Opinion
NO. 2013-CA-000275-MR
04-13-2018
JUSTIN RIDDLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Justin Riddle Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 09-CR-00082 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; J. LAMBERT AND TAYLOR, JUDGES. KRAMER, CHIEF JUDGE: Justin Riddle, proceeding pro se, appeals the Rockcastle Circuit Court's order denying his motion to amend his sentence. After a careful review of the record, we affirm.
Although Riddle is proceeding pro se, he states on the cover of his appellate brief that his brief was written with the assistance of an inmate.
Although a motion to amend a defendant's sentence is often brought pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42, Riddle did not bring his motion to amend pursuant to that rule. Additionally, the circuit court did not recharacterize the motion as one brought pursuant to RCr 11.42 as it was permitted to do. See McDaniel v. Commonwealth, 495 S.W.3d 115, 124-25 (Ky. 2016).
I. FACTUAL AND PROCEDURAL BACKGROUND
Justin Riddle was charged by information with the offense of third-degree rape. He waived the right to be indicted by a grand jury. A plea hearing was held, during which Riddle entered a guilty plea to the charge. Also during the hearing, the Commonwealth's Attorney noted that in addition to any sentence of imprisonment Riddle would receive, he would also have to serve a period of conditional discharge following his release from imprisonment. The circuit court entered its judgment finding Riddle guilty of third-degree rape and sentencing him to four years of imprisonment, to be followed by five years of conditional discharge upon his release from incarceration at the expiration of his sentence. Riddle was further ordered to register as a sex offender for twenty years upon his release from incarceration.
Although Riddle was sentenced to conditional discharge under the version of Kentucky Revised Statute (KRS) 532.043 in effect at the time of his sentencing, the statute was subsequently changed by the General Assembly in response to the Kentucky Supreme Court's holding in Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010). In Jones, the Supreme Court held that under the Kentucky Constitution's separation of powers provisions, although the General Assembly can "create a form of conditional release with terms and supervision by the executive branch[,] . . . the statutory scheme runs afoul of the separation of powers doctrine when revocation is the responsibility of the judiciary." McDaniel, 495 S.W.3d at 120 (internal quotation marks and citation omitted). Therefore, in response to Jones, the General Assembly "changed the name from 'conditional discharge' to 'postincarceration supervision,' and amended subsection 5 of KRS 532.043 to provide for Parole Board, rather than judicial, oversight of revocations." McDaniel, 495 S.W.3d at 120. This change to the statute was procedural in nature, so it can be applied retroactively to Riddle's sentence in the present case. See Melcher v. Commonwealth, 471 S.W.3d 699, 701-02 (Ky. App. 2015) (citation omitted).
Riddle subsequently moved to amend his sentence. He contended that the conditional discharge portion of his sentence was unconstitutional because it enhanced the statutory length of his sentence. Due to this, the conditional discharge needed to be "presented in an indictment, tried by a jury, and the enhancement must be levied by the jury after finding guilt beyond a reasonable doubt." In support of this claim, Riddle cited Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Approximately four months later, and before the circuit court had ruled on his first motion to amend his sentence, Riddle filed a second motion to amend his sentence. Riddle's second motion included everything he had stated in his first motion, plus it added allegations that the circuit court and defense counsel failed to inform him what conditional discharge meant and that the conditional discharge part of his sentence violated his right against double jeopardy.
The Commonwealth incorrectly states in its brief on appeal that the two motions were "identical."
The circuit court entered an order denying Riddle's motion to amend his sentence. The court did not refer to more than one motion to amend having been filed; it only referred to a singular motion to amend. Riddle now appeals, contending that the circuit court erred in denying his motion and that the court should have addressed both of his motions to amend.
II. ANALYSIS
We begin by addressing Riddle's allegation that the circuit court only referred to one of his motions to amend. Although it is true that the circuit court only referred to one motion, it likely did so because Riddle's second motion re-stated everything he had included in his first motion, plus it included more claims. Therefore, because the second motion encompassed everything from the first motion plus additional claims, it was reasonable for the circuit court to only refer to one motion when it reviewed Riddle's second motion to amend.
Before addressing Riddle's claims on appeal, we pause to address Riddle's apparent failure to serve his motions to amend on the Attorney General before the circuit court entered its judgment. Pursuant to KRS 532.043, Riddle was sentenced to a period of conditional discharge following his release from incarceration. Riddle alleges that the conditional discharge portion of his sentence under KRS 532.043 was unconstitutional because it enhanced the statutory length of his sentence and, pursuant to Apprendi, conditional discharges should be "presented in an indictment, tried by a jury, and . . . levied by the jury after finding guilt beyond a reasonable doubt." Riddle also contends that his conditional discharge sentence violates his right against double jeopardy because conditional discharge results in a defendant being punished twice for the same offense. We note that Riddle's constitutional claims concerning Apprendi and double jeopardy required him to notify the Attorney General of his claims before the judgment was entered in the circuit court. However, according to the certificate of service on both of his motions to amend, Riddle did not notify the Attorney General of his claims.
Pursuant to KRS 418.075(1), "[i]n any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard. . . ." The Kentucky Supreme Court has held that "strict compliance with the notification provisions of KRS 418.075 is mandatory[.]" Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008). The Supreme Court has even held that the Attorney General must be notified when a claimant is raising an "as applied" constitutional challenge to a statute. Id. at 532-33. Because Riddle failed to comply with the notification requirement, his claims challenging the constitutionality of the conditional discharge statute wherein he alleges that conditional discharge violates both the holding in Apprendi and the right against double jeopardy are unpreserved for our review. See Benet, 253 S.W.3d at 532. Alternatively, even if these claims were preserved for our review, they lack merit, as we will discuss infra. A. APPRENDI CLAIM
Riddle asserts that pursuant to Apprendi, 530 U.S. at 466, 120 S.Ct. at 2348, conditional discharges should be "presented in an indictment, tried by a jury, and . . . levied by the jury after finding guilt beyond a reasonable doubt." In Apprendi, the United States Supreme Court held as follows:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, . . . [i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63 (internal quotation marks and citations omitted).
In McDaniel v. Commonwealth, 495 S.W.3d 115 (Ky. 2016), the appellants made a similar Apprendi claim in their original motions filed in the circuit court. In McDaniel, the appellants
challenged the conditional discharge requirement on a number of grounds . . . [including] as a sentence "enhancement" imposed on the basis of judicial fact-finding in violation of Apprendi . . . which generally requires the jury to find any fact that will allow an "enhanced" or "aggravated" sentence[.]McDaniel, 495 S.W.3d at 118-19. The Kentucky Supreme Court stated, however, that the McDaniel appellants' claims changed on appeal, and that the Apprendi claim was not raised on appeal. See McDaniel, 495 S.W.3d at 122. Regardless, concerning the Apprendi claim the appellants had raised in the circuit court, the Supreme Court noted in McDaniel: "the defendants waived jury fact-finding by pleading guilty, and each of them, by pleading guilty to a felony offense within KRS Chapter 510, admitted the fact (no judicial fact-finding required) that subjected them to the conditional discharge 'enhancement.'" McDaniel, 495 S.W.3d at 119 n.1.
The same reasoning applies to Riddle's Apprendi claim—because he entered a guilty plea to a felony offense under KRS Chapter 510, he admitted the fact that required him to be subjected to the conditional discharge "enhancement" under KRS 532.043 and, by admitting that fact, there was no judicial fact-finding necessary. Consequently, Riddle's Apprendi claim lacks merit, and he was required under KRS 532.043 to be sentenced to a period of conditional discharge.
B. DOUBLE JEOPARDY
Riddle also alleges that his sentence of conditional discharge following his release from incarceration violates his right against double jeopardy because it punishes him twice for the same offense. This same claim was raised in the circuit court proceedings in the McDaniel case. Although it appears that this claim was not raised on appeal in McDaniel, the Kentucky Supreme Court nevertheless addressed the claim in a footnote. The Court stated:
Conditional discharge, . . . although an addition to the term-of-years sentence either bargained for (as in these cases) or imposed by the jury, is not a "second" punishment imposed in the course of a "second" jeopardy, as disallowed by the Double Jeopardy Clause, but is merely a portion of a single sentence imposed in the course of the original jeopardy.McDaniel, 495 S.W.3d at 119 n.3. Therefore, pursuant to the Supreme Court's reasoning in McDaniel, Riddle's double jeopardy claim lacks merit because the conditional discharge was a portion of the single sentence he received in the course of the original jeopardy.
C. FAILURE TO NOTIFY ABOUT MEANING OF CONDITIONAL DISCHARGE
Riddle also alleges that the circuit court and defense counsel failed to inform him what conditional discharge meant. At the time he was sentenced, KRS 532.043(1) provided:
In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510 . . . shall be subject to a period of conditional discharge following release from:
At the time the judgment against Riddle was entered in October 2009, KRS 532.043(2) required the period of conditional discharge to be five years. A review of the recorded video of the plea colloquy shows that the Commonwealth's Attorney stated during the colloquy that Riddle would be subject to a five-year period of conditional discharge, which defense counsel acknowledged. The court asked Riddle if he had any questions, and he responded in the negative. The court also asked Riddle if he was satisfied with the representation he had been given by counsel, and he responded in the affirmative. Because the Commonwealth's Attorney mentioned the period of conditional discharge during the colloquy, there was no need for the court and/or defense counsel to also note it during the colloquy. Additionally, Riddle was asked if he had any questions. He could have asked what was meant by "conditional discharge" if he did not understand, but he did not. Further, he stated on the record that he was satisfied with his counsel's representation. Consequently, this claim lacks merit.(a) Incarceration upon expiration of sentence; or
(b) Completion of parole.
A defendant entering a plea of guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) refuses to admit guilt but acknowledges that the Commonwealth can present sufficient evidence to support a conviction.
A prior version of the statute required only three years of conditional discharge. --------
Finally, although his appellate brief is not entirely clear, it appears that Riddle attempts to raise new issues in his appellate brief that he did not raise in the circuit court. We will not review those claims for the first time on appeal. See 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).
Accordingly, the order of the Rockcastle Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Justin Riddle
Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky