ANGELA RENE COMBS COMER v. COMMONWEALTH OF KENTUCKY (2010)

NOT TO BE PUBLISHED

AFFIRMING

Angela Comer appeals pro se from an Order of the Monroe Circuit Court denying her Kentucky Rules of Civil Procedure (CR) 60.02 motion to modify her sentence.   She argues that the court erred in failing to determine that she has served enough of her sentence to be sufficiently rehabilitated, that her sentence constitutes cruel and unusual punishment, and she committed the charged offense under extreme emotional duress, thus justifying CR 60.02(f) relief.   We have found no basis for concluding that the trial court erred in denying Comer's motion, and accordingly affirm.

Pursuant to a plea agreement, Comer pled guilty in Monroe Circuit Court to one count of third-degree sodomy and one count of custodial interference.   The charges resulted from an indictment alleging that Comer, who was a teacher, engaged in sexual intercourse with a 14 year-old student and then fled with the student to Mexico.   The plea was accepted, and Comer was sentenced to five years on each count, to run consecutively for a total of 10 years in prison.

After serving approximately 40 months of the sentence, Comer filed a pro se motion seeking modification of her sentence under CR 60.02(e) and (f).  As a basis for the motion, Comer maintained that she was sufficiently rehabilitated after having participated in a sex offender treatment program for 14 months, and that she no longer posed a risk to the community.   She also claimed that she committed the offenses under extreme emotional distress and post-traumatic distress resulting from an impending divorce.   On June 2, 2009, the Monroe Circuit Court rendered an Order Overruling Motion for Modification of Sentence, wherein the court denied Comer's motion for relief.   The court noted that Comer had set out in her motion a litany of accomplishments she attained while incarcerated at the Kentucky Correctional Institute for Women.   It found these accomplishments “quite laudable” and determined “that Comer is an exceptionally bright individual.”   Relying on Brown v. Commonwealth, 932 S.W.2d 359 (Ky.1996), the court concluded that the purpose of CR 60.02 is not to permit sentence modification based on exemplary behavior while incarcerated.   This appeal followed.

Comer now argues that the Monroe Circuit Court erred in overruling her CR 60.02(e) and (f) motion for sentence modification.   She maintains that her incarceration has served its purpose in that she is now rehabilitated, and that any additional incarceration is therefore punitive rather than rehabilitative.   She also maintains that the sentence is unduly harsh for the crime committed, and therefore constitutes cruel and unusual punishment in violation of the constitutions of the United States and Kentucky.   Lastly, she claims that the circuit court improperly failed to determine that the extreme emotional distress she was suffering at the time of the offense constituted “any other reason of an extraordinary nature justifying relief” under CR 60.02(f).

We have closely examined the record and the law, and find no basis for reversing the Order on appeal.  CR 60.02 states,

On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds:  (a) mistake, inadvertence, surprise or excusable neglect;  (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02;  (c) perjury or falsified evidence;  (d) fraud affecting the proceedings, other than perjury or falsified evidence;  (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;  or (f) any other reason of an extraordinary nature justifying relief.   The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken.   A motion under this rule does not affect the finality of a judgment or suspend its operation.

The focus of Comers claim of error is that her purported rehabilitation, coupled with her claim of being under severe emotional distress at the time the offenses were committed, justifies a finding under CR 60.02(e) that it is no longer equitable that the judgment should have prospective application, or that it constitutes any other reason of an extraordinary nature justifying relief under CR 60.02(f).  We are not persuaded by this argument.   In denying Comers motion, the circuit court relied on Brown v. Commonwealth, 932 S.W.2d 359 (Ky.1996).   In Brown, the Kentucky Supreme Court held in relevant part that post -conviction relief from judgment under CR 60.02 should not be granted unless the new evidence, if originally presented at trial would have, with reasonable certainty, changed the result.   Comer's unsubstantiated claim of rehabilitation, even if true, does not make prospective application of the judgment inequitable.   Further, it does not constitute a reason of extraordinary nature justifying relief.   Similarly, Comer's guilty plea had the effect of waiving as a defense or mitigating circumstance her contention that she committed the offenses while under extreme emotional distress and/or while suffering from post-traumatic stress.  Bush v. Commonwealth, 702 S.W.2d 46, 48 (Ky.1986);  Hendrickson v. Commonwealth, 450 S.W.2d 234, 235 (Ky.1970) ( [t]he effect of a plea of guilty is to waive all defenses except that the indictment charged no offense and to authorize the imposition of the penalty prescribed by law.).   Accordingly, we find no error on this issue.

As to Comers contention that the circuit court erred in failing to determine that her sentence constitutes cruel and unusual punishment under the constitutions of the United States and of Kentucky, we also find no error.   We are persuaded by the Commonwealths argument that a claim of improper sentencing must be raised via proper post-sentencing motion or on direct appeal.  CR 60.02 is not a substitute for direct appeal, or for a matter which could have previously been raised by other means.  Gross v. Commonwealth, 648 S.W.2d 853 (Ky.1983).   Even if the question of the constitutionality of Comers sentence were properly before us, we would find no error.   The Kentucky Supreme Court has examined the different methodology by which one may conclude that a sentence is violative of the constitutional prohibition against cruel and unusual punishment.   It stated in Workman v. Commonwealth, 429 S.W.2d 374, 377-378 (Ky.1968), that,

What constitutes cruel and unusual punishment has never been determined with any degree of exactness by the courts.   The reason for this is probably because the concept changes with the continual development of society and with sociological views concerning the punishment for crime.   There is no doubt but that the courts of England in Blackstone's day would have accepted means of punishment which would be completely intolerable in our time.   However, there have been worked out by the courts over a period of years, certain general approaches to the question which are most helpful.   See Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963), (dissenting opinion by Goldberg, J.);  Jordan v. Fitzharris, D.C., 257 F.Supp. 674.   The first approach is to determine whether in view of all of the circumstances the punishment in question is of such character as to shock the general conscience and to violate the principles of fundamental fairness.   This approach should always be made in light of developing concepts of elemental decency.   This resolves itself into a matter of conscience and the principles to be applied to the individual case without a lot of attention to ancient authorities.  Lee v. Tahash, 352 F.2d 970, 972 (8th cir.1965).

The next approach is likewise one of conscience but the test pits the offense against the punishment and if they are found to be greatly disproportionate, then the punishment becomes cruel and unusual.  Weems v. United States, supra.

The third test is does the punishment go beyond what is necessary to achieve the aim of the public intent as expressed by the legislative act?   If it exceeds any legitimate penal aim, it is cruel and unusual.  Weems v. United States, supra;  Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.

A term of imprisonment of 10 years for the offenses to which Comer pled guilty does not shock the general conscience nor violate the principles of fundamental fairness.   Similarly, and in the language of Workman, the sentence is neither greatly disproportionate to the offenses nor does it exceed any legitimate penal aim.   We cannot conclude that Comers sentence is violative of the constitutional prohibition against cruel and unusual punishment.   Nor may we determine that it is no longer equitable that the judgment should have prospective application (CR 60.02(e)), or that it constitutes any other reason of an extraordinary nature justifying relief (CR 60.02(f)).  Accordingly, we find no error.

For the foregoing reasons, we affirm the Monroe Circuit Courts Order Overruling Motion for Modification of Sentence.

ALL CONCUR.

STUMBO, JUDGE: