s verdict and
ordered all sentences to run consecutively as recommended by the jury. Thus,
Bruce was sentenced to a total of 270 years in prison. Bruce’s conviction and
sentence was affirmed by an opinion of the Kentucky Supreme Court rendered on
January 22, 1998. See Case No. 97-SC-0085-MR.
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Subsequent to his direct appeal, Bruce has filed multiple petitions for
post-conviction relief, including a second Kentucky Rules of Criminal Procedure
(RCr) 11.42 motion filed on April 25, 2001. We need not, however, review the
procedural history of those filings in detail. We do note, however, that Bruce filed
his first RCr 11.42 motion on January 20, 1999. The trial court denied the motion
and this Court affirmed in Case No. 2000-CA-00930-MR. By an Opinion and
Order entered February 21, 2002, the Supreme Court granted discretionary review,
reversed this Court’s decision, and remanded for further consideration in light of
recent Supreme Court decisions. Upon remand the trial court vacated one of the
twenty-year sentences, thereby reducing Bruce’s aggregate sentence from 270
years to 250 years.
On December 13, 2006, Bruce filed the present post-conviction
motion, which is captioned “Motion to Correct Aggregate Consecutive Terms of
Imprisonment and for Re-Sentencing Pursuant to KRS 532.110(1)(c).” The
motion does not identify the procedural basis for the filing, e.g., RCr 11.42 or
Kentucky Rules of Civil Procedure (CR) 60.02. The motion argues that the
aggregate sentencing rules contained in KRS 532.110(1)(c), KRS 532.080(6)(a),
and the retroactivity provisions of KRS 446.110 require that his aggregate sentence
be reduced to 50 years. On December 27, 2006, the trial court entered an order
denying the motion. This appeal followed.
The arguments presented in the present motion are indistinguishable
from those raised in the RCr 11.42 motion filed by Bruce on April 25, 2001. That
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motion raised precisely the same issues as brought in the present motion.
Following the trial court’s denial of Bruce’s 2001 motion, a Panel of this Court
affirmed, and concisely addressed the matter at hand. See Bruce v.
Commonwealth, 2001-CA-001190-MR (Jan. 25 2002). Because the opinion in that
case thoroughly addressed the issues of concern in the present appeal, and is
otherwise the law of the case, we adopt its discussion of the issues as follows:
On appeal, Bruce now claims that KRS 532.080, as
amended in 1998, should be applied retroactively to him.
We disagree. First, we believe the trial court ruled
correctly that Bruce’s present motion is a successive RCr
11.42 motion and that the sentencing issue should have
been addressed by Bruce in his prior appeals. 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.
In Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983),
the Kentucky Supreme Court established the procedure
for appellate review in criminal cases. The Court stated
that the structure for appellate review is not haphazard or
overlapping. Id. at 856. It held that a criminal defendant
must first bring a direct appeal when available, then
utilize RCr 11.42 by raising every error of which he
should be aware. Id. More recently, in McQueen v.
Commonwealth, Ky., 948 S.W.2d 415 (1997), the Court
reaffirmed the procedural requirements set out in Gross
when it said:
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 aware, or should be aware,
during the period when the remedy is available to
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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(3); Gross v. Commonwealth, supra, at 855,
856. The obvious purpose of this principle is to
prevent the relitigation of issues which either were
or could have been litigated in a similar
proceedings.
Id. at 416.
In this case, Bruce could or should have been aware of
the issue concerning his sentencing under KRS 532.080
shortly after the trial in 1996. He could have raised it in
his direct appeal or within his ineffective assistance of
counsel claim in his first RCr 11.42 motion.
Consequently, he is barred from raising this issue by way
of a second RCr 11.42 motion or in the future by way of
a CR 60.02 motion.
Furthermore, we note that even if Bruce had properly
raised this issue he would not have been successful. In
Lawson v. Commonwealth, Ky., 53 S.W.3d 534 (2001),
the Court held that one charged with a crime prior to the
effective date of the legislative changes to KRS 532.080
and 532.110 (July 15, 1998), but sentenced after the
effective date was not entitled to the benefits of the
newly enacted legislation. In the case before us, Bruce
committed the crimes and was sentenced prior to the
effective date of the legislative changes to the statutes in
question. We believe his argument that he is entitled to
the benefits of the statutory modifications is without
merit. In Lawson, the Court stated:
Lawson alleges that the trial court lacked
jurisdiction to enter judgment sentencing him
outside the statutory limits in place at the time of
trial. We recently addressed a similar issue in
Commonwealth v. Phon, [Ky., 17 S.W.3d 106
(2000)] and held that KRS 446.110 governs the
retrospective application of legislative
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amendments to punishment provisions of the
Kentucky Penal Code. KRS 446.110 reads:
No new law shall be construed to repeal a
former law as to any offense committed
against a former law, nor as to any act done,
or penalty, forfeiture or punishment
incurred, or any right accrued or claim
arising under the former law, or in any way
whatever to affect such offense or act so
committed or done, or any penalty,
forfeiture or punishment so incurred, or any
right accrued or claim arising before the new
law takes effect, except that the proceedings
thereafter shall conform, so far as
practicable, to the laws in force at the time
of such proceedings. If any penalty,
forfeiture or punishment is mitigated by any
provision of the new law, such provision
may, by the consent of the party affected, be
applied to any judgment pronounced after
the new law takes effect.
At common law, when the legislature modified or
repealed a statute, the courts no longer had the
authority to enter any judgment relying upon the
prior law. KRS 446.110 modifies this common law
rule so that, unless the General Assembly
specifically designates otherwise, “offenses
committed against the statute before its repeal,
may thereafter be prosecuted, and the penalties
incurred may be enforced.” Unquestionably,
therefore, the trial court had jurisdiction to
sentence Lawson under the pre-amendment
provisions of KRS Chapter 532. (Emphasis in
original; footnotes omitted).
Lawson, 53 S.W.3d at 550.
Bruce’s motion before the trial court was a successive
RCr 11.42 motion and had no legal basis.
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As previously noted, Bruce did not identify in his present motion the
procedural authority under which it was brought. However, as shown by the above
discussion, the present motion may not be properly brought under either RCr 11.42
or CR 60.02. Moreover, as further shown, in any event, Bruce’s argument likewise
fails upon the merits. Accordingly, the trial court properly denied his motion for
relief.
CONCLUSION
For the foregoing reasons the judgment of the Jefferson Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Dwayne Anthony Bruce, pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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