WILLIE ALLEN APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

WILLIE ALLEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001906–MR

Decided: January 20, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  COMBS AND NICKELL, JUDGES. BRIEFS FOR APPELLANT:  Willie Allen, pro se Burgin, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Willie Allen, pro se, appeals from an order entered by the Fayette Circuit Court on September 15, 2010, denying CR  Double 60.02 relief.   Having reviewed the record, the briefs and the law, we affirm.

Allen and Robert Welch were rap music producers.   Allen concocted a scheme for financing their music venture.   They and a friend, Stanley King, would buy $5,000.00 worth of marijuana, divvy it into smaller amounts, and sell it for a profit.   On the night of the planned drug buy in January 2003, Allen and Welch, armed with loaded guns, drove to a White Castle restaurant to meet the drug dealer, David Tarango.   The buy went awry and according to Allen, Welch shot and killed Tarango. Double Three handguns were then hidden on a Scott County farm.

In April 2003, Allen, Welch and King were indicted for murder,Double robbery in the first degree Double and tampering with physical evidence. Double On May 1, 2003, the Commonwealth gave notice of its intention to seek the death penalty against all three defendants.

King entered a guilty plea, the terms of which are not before this Court.   Allen pled guilty to an amended count of manslaughter in the second degree and robbery in the first degree on January 9, 2004;  the tampering charge against Allen was dismissed.   In return for Allen's guilty plea, and his promise to testify truthfully against Welch, the Commonwealth agreed to recommend two ten-year sentences and take no position on whether they should be run concurrently or consecutively.   Allen's sentencing was postponed until after Welch's trial.

Allen testified for the Commonwealth at Welch's trial, but his testimony was seriously impeached.   Even so, jurors convicted Welch.   Pursuant to the jury's verdict, Welch was sentenced to twenty-years' imprisonment for manslaughter in the first degree, eighteen-years' imprisonment for robbery in the first degree and one year of imprisonment for tampering with physical evidence.   Welch's three sentences were run concurrently for a total of twenty years.

Allen's final sentencing occurred on March 25, 2005.   Two days earlier, his attorney had moved for concurrent sentences of ten years on both counts based on Allen's cooperation with the investigation, his minimal role in the crime, and the many letters of support sent to the court on his behalf.   Counsel noted that Allen had voluntarily given a recorded statement to police—admitting the scheme was his idea—and had helped police recover the three handguns used in the robbery/murder, whereas King had denied all involvement in the crime and Welch had refused to give a statement to police at all.   Defense counsel argued sentencing Allen to a maximum of ten years would ensure equitable sentences among the three co-defendants.   According to a pleading filed by defense counsel, King was sentenced to ten years as a non-violent offender for criminal facilitation to commit murder and conspiracy to commit robbery and was already parole eligible.   At the sentencing hearing, the prosecutor stated she was taking no stand on whether Allen's sentences should be run concurrently or consecutively, but reminded the trial court of Allen's demeanor during Welch's trial and his attempt to minimize his role in the scheme.   Thereafter, the trial court sentenced Allen to serve two consecutive ten-year sentences for a total of twenty years.   Allen did not file a direct appeal nor did he allege improprieties pursuant to RCr  Double 11.42.

In 2007, the Kentucky Supreme Court vacated and remanded Welch's conviction on direct appeal due to an improper ex parte communication between the trial court and the jury. Double Rather than standing trial again, Welch pled guilty and received a sentence of ten years.

On March 12, 2010, nearly five years after his conviction became final, Allen filed a pro se CR 60.02 Double motion citing sections (e) and (f) and alleging the trial court had abused its discretion and the Commonwealth had reneged on its bargain.   Relying mostly upon federal cases Double interpreting federal sentencing guidelines, Allen was upset by the shorter sentences received by his co-defendants.   He argued that while he had done all he had agreed to do, Welch, whom he named as the shooter, had received a lighter sentence.   Allen asked that the Department of Public Advocacy be appointed to supplement his CR 60.02 motion, but did not request a hearing on the motion.

The Commonwealth responded to Allen's motion stating the Commonwealth's agreement to take no stand on how Allen's sentences should be run was premised on Allen's “ ‘truthful and honest cooperation’ in the trial of any co-defendant, predicated upon the truthfulness of the statements he had previously made at the time of his arrest and during plea negotiations.”   The Commonwealth went on to note that while Allen had testified at Welch's trial, he was less than candid, was repeatedly impeached, and his testimony was characterized as “lies.”   The Commonwealth argued Allen had admitted primary responsibility for the crimes and could not now claim his twenty-year sentence was inequitable, especially since the case would have been tried as a death penalty case had Allen gone to trial.

Without convening a hearing, the trial court denied CR 60.02 relief on September 15, 2010, finding first that appointment of counsel on a CR 60.02 motion was not required by KRS 31.110.   The court then wrote in pertinent part:

Judge Gary Payne presided over [Allen's] sentencing hearing and considered the Presentence Investigation Report, the many letters that were sent on behalf of [Allen], and the motion requesting the sentences to run concurrent.

During the hearing Judge Payne stated, “And, according to your testimony from the stand, you were the one.   You were the one that started this.   You're the one that said let's do it.   You were the one.   You didn't pull the trigger and you did cooperate, I understand that.”   Judge Payne went on to state, “If you didn't take the lead, according to your own testimony, it wouldn't have been done and that robbery wouldn't have taken place and there wouldn't have been a death.”   Judge Payne ordered that the ten year sentences be run consecutively for a total of twenty years and stated, “considering the motion and considering the letters, I think it is a fair thing to do to impose both ten year sentences and run it consecutive.”

“CR 60.02 is an extraordinary remedy and is available only when a substantial miscarriage of justice will result from the effect of the final judgment.”  Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky.1966).   After reviewing the record, it is clear that Judge Payne took into consideration the option of running [Allen's] sentences concurrent or consecutive and, because of [Allen's] role in the crime, Judge Payne chose to run the sentences consecutive[ly].  Therefore, [Allen's] arguments are not a basis for relieving him from his punishment under CR 60.02.

Allen filed a pro se notice of appeal of the order on October 18, 2010, alleging the trial court abused its discretion by not considering the reversal of Welch's original conviction by the Kentucky Supreme Court in 2007 and the subsequent imposition of a sentence of ten years.   This appeal follows.

Allen argues the trial court abused its discretion in denying his motion without convening an evidentiary hearing and in refusing to review his twenty-year sentence after Welch entered a guilty plea and received a sentence of only ten years.   Allen also contends the Commonwealth breached its plea agreement by responding to his CR 60.02 motion.

LEGAL ANALYSIS

We review the denial of a CR 60.02 motion for an abuse of discretion.   White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000);  Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).   We will affirm the trial court's decision absent a “flagrant miscarriage of justice.”  Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).   As stated in McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997) (citing and quoting Gross, 648 S.W.2d at 856):

a CR 60.02 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.”

First, Allen argues the alleged error in failing to hold an evidentiary hearing was preserved by the Commonwealth's statement in its response to Allen's CR 60.02 motion that the trial court should “summarily overrule [Allen's] motion without granting him an evidentiary hearing.”   We disagree.   To preserve an issue for appellate review, the trial court must be given an opportunity to rule upon the issue.  Charash v. Johnson, 43 S.W.3d 274, 278 (Ky.App.2000).   Allen never requested an evidentiary hearing and therefore never gave the trial court reason to grant or deny a hearing.   Thus, we will not fault the trial court for denying the CR 60.02 motion without convening a hearing.  Turner v. Commonwealth, 460 S.W.2d 345, 346 (Ky.1970);  see also Hatton v. Commonwealth, 409 S.W.2d 818, 819–20 (Ky.1966) (“The appellate court reviews for errors, and a nonruling cannot be erroneous when the issue has not been presented to the trial court for decision.”).

As for Allen's request for palpable error review pursuant to RCr 10.26, we deem no hearing to have been necessary because the issues raised were readily resolved by the existing record.  Campbell v. Commonwealth, 316 S.W.3d 315, 320 (Ky.App.2009).   We discern no error and therefore, no palpable error.

Second, Allen argues the trial court abused its discretion in not considering events that occurred years after he was sentenced to serve a twenty-year prison term as a violent offender—namely, that Welch's original twenty-year conviction was reversed on direct appeal and pursuant to a subsequent plea agreement, Welch was sentenced to serve only ten years for robbing and killing Tarango.   Allen argues his prison term should be reduced to a maximum of ten years to be equitable with the sentences imposed on Welch and King. We disagree.

Allen has cited no case authority requiring equitable sentences among criminal co-defendants.   Prior to sentencing, he relied upon federal cases to argue in favor of concurrent sentencing, but Kentucky does not apply the federal sentencing guidelines adopted by Congress in 18 U.S.C. § 3551.   Furthermore, the Petition to Enter Guilty Plea that Allen executed on January 9, 2004, stated in relevant part:

I also understand that if I plead “Guilty”, the Court may impose the same punishment as if I had pleaded “Not Guilty”, stood trial and been convicted by a jury and that the Court need not accept any recommendations as to sentence that may be made by the Commonwealth․

During the guilty plea colloquy, Allen orally assured the trial court he understood he could be sentenced to a term of twenty years.   Thus, Allen knew his fate was in the trial court's hands when he voluntarily entered his guilty plea, and he submitted to the court's decision without any guarantee he would receive concurrent sentences.

As it had promised, the Commonwealth took no stand at sentencing on whether the two ten-year sentences it recommended should be run concurrently or consecutively, but did ask the court to consider Allen's attitude throughout the case, his lack of truthfulness—when honesty was an on-the-record condition of the Commonwealth's offer—and Allen's continued attempt to downplay his role in the robbery/murder.   Before imposing sentence, the trial judge explained to Allen that he believed the imposition of two consecutive ten-year sentences was appropriate because without Allen's plan there would have been no robbery and no death.   The trial judge also stated he believed Allen was being honest when he admitted that he was the leader and that Welch had just followed his lead.   The judge stated he considered imposing a sentence of fifteen years, but ultimately believed Allen was just as guilty as the shooter and a sentence of twenty years was appropriate.   Thus, the trial judge's imposition of consecutive sentences was both lawful and justified by Allen's own statement.

In denying CR 60.02 relief, the trial court found the rationale for consecutive sentences to be compelling and so do we.   That Allen was willing to testify against Welch—maybe truthfully, maybe not—and help police recover the murder weapons, did not absolve him of criminal liability for hatching the scheme—a fact that appears lost on him to this day.

Apparently Welch made a better bargain than Allen;  perhaps the Commonwealth was not confident Allen's testimony, impeached badly at the first trial, would ensure Welch's conviction on retrial.   However, Welch's better bargain does not mean Allen's twenty-year sentence is no longer equitable.   Nor does it amount to an extraordinary reason justifying CR 60.02 relief.   We are simply not persuaded the trial court abused its discretion in denying Allen's motion.

Third, Allen claims the Commonwealth reneged on its promise to take no stand on whether Allen should be sentenced to concurrent or consecutive terms by responding to Allen's CR 60.02 motion.   Allen argues the Commonwealth's filing of a response to his CR 60.02 motion preserved the issue for appeal.   We disagree.

The Commonwealth is entitled to respond to a CR 60.02 motion, which it did.   See Wheat v. Commonwealth, Cabinet for Health and Family Services, ex rel. C.P., 217 S.W.3d 266, 268 (Ky.App.2007).   All the Commonwealth did in its response was to recount preceding events and to argue against a reduction in Allen's sentence due to his own culpability.   Contrary to Allen's belief, the Commonwealth's filing of a response did not preserve an appellate issue for him.

Alternatively, Allen requests palpable error review.   If Allen believed the Commonwealth was reneging on its bargain, he should have voiced that argument during at final sentencing.   Allen's attorney spoke eloquently on Allen's behalf at the final sentencing and urged the trial court to run the terms concurrently or at least reduce one of the ten-year terms to five years for a maximum sentence of fifteen years.   Our review of the record reveals no error and certainly no palpable error.

Finally, although not mentioned in the trial court's order, we deem Allen's CR 60.02 motion to have been untimely filed.  CR 60.02 requires that a motion seeking relief on grounds (e) or (f) be filed within a “reasonable time.”   Allen's motion was filed more than six years after he entered his guilty plea.   Based upon Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky.App.2007) (four-year delay unreasonable), and Gross, 648 S.W.2d at 858 (five-year delay unreasonable), the passage of six years was fatal to Allen's claim.   It matters not that the trial court did not deny relief based upon untimeliness as we may affirm a trial court's decision on other grounds so long as the trial court reached the right result.  Moore v. Commonwealth, 159 S.W.3d 325, 330 (Ky.2005).

For the foregoing reasons, the order of the Fayette Circuit Court denying CR 60.02 relief is affirmed.

all concur.

NICKELL, JUDGE:   Double