GRUBBS (DAVID B.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 9, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000205-MR
DAVID B. GRUBBS
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 05-CR-00186
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
CAPERTON, JUDGE: David Bubba Grubbs, aka Robert Lee Barr (Grubbs),
appeals an order of the Laurel Circuit Court denying his CR 60.02 motion to vacate
judgment. After careful review of the record, we affirm the circuit court.
Grubbs pled guilty before the Laurel Circuit Court to charges of
Fraudulent Use of Credit Card of the Value of $300.00 or more within a Six Month
Period, a Class D felony, as well as Persistent Felony Offender First Degree. Thus,
there was no trial, nor any evidence submitted.
On August 19, 2005, the grand jury of the Laurel Circuit Court
indicted Grubbs, charging him with both fraudulent use of a credit card, and with
being a persistent felony offender in the first degree. Thereafter, pursuant to a plea
agreement, Grubbs appeared before the Laurel Circuit Court on February 13, 2006,
and pled guilty to both charges. In accordance with the plea agreement, the
prosecutor recommended a sentence of imprisonment for a total of fifteen years.
On March 21, 2006, Grubbs was sentenced accordingly.
Thereafter, on both August 17, 2006, and March 27, 2007, Grubbs
filed motions requesting that the Laurel Circuit Court amend the judgment of
conviction to order his sentence of imprisonment to run concurrently with his
federal sentence. Those motions were denied by the circuit court on August 23,
2006, and April 9, 2007, respectively.
In denying Grubbs’ motion, the circuit court stated that the judgment
already reflected that Grubbs’ sentence was to run concurrently with his federal
sentence. More motions followed, including two motions for credit of time served
in federal custody, filed on April 20, 2007, and May 8, 2007, both of which were
denied. Grubbs also filed two motions, in August and September of 2007, for
orders reflecting indictment numbers of the federal charges to which he pled guilty,
as well as a motion to modify judgment on August 30, 2007. All were denied.
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Subsequently, on October 1, 2007, Grubbs filed a motion to vacate
judgment pursuant to RCr 11.42, asserting that his trial counsel was ineffective
both for failing to object to the sentence of fifteen year imprisonment under the
PFO count of the indictment, and for failing to conduct a reasonable investigation
into the facts. That motion was denied by the trial court on October 4, 2007. In so
ruling, the trial court found that any error in the arraignment order was corrected in
the Commonwealth’s plea offer. The court further found that Grubbs’ second
allegation lacked sufficient specificity to warrant relief.
On October 8, 2007, Grubbs filed a notice of appeal of the denial of
his RCr 11.42 motion, as well as a motion to reconsider and a motion to correct
judgment, which were denied by the circuit court on October 24, 2007. Grubbs
then filed an October 26, 2007, motion to correct illegal sentence, as well as
another notice of appeal of the denial of his RCr 11.42 motion on November 1,
2007. He later sought to withdraw his notice of appeal on the RCr 11.42 issue,
stating he wanted to file yet another RCr 11.42 motion instead. Grubbs’ motion to
withdraw appeal was denied by the trial court on November 26, 2007.
Grubbs then filed a November 30, 2007, motion to correct sentence
pursuant to CR 60.02(a) and (f), and a second identical motion on January 14,
2008, both of which were denied by the circuit court on January 22, 2008. It is the
January 22, 2008, Order denying his CR 60.02 motion that Grubbs now appeals to
this Court. In that motion, Grubbs’ allegations were two-fold. First, he alleged
that his trial counsel was ineffective for failing to object to the admissibility of
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copies of a judgment of conviction from federal court utilized to enhance a PFO
sentence which were “not exemplified by a judge as required for an out-of-state
document to be self-authenticating, nor were they authenticated by a witness”.
Secondly, Grubbs asserted that the records used to demonstrate his status as PFO
were not properly attested as required by KRS 422.040.
As noted, the circuit court denied the CR 60.02 motion on January 22,
2008. In denying Grubbs’ CR 60.02 motion, the circuit court found that Grubbs’
claim for relief on grounds of mistake under CR 60.02(a), namely that the federal
judgment was not properly authenticated, was barred under the one year time
limitation of CR 60.02(a). With respect to Grubbs’ claim for relief based on
“extraordinary nature” pursuant to CR 60.02(f), the circuit court found it to be
without merit as any question as to the authenticity of the federal judgment became
moot when Grubbs pled guilty to the PFO charge. Grubbs now appeals the
January 22, 2008, denial of his motion under CR 60.02(a) and (f).
We review this matter under an abuse of discretion standard, and will
only overturn the trial court’s exercise of discretion in the event of a miscarriage of
justice. Fortney v. Mahan, 302 S.W.2d 842 (Ky. 1957), and Richardson v. Bruner,
327 S.W.2d 572 (Ky. 1959). Absent a showing of abuse of discretion, the trial
court’s decision in this matter should stand. Bethlehem Minerals Co. v. Church
and Mullins Corp., 887 S.W.2d 327, 329 (Ky. 1994), Wittington v. Cunnagin, 925
S.W.2d 455 (Ky. 1996), Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky.
1996).
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Grubbs frames the sole issue on appeal as “[w]hether the indictment
on persistent felony offender first degree was illegally sought and obtained by the
Laurel Circuit Court against the appellant.” After a thorough review of the record
and applicable law, we find no error.
At the outset, we note that Grubbs was beyond his statute of
limitations to file a motion under CR 60.02(a). The record clearly reflects that
judgment was entered against Grubbs on March 21, 2006, and his motion was not
filed within one year of that date. Having so found, we therefore decline to address
any basis for appeal which would fall under the purview of that provision.
We now turn to the remaining issue on appeal, namely, whether
Grubbs has demonstrated grounds of an extraordinary nature justifying relief as
required by CR 60.02(f). To that end, Grubbs now makes an assertion slightly
different than that made in the CR 60.02 motion from which he now appeals. In
that motion, Grubbs argued that the copies of his federal convictions were not
properly authenticated or attested. In addressing this argument, we note first that
this is primarily an evidentiary issue, insofar as Grubbs is essentially asserting that
the court mistakenly admitted unauthenticated evidence. We do not believe that
such an argument would properly be categorized as “mistake” under CR 60.02(a),
even if we were to consider it under that provision, as we do not find that provision
to properly extend to evidentiary issues such as the one raised sub judice.
Nevertheless, as previously stated, we believe any such argument to be barred by
the applicable statute of limitations.
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In his brief to this court, however, Grubbs changes his argument and
does not assert that the evidence was not properly authenticated, but instead argues
that there was no evidence at all. Grubbs now alleges that the circuit court erred in
failing to request or obtain a properly certified copy of his federal records from the
appropriate federal court. Grubbs asserts that this alleged failure to obtain records
from the appropriate federal court justifies such extraordinary relief pursuant to CR
60.02(f). Again, we disagree.
First, we believe this to be an issue for direct appeal, not an issue to be
raised in a CR 60.02 motion. Our review of the record, including the motions
made by Grubbs himself, indicate that at the time of his guilty plea, Grubbs never
raised the issue he currently brings before this court, nor did he bring it before the
court in any of his prior post-conviction motions. Accordingly, we do not believe
this issue to be properly before this Court at this time.
The law in this Commonwealth is clear. An appellate court will not
consider an argument unless it has been raised before the trial court, and that court
has been given an opportunity to consider the merits of the argument. Shelton v.
Commonwealth, 992 S.W.2d 849, 852 (Ky.App. 1998). Further, as our Supreme
Court stated in Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), an
appellant “will not be permitted to feed one can of worms to the trial judge and
another to the appellate court.”
In any event, even if the issues now raised by Grubbs were properly
before this Court, we believe it critical to note that Grubbs pled guilty to the
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charges for which he was convicted, including that of persistent felony offender
first degree. Had Grubbs not pled guilty, then the matter would have gone to trial.
However, here we are considering evidence that was presented to the Grand Jury.
Hearsay evidence is admissible before a grand jury.1 The unauthenticated copy of
Grubbs’ convictions would have been sufficient for purposes of the indictment
based on RCr 5.10 which states the grand jurors shall find an indictment where
they have received what they believe to be sufficient evidence to support it, but no
indictment shall be quashed or judgment of conviction reversed on the ground that
there was not sufficient evidence before the grand jury to support the indictment.
On this basis, our courts have held that the issue of sufficiency of the evidence is to
be determined at trial. Russell v. Commonwealth, 992 S.W.2d 871 (Ky. App.
1999).
This is also the view of our United States Supreme Court, as set forth
in Bracy v. U.S., 435 U.S. 1301, 98 S.Ct. 1171 (1978):
The grand jury does not sit to determine the truth of the
charges brought against a defendant, but only to
determine whether there is probable cause to believe
them true, so as to require him to stand his trial. Because
of this limited function, we have held that an indictment
is not invalidated by the grand jury's consideration of
hearsay, Costello v. United States, 350 U.S. 359, 76 S.
Ct. 406, 100 L. Ed. 397 (1956).... While the presentation
of inadmissible evidence at trial may pose a substantial
threat to the integrity of that factfinding process, its
introduction before the grand jury poses no such threat ...
An indictment returned by a legally constituted and
1
At trial, the Commonwealth would have been required to prove the statutory elements of
persistent felony offender first degree, which would have included a properly certified copy of
Grubbs’ prior convictions as opposed to an unauthenticated copy.
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unbiased grand jury, like an information drawn by the
prosecutor, if valid on its face, is enough to call for trial
of the charge on the merits. The Fifth Amendment
requires nothing more. Costello at 409.
Ultimately, it is not the function of the circuit court to produce
evidence to substantiate the indictment nor is it the function of the court to obtain
certified records. The prosecution of the case is reserved to the Commonwealth.
Moreover, as previously noted, certified copies are not needed until trial, and in
this matter a trial never occurred because Grubbs pled guilty to the charges. In so
doing, Grubbs waived his right to be proven guilty of the charge of PFO first
degree at trial.
The law in the Commonwealth is that a plea of guilty waives all
defenses except that the indictment fails to charge a public offense. Hughes v.
Commonwealth, 875 S.W.2d 99 (Ky. 1994). Grubbs cites both Wellman v.
Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985) and Myers v. Commonwealth, 42
S.W.3d 594 (Ky. 2001) for the respective arguments that sentencing is
jurisdictional and cannot be waived, and that an unauthorized sentence is an error
correctable on appeal.
Upon review, we do not find either of these cases to be on point in the
matter sub judice. Those cases addressed situations in which the sentence itself
was not in accordance with the crime for which the defendant was convicted. In
this matter, however, by pleading guilty, Grubbs admitted to the elements
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necessary for a conviction of PFO first degree. The sentence he received is
commensurate with the plea, and with applicable law.
Grubbs pled guilty to counts of Fraudulent Use of Credit Card of the
Value of $300.00 or More within a Six Month Period, a Class D felony, as well as
Persistent Felony Offender First Degree. Thereafter, he was sentenced to fifteen
years in prison. Accordingly, our statutes clearly provide that if one stands
convicted of a Class D felony, as a persistent felony offender in the first degree,
they may be sentenced to an indeterminate term of imprisonment, the maximum of
which shall not be less than ten years, nor more than twenty years. KRS
532.080(6)(b). The sentence that Grubbs received was within the provisions of the
law, and we decline to find otherwise on appeal.
Even if we chose to disregard the waivers made by Grubbs when
entering his guilty plea, we note that his appeal is duplicitous, in light of his four
previous post-conviction relief motions. As previously noted, Grubbs filed his
11.42 motion, one of several post-conviction motions, on October 1, 2007. The
language of RCr 11.42 clearly mandates that the motion shall state all grounds for
holding the sentence invalid, of which the movant has knowledge, and that final
disposition of the motion shall conclude all issues that could reasonably have been
presented in the same proceeding. Thus, our courts have repeatedly held that the
language of RCr 11.42 forecloses a defendant from raising any questions under CR
60.02 which are “issues that could reasonably have been presented” in the RCr
11.42 proceedings. Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983).
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CR 60.02 is available to raise issues which cannot be raised in other proceedings,
not to relitigate issues which could reasonably have been presented by either direct
appeal or CR 11.42 proceedings. McQueen v. Commonwealth, 948 S.W.2d 415,
426 (Ky. 1997).
In the matter sub judice, Grubbs not only filed an RCr 11.42 motion,
but also filed a motion to amend judgment, a motion to correct illegal sentence, as
well as the CR 60.02 motion presently considered on appeal. As we noted in
Gross, supra:
The structure provided in Kentucky for attacking the
final judgment of a trial court in a criminal case is not
haphazard and overlapping, but is organized and
complete. That structure is set out in the rules related to
direct appeals, in RCr 11.42, and thereafter, in CR 60.02.
CR 60.02 is not intended merely as an additional
opportunity to raise Boykin defenses. It is for relief that
is not available by direct appeal and is not available
under RCr 11.42. The movant must demonstrate why he
is entitled to this special extraordinary relief. Before the
movant is entitled to an evidentiary hearing, he must
affirmatively allege facts which, if true, justify vacating
the judgment and further allege special circumstances
that justify CR 60.02 relief.
In reviewing the record, we find that each of the issues which Grubbs
raised in his CR 60.02 motion, namely that his trial counsel rendered ineffective
assistance at sentencing, and that the evidence pertaining to his federal convictions
was not properly authenticated, were issues that could have been raised and in
many respects were raised, in his first post-conviction RCr 11.42 motion.
Therefore, we do not believe these issues are properly before this court on appeal.
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After a thorough review, we do not believe that Grubbs has met his
burden of proof in establishing that his claims on appeal justify “relief of an
extraordinary nature” as required by CR 60.02 (f), nor that the trial court abused its
discretion in denying his motion. Accordingly, we affirm the decision of the trial
court, the Honorable Roderick Messer, Judge, presiding.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David B. Grubbs, Pro Se
Central City, Kentucky
Jack Conway
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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