Opinion
NO. 2013-CA-000967-MR
12-09-2016
MARVIN PHIPPS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Marvin Phipps, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 03-CR-00062 & 04-CR-00005 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND VANMETER, JUDGES. NICKELL, JUDGE: Marvin Phipps, pro se, appeals the Lincoln Circuit Court's denial of his request for post-conviction relief pursuant to CR 60.02(e)-(f). After careful review of the record and applicable law, we affirm.
Kentucky Rules of Civil Procedure.
On April 2, 2004, Phipps pled guilty to five counts of rape in the second degree, five counts sexual abuse in the first degree and one count of sexual abuse in the first degree. He was sentenced to a term of 22 years' imprisonment. Phipps moved for RCr 11.42 relief on February 12, 2007. The trial court denied the motion on February 26, 2007. That same day, Phipps filed a "Motion to Obtain Declaratory Judgment Pursuant to CR 56.01 for Summary Judgment[.]" This motion was summarily denied. The trial court denied Phipps' first motion for relief under CR 60.02 on January 23, 2009. Though Phipps attempted to appeal denial of this motion, this Court dismissed the appeal on July 20, 2009, for failure to timely file a notice of appeal. Phipps filed a second CR 60.02 motion on January 26, 2012, raising issues concerning his conditional discharge. The trial court denied this motion on April 3, 2012. An appeal from the denial is currently held in abeyance in this Court. Phipps filed his third CR 60.02(e)-(f) motion on October 18, 2012, which was denied by the trial court on May 1, 2013. This appeal followed.
Kentucky Rules of Criminal Procedure.
The record is unclear on whether Phipps appealed denial of this motion.
Even though the motion facially requested a declaratory judgment, it was clearly an improper post-conviction collateral attack. Foley v. Commonwealth, 306 S.W.3d 28, 31-32 (Ky. 2010).
This motion does not appear in the record.
Phipps v. Commonwealth, 2009-CA-0000639.
Phipps v. Commonwealth, 2012-CA-0001635. Abated January 12, 2013, pending resolution of three consolidated cases in this Court which were ultimately resolved by the Supreme Court of Kentucky on discretionary review in McDaniel v. Commonwealth, --- S.W.3d --- (Aug. 25, 2016).
Denial of a CR 60.02 motion is reviewed for abuse of discretion. Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010). A trial court abuses its discretion when its decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted). Absent a "flagrant miscarriage of justice," we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). A hearing is required only if the movant "affirmatively alleges facts which, if true, justify vacating the judgment and further allege[s] special circumstances that justify CR 60.02 relief." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000).
We agree with the Commonwealth. The instant motion is successive. Kentucky "courts do not favor successive collateral challenges to a final judgment of conviction which attempt to relitigate issues properly presented in a prior proceeding." Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009). Phipps previously filed a CR 60.02 motion that was denied by the trial court and which he failed to timely appeal. Denial of his second CR 60.02 motion is presently before this Court. Phipps has given no explanation of why he could not have brought the arguments in this successive CR 60.02 motion in either of his previous two motions. "Proceeding pro se does not provide one with 'a license not to comply with relevant rules of procedural and substantive law.'" Smith v. Bear, Inc., 419 S.W.3d 49, 55 (Ky. App. 2013) (quoting Faretta v. California, 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)). Phipps' motion being successive and his failure to allege he could not have raised these issues during his earlier motions is sufficient cause for this Court to affirm the trial court's denial of his motion. ("[C]ourts have much more to do than occupy themselves with successive 'reruns' of [post-conviction] motions stating grounds that have or should have been presented earlier." Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970) (citation omitted).
Phipps' motion was also untimely. Final judgment was entered June 1, 2004. He filed the present motion on October 18, 2012. Our Supreme Court has previously held a trial court did not abuse its discretion in holding five years was an unreasonable amount of time to wait before filing a CR 60.02(f) motion. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). We hold the trial court did not abuse its discretion in denying the motion.
Phipps raises numerous claims of error on appeal, only a few of which he presented to the trial court. We decline to address any argument not made before the trial court. See Bowling v. Commonwealth, 80 S.W.3d 405, 419 (Ky. 2002) (post-conviction issue not raised in original motion will not be considered on appeal). Phipps' remaining assertions are as follows: 1) his inability to own a firearm because of his felony conviction violates his right to bear arms; 2) the sex offender registration website punishes and embarrasses sex offenders, and exposes them to unnecessary safety risks; 3) the sex offender registration website constitutes an invasion of privacy for sex offenders; 4) the sex offender registration website subjects registrants to cruel and unusual punishment under the Eight Amendment; and, 5) the sex offender registration act violates the Civil Rights Act. Each of these contentions is without merit._
This Court has previously held sex offender registration does not constitute cruel and unusual punishment under the Eighth Amendment. McEntire v. Commonwealth, 344 S.W.3d 125, 128-29 (Ky. App. 2010). Our Supreme Court has held sex offender registration is not an invasion of privacy. Hyatt v. Commonwealth, 72 S.W.3d 566, 573-74 (Ky. 2002). Kentucky courts have repeatedly stated sex offender registration is nonpunitive. See Embry v. Commonwealth, 476 S.W.3d 264, 271 (Ky. App. 2015) ("Lifetime registration being nonpunitive, failure to advise a criminal defendant he is subject to it is not an appropriate basis for relief under Padilla [v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)] or RCr 11.42."). In Posey v. Commonwealth, 185 S.W.3d 170 (Ky. 2006), our Supreme Court considered at length whether the statute prohibiting persistent felony offenders from possessing firearms violated the state constitutional right to bear arms, eventually concluding it did not. Although pertaining to persistent felons, we believe a similar result applies to sex offenders. Further, Phipps' claim under the Civil Rights Act must fail because he has not alleged any specific violation of the Act. "It is not our function as an appellate court to research and construct a party's legal arguments, and we decline to do so here." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). Because each claim fails on the merits, Phipps is not entitled to relief under CR 60.02(e)-(f).
In our view, Hyatt also addresses Phipps' contention that sex offenders are exposed to unnecessary safety risks through registration.
The Commonwealth of Kentucky has a serious and vital interest in protecting its citizens from harm which outweighs any inconvenience that may be suffered because of the notification and registration provisions. The statute clearly serves a public policy and is a wise use of government resources all of which is to be decided by the legislature.72 S.W.3d at 574.
Phipps' motion for CR 60.02(e)-(f) relief was untimely, barred as successive and substantively meritless. Therefore, the Lincoln Circuit Court's order denying his motion for post-conviction relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Marvin Phipps, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky