DAVID BROWN v. COMMONWEALTH OF KENTUCKY (2010)

NOT TO BE PUBLISHED

AFFIRMING

 ^Double David Brown appeals from the Christian Circuit Court's order of June 5, 2009, whereby the court denied Brown's motion to vacate his judgment pursuant to CR 60.02.   In his CR 60.02 motion, Brown argued to the trial court that the self-defense statutes in effect at the time of his judgment were unconstitutional as they violated § 1 of the Kentucky Constitution ^Double and thus, under § 26 of the Kentucky Constitution ^Double were rendered void.   Brown did not serve the Attorney General with notice of the constitutional challenge and the trial court did not rule on the constitutionality of the statutes in its order but denied Brown's CR 60.02 motion on other grounds.   On appeal, the parties present numerous arguments about whether the constitutional challenge is properly before this Court.   After a review of the parties' arguments and the applicable law we have concluded that the constitutional challenge presented by Brown is not properly before this Court.   Accordingly, we affirm the denial of Brown's CR 60.02 motion.

Brown was convicted of two counts of first-degree manslaughter by a Christian County jury and his conviction was affirmed on direct appeal in Brown v. Commonwealth, 2005 WL 923699 (Ky.2005).   We adopt and incorporate herein the statement of facts set forth by the Supreme Court in its opinion:

The fatal shootout that led to Brown's twenty-four year prison sentence stemmed from a number of individually petty disputes between Brown and his next-door neighbors, the Sanderses.   As often occurs in disputes between neighbors, individually small incidents blow up into one big confrontation.   That happened here.   David Brown lived with Rosetta Jackson, his girlfriend, for a few months preceding this incident.   During that relatively brief span of time, there were numerous confrontations with the Sanderses.   It was after one of the more serious of these clashes that Brown acquired the gun that he eventually used in the shootings.

In one incident, the Sanderses accused Brown of hitting a toddler during a dispute about whether the Sanderses raked trash onto the property where Brown was living.   The police were called, and Brown acted upon their recommendation to go somewhere else so that everyone could calm down.   But the Sanderses followed Brown, and left only after threatening him once more.   Later that night, two bandana-clad men approached Brown with a gun.   No violence transpired, but Brown acquired a gun.   That gun was used two months later.

The evidence is disputed about what happened surrounding the shooting.   But there is agreement that Brown was at his home with Jackson and another friend when the Sanderses knocked on the door.   Harvey Sanders, Jr. was there claiming that someone insulted his wife as she was mowing the grass.   Brown asked Harvey to leave, and during their heated argument, both Trey and Doug Sanders approached the house.   Harvey said that he did not care if anyone in the house with Brown lived or died.   Thereafter, the evidence is unclear.   Brown claims that he saw Harvey make a “pocket-play” for what he thought was a gun, and that he saw Doug brandish a gun.   Then shots were fired in both directions.   After the shooting, Harvey and Trey Sanders were found shot in the head, and Brown was shot in the side.

The Commonwealth's version of events differs starkly from Brown's account.   According to its theory there was an altercation, but it was not until the Sanderses were leaving that Brown shot Harvey and Trey. Harvey and Trey died from their wounds, and Brown was tried for murder.   The jury found him guilty of first-degree manslaughter.

Brown v. Commonwealth, 2005 WL 923699 (Ky.2005).

Thereafter, amendments to the self-defense statutes were enacted in 2006.^Double Specifically, the “castle doctrine” of KRS 503.055 ^Double was enacted, which Brown views as the legislature's attempt to bring the self-defense statutes back in line with constitutional mandates.   Brown presented his constitutional challenge to the self-defense statutes in his CR 60.02 motion and argued to the trial court that the self-defense statutes in effect at the time of his judgment were unconstitutional as they violated § 1 of the Kentucky Constitution and thus, rendered void under § 26 of the Kentucky Constitution.

The trial court did not decide the constitutionality of the self-defense statutes.   In its order it denied Brown's CR 60.02 motion for two reasons.   First, that no extraordinary grounds for relief existed because KRS 503.055 and the amendments to KRS 530.050 are not to be applied retroactively;  and second, that Brown was barred from attacking the constitutionality of KRS 530.050 as it existed in 2001 because he could have made this argument on direct appeal.   It is from this denial that Brown now appeals.

On appeal Brown argues that the trial court erroneously denied his CR 60.02 motion for two reasons.^Double First, that the use of an unconstitutional statue to convict Brown renders his judgment void and appropriate for attack pursuant to CR 60.02, regardless of whether the issue was raised on direct appeal.   Secondly, he argues that the self-defense statutes in effect at the time of his conviction and those same portions still in effect today, are void as contrary to § 1 of the Kentucky Constitution.

The Commonwealth argues ^Double that the reversal of the trial court is not warranted as Brown failed to properly serve the Attorney General with his constitutional challenge at the trial court level.   Thus, this Court should not now consider his challenge.   In reply, Brown argues that the issue concerning notice to the Attorney General is now moot as his CR 60.02 motion was denied on procedural grounds and not on the constitutional challenge;  that the Attorney General is now on notice and could have taken the opportunity to respond to the constitutional challenge in its Appellee brief;  and that if this Court finds that the failure to notify the Attorney General of the constitutional challenge at the trial court level is a fatal error, the appropriate remedy is to void the judgment of the court and remand the case for further proceedings.   We disagree with Brown that the notice issue is moot on appeal for the reasons set forth infra.   See also Brashars v. Commonwealth, 25 S.W.3d 58, 66(Ky.2000)( “we, as well as the trial court, have been deprived of an adversarial hearing regarding the constitutionality of [the statute].”).   Moreover, we disagree that the appropriate remedy in the case sub judice is to vacate the order and remand.   As noted in Brashars, “Accordingly, we hold that the appellants' failure to notify the Attorney General of their constitutional challenges alone provided the trial court with a sufficient basis to overrule the motions and affirm the trial court's ruling.”  Id. at 66.   With these arguments in mind we turn first to the Commonwealth's argument as it is wholly dispositive.^Double

As noted, the Commonwealth argues that the reversal of the trial court is not warranted as Brown failed to properly serve the Attorney General with his constitutional challenge at the trial court level;  thus, this Court should not now consider his challenge.   Recently, in Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky.2008) our Kentucky Supreme Court held that strict compliance with the notice requirements of KRS 418.075 ^Double is mandatory prior to appellate review of a constitutional challenge.   In so holding, the Court stated:

KRS 418.075(1) provides, in relevant part, that “[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․”  We have made plain that strict compliance with the notification provisions of KRS 418.075 is mandatory[,]meaning that even in criminal cases, we have refused to address arguments that a statute is unconstitutional unless the notice provisions of KRS 418.075 had been fully satisfied.

In the case at hand, Benet admits that he did not notify the Attorney General of his constitutional challenge during the pendency of the circuit court proceedings.   Thus, Benet has failed fully and timely to comply with the strict rubric of KRS 418.075, leaving his constitutional challenge unpreserved for our review.   Because the plain language of KRS 418.075 requires notice be given to the Attorney General prior to the entry of judgment, we reject any contention that merely filing an appellate brief, which necessarily occurs post-judgment, satisfies the clear requirements of KRS 418.075.

Benet at 532 (internal citations omitted).

Given the unequivocal holding in Benet we must agree with the Commonwealth that Brown's failure to serve notice upon the Attorney General of his constitutional challenge at the trial court level makes his claimed error upon appeal unpreserved.   Accordingly, we decline to review the merits of Brown's constitutional challenge, and we affirm the trial court's denial of Brown's CR 60.02 motion.

ALL CONCUR.

 Double CAPERTON, JUDGE:   Double Double