JONATHAN LEE CUNNINGHAM v. COMMONWEALTH OF KENTUCKY

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IMPOR1"ANTNOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCED URE PR OMUL GA TED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS A UTHORITY INANY OTHER CASE INANY CO UR T OF THIS STATE. RENDERED : SEPTEMBER 18, 2003 NOT TO BE PUBLISHED 9f1auxf of ~Mtf 2002-SC-0760-TG APPELLANT JONATHAN LEE CUNNINGHAM V. APPEAL FROM BOURBON CIRCUIT COURT HONORABLE PAUL F. ISAACS, JUDGE 99-CR-00023 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING This appeal is from a judgment based on a jury verdict, which convicted Cunningham of first-degree trafficking in a controlled substance and being a seconddegree persistent felony offender . He was sentenced to a total of twenty years in prison . The sole question presented by Cunningham is whether reversible error occurred when the trial judge allegedly failed to grant a hearing or relief pursuant to his pro se motion to dismiss and motion for default judgment. On June 8, 1999, the grand jury indicted Cunningham for first-degree trafficking in a controlled substance and for being a second-degree persistent felony offender . The charges stemmed from a controlled drug buy made by a confidential informant . On March 7, 2001, Cunningham filed a pro se motion for dismissal of action . Citing CR 77 .02, he moved for dismissal on the ground of failure to prosecute. On April 4, 2001, Cunningham filed a pro se motion for default judgment. Within the notice portion of that motion, he stated that the foregoing "shall be Heard with the Defendant Present in Open Court . . ." The trial judge held a hearing on the said motions on April 10, 2001 . Noting that the defendant cited several civil rules that did not apply, the trial judge overruled both motions . Cunningham was tried on May 21, 2001 . The jury convicted him of first-degree trafficking in a controlled substance and being a second-degree persistent felony offender . He was sentenced to ten years in prison for the trafficking charge, which was enhanced to twenty years because of the PFO charge . Upon transfer from the Court of Appeals, this appeal followed . Cunningham argues that reversible error occurred when the trial judge failed to grant a hearing or relief pursuant to his pro se motion to dismiss and motion for default judgment . He contends that citation to the rules of civil procedure does not defeat the motions and that his presence at the hearing was required by law. The issue raised by Cunningham is totally without merit. Preliminarily, we question whether Cunningham was entitled to a hearing or even a ruling on his pro se motions . At that time, Cunningham was represented by counsel and never made an unequivocal request to proceed pro se or an unequivocal request to limit the role of counsel . Faretta v. California , 422 U .S . 806, 95 S.Ct. 2525, 45 L.Ed .2d 562 (1975); Moore v. Commonwealth , Ky., 634 S .W .2d 426 (1982). Nevertheless, the trial judge held a hearing and, although Cunningham was not present, he was represented by counsel . Cunningham's presence was not required because this was not a critical stage of his trial . See RCr 8 .28(1) . In any event, it is not reversible error to conduct legal arguments between court and counsel outside the presence of the defendant. Tamme v. Commonwealth , Ky., 973 S.W .2d 13 (1998). Cunningham was in no way prejudiced . Even if we interpret the March 7, 2001 pro se motion for dismissal of action as a motion for a speedy trial, Cunningham was tried within 180 days of that motion . See KRS 500.110 . Accordingly, he is not entitled to any relief on that ground . We fully recognize that the rules of civil procedure are applicable in criminal proceedings to the extent they are not superseded by or inconsistent with the criminal rules. RCr 13.04. The motion for a default judgment, however, was precluded by CR 55 .04 . The trial judge did not err in overruling the two pro se motions . Cunningham was not denied any of his Federal or State constitutional rights . Therefore, the judgment of conviction is affirmed . All concur. COUNSEL FOR APPELLANT : COUNSEL FOR APPELLEE : Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy Suite 302, 100 Fair Oaks Lane Frankfort, KY 40601 A. B. Chandler III Attorney General of Kentucky Brian T. Judy Assistant Attorney General Criminal Appellate Division Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601-8204

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