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Court of Appeals of Kentucky.


NO. 2011–CA–000618–MR

Decided: February 17, 2012

BEFORE:  CAPERTON AND THOMPSON, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Darrell Anderson, Pro Se Central City, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky



The Appellant, Darrell Anderson, appeals the January 5, 2011, order of the Barren Circuit Court rejecting his successive Kentucky Rules of Civil Procedure (CR) 60.02 motion.   On appeal, Anderson argues that his sentences should have run concurrently and that he should not have been classified as a violent offender.   Having reviewed the record, the arguments of the parties, and the applicable law, we affirm.

On May 5, 2004, Anderson was indicted by the Barren Circuit Court for murder and tampering with physical evidence for shooting and killing William Stubblefield, and attempting to conceal evidence of the crime.   Anderson's wife, Teresa, was also indicted for tampering with physical evidence.   On December 10, 2004, the Commonwealth offered to amend the murder charge to first-degree manslaughter and to dismiss charges against Teresa if Anderson pled guilty to both counts.   The offer included in the record noted that the Commonwealth would recommend a sentence of fifteen years for manslaughter, and a sentence of five years for tampering with physical evidence.   The offer also noted that the Commonwealth would recommend that the sentences run consecutively, for a total sentence of twenty years' imprisonment.

On February 2, 2005, the trial court entered its final judgment and sentence based upon Anderson's acceptance of the Commonwealth's offer.   The judgment noted that Anderson pled guilty and that the trial court accepted the recommendation of the Commonwealth concerning his sentence.

Subsequently, on October 24, 2005, Anderson filed a pro se motion, citing CR 60.02, and requesting that he be re-sentenced so that his sentences run concurrently.   That motion noted that the trial court had ordered consecutive sentences.   Anderson's basis for that motion was that a resentencing would be “best” for the Commonwealth, that he had suffered an unnamed injury, and that the trial court should show him mercy.   In that motion, Anderson did not reference any confusion or erroneous advice.   The trial court denied that motion on October 26, 2005.

Nearly three years after his sentencing, on December 12, 2007, Anderson filed a motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, alleging coercion in obtaining the guilty plea and ineffective assistance of counsel.   Upon receiving the advice of appointed counsel, Anderson decided to voluntarily withdraw his RCr 11.42 motion.   Anderson noted that he could be charged with murder and may receive a much longer and more severe sentence if he were successful in invalidating his original guilty plea.

On November 1, 2010, Anderson filed his second motion pursuant to CR 60.02, which is the motion currently before this Court.   That motion alleged that he had been incorrectly classified as a violent offender by the Department of Corrections and that he should have been eligible for parole consideration after serving twenty percent (20%) of his sentence.   Anderson also alleged that his sentences should have been concurrently run.   On January 5, 2011, the trial court denied Anderson's second CR 60.02 motion.   The trial court's order noted that the court did not have any discretion regarding parole eligibility.   The order further noted that Anderson received the sentence that was recommended by the Commonwealth as part of his favorable and negotiated plea agreement.

On appeal, Anderson argues that he was denied his constitutional right to counsel as part of the post-conviction proceeding, that he was denied his constitutional right when the Commonwealth recommended that the sentences run consecutively, and that he was denied a constitutional right when he was classified as a violent offender.

In response, the Commonwealth argues that the trial court correctly denied Anderson's motion because:  (1) the motion was an untimely inappropriate successive post-conviction motion;  (2) Anderson was not entitled to counsel because post-conviction proceedings are civil proceedings to which the Sixth Amendment does not apply;  (3) Anderson received the favorable deal for which he bargained;  (4) the recommendation was clearly set out by the offer that was filed in the record;  and (5) the trial court had no authority to force the Department of Corrections, which is not a party, to reclassify Anderson in a manner contrary to the applicable statute.

In reviewing the arguments of the parties, we note that our review of the trial court's denial of a CR 60.02 motion is for abuse of discretion.  Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996).   The test for an abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).   We review this matter with these standards in mind.

Having reviewed the record, the arguments of the parties, and the applicable law, we are in agreement with both the Commonwealth and the court below, and find that Anderson's motion was properly denied.   Upon review, we simply cannot find that the court abused its discretion in denying the motion on the basis of information already in the record.   First, we note that it is the law of this Commonwealth that motions made pursuant to CR 60.02 are not intended to initiate additional criminal proceedings when such issues could have been addressed through either a direct appeal or through a motion pursuant to RCr 11.42.   Indeed, such motions are intended only in such extraordinary circumstances where an issue could not be raised either through a direct appeal, or through RCr 11.42.   See Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983).   Such motion must be made in a timely fashion and the issues raised therein must be based upon facts which were not discovered until after of the judgment without fault of the party seeking relief.  Harris v. Commonwealth, 296 S.W.2d 700 (Ky.1956), and McQueen v. Commonwealth, 948 S.W.2d 415 (Ky.1997).

Concerning Anderson's claim that he was denied his right to counsel, again, we disagree.   Our Supreme Court has previously held that where there is no basis to hold an evidentiary hearing, the trial court will not abuse its discretion in denying a motion to appoint counsel because counsel would be limited to the record.   See Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky.2001).

Anderson also argues that he was denied a constitutional right when the court ordered the sentences to run consecutively, instead of concurrently.   As noted above, the Commonwealth recommended a consecutive sentence and the trial court determined that the sentences would, in fact, run consecutively for a total of twenty years.   Below, Anderson pled guilty to First–Degree Manslaughter, a Class B felony to which a sentence of fifteen years was imposed, a sentence less than the maximum allowable of twenty years.   Anderson also pled guilty to tampering with physical evidence, a Class D felony, with a maximum sentence of five years.   A cumulative sentence of twenty years was imposed.   The sentence, as imposed, did not exceed any applicable statutory sentencing cap and was within the discretion of the trial court.   While the court could have chosen to impose a lighter sentence by choosing to run the sentences concurrently, the court was under no obligation to do so.   The court sentenced Anderson within its discretion and we decline to disturb that sentence on appeal.

As his final basis for appeal, Anderson argued that he should not have been classified as a violent offender.   Upon review of the record and applicable law, we believe that this argument was also properly rejected by the court below.   We note that KRS 439.3401 defines a violent offender as, “any person who has been convicted of or pled guilty to the commission of ․ (c) A class B felony involving the death of the victim or serious physical injury to a victim [.]”  The statute is mandatory and states that any violent offender convicted of a Class B felony “shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.”  KRS 439.3401(3).

It is undisputed that Anderson caused the death of a victim and pled guilty to a Class B felony.   Thus, he qualified as a violent offender under the statute.   Indeed, this Court has previously held that a violent offender is not entitled to reclassification when the statute clearly applies to the offense of the conviction.  Fambrough v. Dept. of Corr., 184 S.W.3d 561, 563 (Ky.App.2006).   Accordingly, we believe the trial court correctly denied Anderson's motion on this issue.

Wherefore, for the foregoing reasons, we hereby affirm the January 5, 2011, order of the Barren Circuit Court.

all concur.