Opinion
NO. 2012-CA-001010-MR NO. 2012-CA-002020-MR
05-16-2014
DAVID NICHOLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: David Nichols, Pro se West Liberty, Kentucky Margaret Ivie Frankfort, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DAN KELLY, JUDGE
ACTION NOS. 00-CR-00095 AND 00-CR-00105
OPINION
AFFIRMING
BEFORE: LAMBERT, TAYLOR, AND VANMETER, JUDGES. VANMETER, JUDGE: David Nichols appeals from the Marion Circuit Court's order denying his motion for CR 60.02 post conviction relief, as well as from the court's subsequent order denying his pro se motion for a ruling pursuant to SCR 1:030(3). For the following reasons, we affirm both orders.
Kentucky Rules of Civil Procedure.
Supreme Court Rules.
In 2002, following a jury trial, Nichols was convicted of wanton murder, assault under extreme emotional disturbance ("EED"), and of being a second-degree persistent felony offender ("PFO2"). In accordance with the jury's recommendation, the trial court sentenced Nichols to life in prison for the wanton murder conviction, and ten years in prison for the assault conviction, to run concurrently. On direct appeal, the Kentucky Supreme Court reversed the assault conviction, but upheld the wanton murder conviction. Nichols v. Commonwealth, 142 S.W.3d 683 (Ky. 2004). On remand, the trial court dismissed the assault conviction, on the Commonwealth's motion.
In 2005, Nichols filed a pro se motion for RCr 11.42 relief. Subsequently, through counsel, Nichols filed a supplemental memorandum to his motion, seeking RCr 11.42 relief and, in the alternative, relief under CR 60.02(e) and (f). The trial court held an evidentiary hearing and thereafter denied Nichols' motion. On appeal, this court affirmed. Nichols v. Commonwealth, No. 2006-CA-002650-MR (Ky. App., May 16, 2008).
Kentucky Rules of Criminal Procedure.
In March 2012, Nichols filed a pro se motion to vacate his judgment pursuant to CR 60.02(e) and (f), claiming, in pertinent part, that the judgment was void as a matter of law because it contained an illegal sentence. By order entered May 7, 2012, the trial court denied Nichols' motion on grounds that the motion was successive, time-barred, and without merit. On May 22, 2012, Nichols filed another pro se motion to vacate the judgment pursuant to RCr 11.42, alleging ineffective assistance of appellate counsel ("IAAC"). On June 4, 2012, Nichols filed a notice of appeal from the court's order denying his CR 60.02 motion, No. 2012-CA-001010. On October 9, 2012, Nichols filed a motion for ruling pursuant to SCR 1:030(3), claiming the trial court failed to rule on his RCr 11.42 motion alleging IAAC. The trial court denied his motion, finding no evidence of flaws in the trial proceedings for which appellate counsel neglected to seek relief. Nichols also appeals from that order, No. 2012-CA-002020. Nichols' appeals have been consolidated for purposes of review.
The trial court apparently did not rule on that motion.
No. 2012-CA-001010
Nichols first appeals from the trial court's order denying his motion for CR 60.02(e) and (f) relief. On appeal, he contends he is serving an illegal sentence because his judgment is void as a matter of law. We disagree.
CR 60.02(e) provides an avenue by which a party may move the court to relieve it from a judgment, order, or proceeding on the basis that the judgment is void. A trial court's denial of a motion for CR. 60.02 relief is reviewed for an abuse of discretion. An abuse of discretion occurs if the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.Soileau v. Bowman, 382 S.W.3d 888, 890 (Ky. App. 2012) (internal citations and quotations omitted). Further, CR 60.02(f) permits relief from judgment for "any other reason of an extraordinary nature justifying relief." A motion pursuant to CR 60.02(f) must also be made within a reasonable time.
. . . CR 60.02 provides [t]he motion shall be made within a reasonable time[.] While trial courts are afforded discretion to address what constitutes a reasonable time
under CR 60.02, the law is clear that void judgments are not entitled to any respect or deference by the courts. Despite a court's discretion to determine a reasonable time period to file a CR 60.02 motion, [a] void judgment is a legal nullity, and a court has no discretion in determining whether it should be set aside.
Procedurally,
[t]he 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 for relief that is not available by direct appeal and 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.Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
A judgment is considered void if "the trial court lacked jurisdiction of the subject matter or the parties or entered a judgment that was not within the powers granted to it by law." 7 Kurt A. Phillips, Jr., Kentucky Practice, CR 60.02 (6th ed. 2005). See also Baze v. Commonwealth, 276 S.W.3d 761, 767 (Ky. 2008). Issues relating to the legality of an imposed sentence may be reviewed by an appellate court, whether or not the sentencing issue was preserved in the trial court. Jones v. Commonwealth, 382 S.W.3d 22, 27 (Ky. 2011). In other words,
the phrase "sentencing is jurisdictional" is not a reference to the trial court's jurisdiction or the lack thereof. Rather, it is a reference to the appellate court's inherent jurisdiction to correct an illegal sentence. . . . the imposition of an unauthorized sentence is an error correctable by appeal, by writ, or by motion pursuant to RCr 11.42 or CR 60.02.
Id.
Here, Nichols alleges a procedural deficiency in the jury instructions, which he claims resulted in the imposition of an illegal sentence. He maintains that a defect in the sentencing instructions allowed the jury to fix a sentence for the PFO conviction without first fixing a sentence for the underlying wanton murder conviction.
This claim of error pertains only to the wanton murder conviction since Nichols' assault conviction was dismissed.
Nichols is correct that the penalty phase was a combined sentencing/PFO enhancement proceeding. The sentencing instructions read, in relevant part, as follows:
If you find the Defendant not guilty of being a Persistent Felony Offender, you shall fix the Defendant's punishment for the offense of Wanton Murder at confinement in the penitentiary for a period of not less than 20 year(s) nor more than 50 year(s) or life, in your discretion.
If you find the Defendant guilty of being a Second Degree Persistent Felony Offender, you shall so state in your verdict and fix his punishment for the offense of Wanton Murder at confinement in the penitentiary for a
period of not less than 20 year(s) nor more than 50 year(s) or life, in your discretion.
The jury returned a verdict finding Nichols guilty of being a PFO2 and recommended a life sentence, which the trial court imposed.
Nichols argues the failure to require the jury to first set a sentence for the underlying offense of wanton murder violates mandatory language in the PFO statute, KRS 532.080, which states that the sentence for PFO shall be in lieu of the sentence for the principal offense. In support, Nichols directs us to Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985), a case in which the final judgment provided for consecutive sentences of life imprisonment on each count of a murder/PFO conviction, contrary to KRS 532.080(1). In Wellman, the Kentucky Supreme Court affirmed the conviction, but remanded with instructions to correct the final judgment to reflect a single life sentence. Id. The defendant in Wellman failed to object to the sentencing instructions in the trial court, yet the Supreme Court nevertheless reviewed the issue since sentencing is jurisdictional and cannot be waived by a failure to object. Id.
Kentucky Revised Statutes.
Likewise, here, neither party cites to the record showing Nichols objected to the sentencing instructions. Regardless, we have jurisdiction to address the "sentencing issue," whether or not preserved in the trial court. See Jones, 382 S.W.3d at 27-28 (when nothing is required to preserve a "sentencing issue" for appellate review, the palpable error standard of review under RCr 10.26 is superfluous and not applicable).
Nothing in the record suggests that Nichols' sentence was enhanced by his PFO conviction, or that the failure to follow the procedure of requiring the jury to first set a sentence for the underlying offense resulted in the jury imposing a longer sentence than the law allows. Unlike the defendant in Wellman, Nichols was not sentenced to consecutive sentences of life imprisonment on each conviction of murder and PFO2. Rather, the jury found Nichols guilty of wanton murder and PFO2 and sentenced him to life imprisonment, which was a possible sentence for wanton murder alone, irrespective of whether Nichols was convicted of PFO2. As a result, Nichols has failed to show how the procedural deficiency in the instructions resulted in a longer sentence than the law allows, thereby rendering his sentence void. See Montgomery v. Commonwealth, 819 S.W.2d 713, 721 (Ky. 1991) (holding that jury's failure to set a penalty for the underlying offense of second-degree escape before fixing a penalty under PFO status did not violate the provisions of the PFO statute since nothing in the record indicated that the failure to follow procedure resulted in a longer sentence than the law allowed).
Nichols maintains that a murder conviction may not be enhanced based upon a PFO conviction, citing in support Offutt v. Commonwealth, 799 S.W.2d 815, 816 (Ky. 1990). The Offutt court held, in relevant part, that a conviction of a capital offense (murder) may establish PFO status but enlargement of the sentence based on PFO status is not authorized. Nichols' case is distinguishable from Offutt in that Nichols has failed to show that his PFO conviction enlarged his sentence for wanton murder.
No. 2012-CA-002020
Nichols also appeals from the trial court's order denying his pro se motion for a ruling pursuant to SCR 1:030(3). In that motion, Nichols stated that the trial court failed to rule on his RCr 11.42 motion which alleged his appellate counsel rendered ineffective assistance on direct appeal. We find Nichols' motion to be procedurally improper and therefore affirm the trial court's order.
SCR 1:030(3) states: "(3) Powers of the Court The Court of Appeals may administer oaths, punish contempts, and issue necessary orders to give control over lower courts. Proceedings in the nature of mandamus or prohibition against a circuit judge shall originate in the Court of Appeals. Final decisions of the Workers' Compensation Board are subject to review by the Court of Appeals in accordance with the procedures set out in the Rules of Civil Procedure." We find this Rule irrelevant to the case at hand.
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A claim of IAAC may be pursued by motion in the trial court of conviction under RCr 11.42. Hollon v. Commonwealth, 334 S.W.3d 431, 439 (Ky. 2010). The Hollon court clarified:
Our ruling is to have prospective effect only. It applies to this case, to cases pending on appeal in which the issue has been raised and preserved, and to cases currently in or hereafter brought in the trial court in which the issue is raised. Prospective application is appropriate because, although our courts have not until now provided a forum for IAAC claims based on an allegedly inadequate appellate brief, the federal courts have provided a forum through habeas corpus review. Kentucky defendants have not, therefore, been denied an opportunity to vindicate their right to effective appellate counsel, and there is thus no need for our decision today to reach back and operate retroactively.Id. (internal citation omitted).
Nichols' motion for RCr 11.42 relief based on alleged IAAC fails for two reasons. First, an IAAC claim made pursuant to RCr 11.42 was not a cognizable claim in 2005, when Nichols filed his first motion for RCr 11.42 relief. Second, even if an IAAC claim was recognizable at that time, Nichols should have raised the issue in his first motion for RCr 11.42 relief, and is precluded from doing so now. See RCr 11.42(3) ("[f]inal disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.)" Accordingly, Nichols' second motion for RCr 11.42 relief is procedurally improper and duplicitous.
The orders of the Marion Circuit Court are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: David Nichols, Pro se
West Liberty, Kentucky
Margaret Ivie
Frankfort, Kentucky
BRIEFS FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky