Opinion
NO. 2017-CA-000212-MR
05-04-2018
CHARLES MOSS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Charles Moss, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE C. A. WOODALL, III, JUDGE
ACTION NO 01-CR-00066 OPINION AND ORDER
AFFIRMING AND DISMISSING
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BEFORE: CLAYTON, JOHNSON, AND NICKELL, JUDGES. NICKELL, JUDGE: Charles Moss ("Moss") brings this pro se appeal from an order of the Ballard Circuit Court denying his second request for modification of a sentence imposed in 2002 following entry of a guilty plea. After careful review of the record and applicable law, we affirm.
On September 21, 2001, a Ballard County grand jury indicted Moss on three counts of Use of a Minor in a Sexual Performance; one count of First-Degree Unlawful Transaction with a Minor under Age 16; three counts of First-Degree Sexual Abuse; and, two counts of First-Degree Criminal Abuse. All charges stemmed from events occurring in June, July, and August of 2001, while three children were in his care. Moss pled guilty to all charges and was sentenced to fifty-years' imprisonment by judgment entered June 7, 2002.
Kentucky Revised Statutes (KRS) 531.310, a Class B felony.
KRS 530.064, a Class B felony.
KRS 510.110, a Class D felony.
KRS 508.100, a Class C felony.
Since that time, Moss has filed numerous post-conviction motions. Among them, a motion for shock probation, an RCr 11.42 motion asserting ineffective assistance of counsel which he litigated unsuccessfully through appeal in this Court, three CR 60.02 motions, a petition for writ of mandamus dismissed by this Court for failure to comply with an administrative order, a motion to reconsider shock probation, and a motion to correct his presentence investigation (PSI) report.
Kentucky Rules of Criminal Procedure.
Moss v. Commonwealth, 2006-CA-002096-MR, 2008 WL 344199 (Ky. App. Feb. 8, 2008).
Kentucky Rules of Civil Procedure.
His most recently concluded case in this Court resulted in an Opinion affirming denial of his third CR 60.02 motion. Moss v. Commonwealth, 2014-CA-001941-MR, 2016 WL 4709190 (Ky. App. Sept. 9, 2016). That Opinion ended with what most would interpret as a stinging rebuke:
Moss has enthusiastically litigated his case for the past fourteen years. He has bombarded the circuit court with post-conviction motions. None of those motions has been found to have merit. Yet, the circuit court's denials have not daunted Moss; he repackages the previously rejected arguments and files a new motion. Time and again, Moss has raised issue after issue, including some of the issues contained in the motion underlying this appeal. Additionally, none of the facts included in Moss's most recent motion are new. Moss could have, and did, litigate these issues years ago. Moss is out of bites; he has eaten his apple down to the core.Id. at *1-2. Before that Opinion was rendered, Moss had already filed another attack in the trial court, this one a "fill in the blanks" motion for modification of sentence urging the trial court "pursuant to KRS 532.110, to run his sentences concurrent with each other for a total of OPEN years. . . ." The motion's boilerplate language states the trial court has discretion to do as requested. More boilerplate language reads:
THEREFORE, the Defendant praises (sic) that this Honorable Court will take into consideration the
following Affidavit and give consideration that this Court's determination that the Defendant does not have any prior record and would like to try to be (sic) productive member of his community.Previously, on December 3, 2009, Moss had also moved for sentence modification. That motion, using a different form, was based on KRS 532.110 and cited equitable grounds including his age and desire to spend time with family. The Commonwealth responded to the motion stating the trial court had lost jurisdiction of the matter within days of imposing sentence. By using a form motion with boilerplate language, the motion was not personalized to Moss and gave no indication of why his plight deserved still more review and his sentence should be shortened. The motion referenced "the following affidavit," but no affidavit was attached.
The Defendant will also agree to enter any treatment program that this Honorable Court deems fit.
In his brief to this Court, Moss alleges he is serving an illegal sentence and his "last-minute stand-in public defender . . . never reviewed the PSI report and never discussed any proposed arguments or changes to the PSI report that could be made as a minimum sentence of ten to twenty years, because of appellant's long history of mental health illnesses." These issues were not raised in the motion for modification of sentence which is being appealed. Not being raised below, these issues are beyond our review and will not be discussed further. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010).
Motion to alter, amend or vacate must be filed within ten days of entry of judgment. CR 59.05. --------
The modification motion was denied by order entered January 4, 2016, with the trial court stating:
[t]he Court believes Mr. Moss has had ample opportunity for this Circuit Court to address his concerns and motions. The undersigned believes that this Court does not have jurisdiction to entertain a "Motion for Modification of Sentence" more than thirteen years after the entry of the guilty plea.Moss appeals from the foregoing order.
The Commonwealth's brief details the long and protracted history of failed attempts by Moss to free himself of the sentence imposed on his 2002 guilty plea. The Commonwealth urges us to interpret the motion for modification of sentence as a fourth CR 60.02 motion and to impose sanctions to thwart future abuse of the courts.
The Commonwealth's point is well taken; requests for sentence modification are often filed pursuant to CR 60.02(e) and (f). While not styled as a CR 60.02 motion, in his brief, Moss states, "[b]ecause Appellant filed a CR 60.02(f) collateral attack to challenge the unlawful sentence[. . . .]" In light of the Commonwealth's request and the admission by Moss, we deem the current motion for modification to be at least the fourth CR 60.02 motion filed by Moss.
[W]e will not consider successive motions to vacate a conviction when those motions recite grounds for relief that have been or should have been raised earlier. Butler v. Commonwealth, 473 S.W.2d 108, 109 (Ky. 1971). "The courts have much more to do than occupy themselves with successive 'reruns' of RCr 11.42 motions stating grounds that have or should have been presented earlier." Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970) (citing Kennedy v. Commonwealth, 451 S.W.2d 158, 159 (Ky. 1970)).Cardwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011). During the pendency of the current appeal, on January 26, 2017, Moss filed his fifth CR 60.02 motion in the trial court.
By acting pro se, Moss is governed by different standards than litigants represented by attorneys. Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983). However, we will not extend boundless leeway to him. This Court explicitly told Moss he had reached the end of the road in attacking his 2002 sentence in an Opinion dated September 9, 2016. Moss, 2016 WL 4709190 at *2. He ignored that warning and continues filing repetitive pleadings. The trial court properly denied the motion for modification of sentence.
For the foregoing reasons, we ORDER Appeal No. 2017-CA-000212-MR DISMISSED as frivolous. Furthermore, the United States Supreme Court has explained every paper filed in court exhausts court resources. To best utilize its resources, where a pro se litigant files repetitious and frivolous claims, a court may bar prospective filings to prevent the deleterious effect of such filings on scarce judicial resources. In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 996, 103 L.Ed.2d 158 (1989); see also Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998). Therefore, we direct the circuit court to deny all future requests for in forma pauperis status filed by Moss should he attempt to pursue subsequent collateral attacks on this sentence.
ALL CONCUR. DATE: May 4, 2018
/s/ C. Shea Nickell
JUDGE, KENTUCKY COURT OF APPEALS BRIEFS FOR APPELLANT: Charles Moss, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky