BATES (MARCUS) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 17, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 06-CR-00470
COMMONWEALTH OF KENTUCKY
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BEFORE: MOORE, NICKELL, AND STUMBO, JUDGES.
MOORE, JUDGE: Marcus Bates appeals from the Hardin Circuit Court’s order
denying his CR1 60.02 motion. After a careful review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Before the events in the present case occurred, Bates was convicted on
three felony indictments for trafficking in a controlled substance; i.e., case
Kentucky Rule of Civil Procedure.
numbers 93-CR-229, 93-CR-300, and 93-CR-301. He was sentenced to concurrent
terms of five years of imprisonment for each of those convictions. Additionally,
Bates was convicted of attempted murder and first-degree wanton endangerment in
case number 94-CR-77. He was sentenced to serve a total of sixteen years of
imprisonment for those two convictions.
In the present case, Bates was charged with possession of a handgun
by a convicted felon, tampering with physical evidence, and of being a seconddegree persistent felony offender (PFO-2nd). Bates pleaded guilty to all charges,
and he received PFO-enhanced penalties of: (1) ten years of imprisonment for the
possession of a handgun by a convicted felon conviction; and (2) five years of
imprisonment for the tampering with physical evidence conviction.
Bates thereafter filed a CR 60.02 motion in the circuit court, alleging
that pursuant to KRS2 532.080(4) his concurrent sentences for his convictions in
case numbers 93-CR-229, 93-CR-300, and 93-CR-301, and his consecutive
sentence for his conviction in case number 94-CR-77 merge and count as only one
prior felony conviction. Bates reasoned that because these combined convictions
constituted only one prior felony conviction and because that conviction was used
to support his present conviction for possession of a handgun by a convicted felon,
it could not also be used to support his PFO conviction and sentence
enhancements. Thus, Bates asserted that his PFO-2nd conviction should be
dismissed and his sentences in the present case for possession of a handgun by a
Kentucky Revised Statute.
convicted felon and tampering with physical evidence should be corrected so that
they are no longer enhanced by the PFO-2nd conviction.
The circuit court denied Bates’s CR 60.02 motion. Bates now
appeals, raising the same claims that he asserted in the circuit court in his CR 60.02
II. STANDARD OF REVIEW
On appeal, we review the denial of a CR 60.02 motion for an abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). In his
motion brought in the circuit court, Bates alleged that he was entitled to relief
under CR 60.02(e), which states as follows:
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 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[.]
Kentucky Revised Statute 532.080(2) defines PFO-2nd, to which
Bates pleaded guilty in the present case, as: “A persistent felony offender in the
second degree is a person who is more than twenty-one (21) years of age and who
stands convicted of a felony after having been convicted of one (1) previous
felony. . . .”
Bates relies upon another section of KRS 532.080 in support of his
present claim that his prior convictions count only as one prior felony conviction.
Specifically, Bates cites KRS 532.080(4) in support of this allegation, which
provides as follows:
For the purpose of determining whether a person has
two (2) or more previous felony convictions, two (2) or
more convictions of crime for which that person served
concurrent or uninterrupted consecutive terms of
imprisonment shall be deemed to be only one (1)
conviction, unless one (1) of the convictions was for an
offense committed while that person was imprisoned.
Bates’s argument is misplaced, as KRS 532.080(4) specifically
applies to instances where it is necessary to determine whether a person has had
“two (2) or more previous felony convictions,” as is necessary to determine a
defendant’s guilt on the charge of PFO-1st. Compare KRS 532.080(4), with KRS
532.080(3). Yet, Bates was not charged with PFO-1st; rather, he was charged with
PFO-2nd, which requires him to have only been convicted of one prior felony. See
KRS 532.080(2). Therefore, KRS 532.080(4) is inapplicable to Bates’s case. See
Morrow v. Commonwealth, 77 S.W.3d 558, 562 (Ky. 2002) (holding that KRS
532.080(4) concerns the determination of whether a defendant qualifies as a firstdegree persistent felony offender under KRS 532.080(3)).
Furthermore, any of Bates’s prior felony convictions in case numbers
93-CR-229, 93-CR-300, 93-CR-301, or 94-CR-77 were permitted to be used to
support his present KRS 527.040 conviction for possession of a handgun by a
convicted felon, and any of his remaining prior felony convictions could have then
been used to support his present PFO-2nd conviction and sentence enhancements.
Thus, it was not improper for Bates to be convicted of both possession of a
handgun by a convicted felon, as well as PFO-2nd.
Our analysis is supported by Eary v. Commonwealth, 659 S.W.2d 198
(Ky. 1983). Eary was convicted of possession of a handgun by a convicted felon
and of being a first-degree persistent felony offender. He contended that this
violated his right against double jeopardy. The Kentucky Supreme Court rejected
this claim, reasoning that:
Eary had been previously convicted of four felonies, viz.,
first-degree burglary, first-degree bail jumping,
storehouse breaking and possession of burglary tools.
Only the previous conviction for bail jumping was
utilized for the purpose of creating the offense of
carrying a handgun by a convicted felon. The other three
convictions were utilized subsequently at the persistent
felony stage of the trial. We find no error in this
Eary, 659 S.W.2d at 199.
Therefore, pursuant to the reasoning in Eary, because any one of
Bates’s prior felony convictions could have been used to support his possession of
a handgun by a convicted felon conviction, and any of his remaining prior felony
convictions could have then been used to support his PFO-2nd conviction, Bates’s
right against double jeopardy was not violated. Consequently, the circuit court did
not abuse its discretion when it denied Bates’s CR 60.02 motion.
Accordingly, the order of the Hardin Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marcus Bates, Pro se
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General