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Court of Appeals of Kentucky.


NO. 2010–CA–000087–MR

Decided: March 09, 2012

BEFORE:  COMBS, KELLER AND STUMBO, JUDGES. BRIEFS FOR APPELLANT:  M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky



Benji Manns (Manns) appeals from the Magoffin Circuit Court's order denying his motion for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 and Kentucky Rule of Civil Procedure (CR) 60.02, and his request for an evidentiary hearing.   For the following reasons, we affirm.


Having reviewed the record, we adopt the following facts as stated in the opinion of the Supreme Court of Kentucky in Manns's direct appeal:  Double

On June 20, 2005, the Magoffin County grand jury returned an indictment charging Appellant with nine drug offenses, and the case was assigned to a special judge.   Three of the counts, for first-degree trafficking in a controlled substance, were taken to trial in July 2006.   Prior to trial, two of the trafficking counts were amended to reflect that they were second or subsequent offenses.   The prosecution also obtained a separate single-count indictment charging Appellant with being a persistent felony offender in the first degree.   The separate indictment was transferred from the regular Magoffin Circuit Court judge to the special judge already sitting in Appellant's case.

․  The jury found Appellant guilty on all three counts of first-degree trafficking.

The trial then proceeded to a second phase at which evidence was admitted demonstrating that Appellant had been convicted of a prior trafficking offense.   The jury found Appellant guilty of being a subsequent offender.

The trial then proceeded to a third phase regarding the PFO charge, at which evidence of prior convictions other than those used in the “subsequent offense” phase described above was presented.   The jury found that Appellant was a first-degree persistent felony offender but was deadlocked as to the penalty.   The judge imposed the minimum penalty of twenty years on each count, to run consecutively for a total of sixty years in prison.

On August 21, 2008, the Supreme Court of Kentucky rendered an opinion affirming Manns's conviction and sentence.   Manns subsequently filed a motion in the Magoffin Circuit Court to set aside his conviction and sentence pursuant to RCr 11.42 and CR 60.02.   Without conducting an evidentiary hearing, the trial court denied Manns's motion.   This appeal followed.


The issues raised by Manns have differing standards of review.   Therefore, we set forth the appropriate standard of review as we address each issue.


1. RCr 11.42

On appeal, Manns first contends that he received ineffective assistance of counsel because his trial counsel failed to object to the trial court's sentencing of him on the persistent felony offender conviction absent a recommendation by a jury.   We disagree.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).   See Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985).   Under this standard, a party asserting such a claim is required to show:  (1) that the trial counsel's performance was deficient in that it fell outside the range of professionally competent assistance;  and (2) that the deficiency was prejudicial because there is a reasonable probability that the outcome would have been different but for counsel's performance.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.   A defendant must overcome a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance.  Id. at 690, 104 S.Ct. at 2066.

In support of his argument, Manns relies on Commonwealth v. Crooks, 655 S.W.2d 475, 476 (Ky.1983), wherein the Supreme Court of Kentucky permitted Crooks's retrial on a PFO charge after the jury at his first trial unanimously agreed that Crooks was a First–Degree PFO, but could not agree upon a penalty.   The Court concluded that:

KRS 532.080 specifically provides that the jury ‘shall’ fix the sentence to be imposed in a PFO conviction.   The statute and the commentary require the jury not only to find guilt but to fix the sentence.   It is only after the jury has fixed the penalty that the judge may proceed to enter judgment sentencing the defendant ․ (citation omitted.)

․ [I]n PFO proceedings, the finding of guilt and the fixing of an appropriate sentence are inextricably linked, and no final action has been taken until the jury performs both functions.

Id. (Quotation and citation omitted).

Subsequent to the Crooks decision, the Legislature enacted KRS 532.055, commonly referred to as the Truth–in–Sentencing statute.   Subsection (3) of that statute provides that, “All hearings held pursuant to this section shall be combined with any hearing provided for by KRS 532.080 [Persistent Felony Offender Sentencing].”  KRS 532.055(4) further states, “In the event that the jury is unable to agree as to the sentence or any portion thereof and so reports to the judge, the judge shall impose the sentence within the range provided elsewhere by law.”

We believe that the language in KRS 532.055(4) authorizes the trial court to sentence a persistent felony offender when a jury has found guilt on the offense but is unable to reach a sentencing recommendation.   See also RCr 9.84(1) (“the court may fix the penalty ․ (b) in cases where the court is otherwise authorized by law to fix the penalty”);  Holbrooks v. Commonwealth, 85 S.W.3d 563, 567–68 (Ky.2002);  Lawson v. Commonwealth, 85 S.W.3d 571, 582 n.33 (Ky.2002).   Accordingly, we cannot conclude that Manns received ineffective assistance of counsel when his counsel did not object to the trial court's sentencing of him on the persistent felony offender conviction without a recommendation by a jury.

As to Manns's contention that he was entitled to an evidentiary hearing, we note that there is no automatic entitlement to an evidentiary hearing with regard to an RCr 11.42 motion.   Rather, a hearing is required only if there is an “issue of fact that cannot be determined on the face of the record.”   RCr 11.42(5);  Stanford v. Commonwealth, 854 S.W.2d 742, 743–44 (Ky.1993).   Because Manns's allegations are clearly refuted on the face of the record, the trial court did not err in refusing to hold an evidentiary hearing.

2. CR 60.02

Next, Manns argues that the overruling of Devore v. Commonwealth, 662 S.W.2d 829 (Ky.1984), by the Supreme Court of Kentucky in Peyton v. Commonwealth, 253 S.W.3d 504 (Ky.2008), entitles him to a new sentencing hearing pursuant to CR 60.02.   We disagree.

“The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion.”  White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000).   To amount to an abuse of discretion, the trial court's decision must be “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).   Absent a “flagrant miscarriage of justice,” the trial court will be affirmed.   Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).

Further, as set forth in Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky.2011):

The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete.   That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02.   The rule is not intended as merely an additional opportunity to raise claims which could and should have been raised in prior proceedings, but, rather, is for relief that is not available by direct appeal and not available under RCr 11.42.   In order to be eligible for CR 60.02 relief, the movant must demonstrate why he is entitled to this special, extraordinary relief.

(Quotations and citations omitted).

In this case, the trial court concluded that it was required to run Manns's sentences consecutively.   Manns argues that the trial court's reliance on Devore, when concluding that his sentences were to run consecutively, was misplaced because the Supreme Court of Kentucky overruled Devore in Peyton.   Manns contends that the Peyton decision should apply to his case because that decision became final while his direct appeal to the Supreme Court of Kentucky was still pending.

We note that Manns previously presented this argument to the Supreme Court in his Petition for Rehearing filed after the Court affirmed his conviction.   The Court denied his petition.

Because this issue was previously decided, “that decision becomes the law of the case[,]” and “is clearly barred by the law of the case doctrine.”   Ellison v. Commonwealth, 994 S.W.2d 939, 940 (Ky.1999).   Further, “[t]he fact that [the Court] did not specifically address the issue in [its] denial of [his] petition for rehearing does not change this result.   Moreover, failure to specifically address the issue does not create any wiggle room in the applicability of the law of the case doctrine.”  Id. Accordingly, this issue has been determined by the Supreme Court and may not be addressed by this Court.

As to Manns's contention that he was entitled to an evidentiary hearing, “[b]efore a 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.”  Gross, 648 S.W.2d at 856.   An evidentiary hearing was unnecessary because the issue raised by Manns is not properly before us.


For the foregoing reasons, we affirm the order of the Magoffin Circuit Court denying Manns's motion for post-conviction relief pursuant to RCr 11.42 and CR 60.02.