BRIAN TODD DUMPHORD APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

BRIAN TODD DUMPHORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–001871–MR AND NO.2011–CA–002337–MR

Decided: May 31, 2013

BEFORE:  ACREE, CHIEF JUDGE;  lambert AND Maze, JUDGES. BRIEF FOR APPELLANT:  Jerry L. Wright Lexington, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Christian K.R. Miller Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Brian Todd Dumphord appeals from a judgment of the Fayette Circuit Court following his conditional guilty plea to one count of first-degree trafficking in a controlled substance;  one count of third-degree assault;  one count of second-degree criminal mischief;  and one count of possession of drug paraphernalia.   Dumphord also appeals from an order of the trial court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion.   We affirm.

The underlying facts are not in dispute.   On March 4, 2009, a search warrant was issued for Dumphord's residence at 2964 Mahala Lane, Lexington, Kentucky.   The warrant was issued based on an affidavit by Detective K.J. Ford of the Lexington–Fayette Urban County Division of Police.

No one was present when the police initially entered Dumphord's home;  however, Dumphord arrived during the search.   According to an incident investigation report, when Dumphord arrived, he “rammed” his vehicle into a police cruiser causing damage to the vehicle and injuring an officer.   The search of Dumphord's residence resulted in the recovery of approximately ten and a half ounces of cocaine, $20,107.00 in U.S. currency, and ammunition.   As a result, Dumphord was charged with one count of first-degree trafficking in a controlled substance;  one count of second-degree assault;  one count of first-degree criminal mischief;  and one count of possession of drug paraphernalia.

Dumphord moved to suppress the evidence obtained arguing the search warrant was not supported by probable cause.   After a suppression hearing, the trial court denied Dumphord's motion.   Dumphord then entered a conditional guilty plea to one count of first-degree trafficking in a controlled substance;  one count of third-degree assault;  one count of second-degree criminal mischief;  and one count of possession of drug paraphernalia.   Additionally, an agreed restitution order was entered requiring Dumphord to pay $3,499.79 for the damages he caused to the police cruiser.   On September 19, 2011, the trial court entered a final judgment and sentenced Dumphord to eight years' imprisonment.   Dumphord appealed from the trial court's final judgment.

Thereafter, Dumphord filed a CR 60.02 motion.   In that motion, Dumphord argued that after the entry of his final judgment, he learned of a local ordinance that precluded everyone except authorized employees of the urban county government, which did not include members of the Division of Police, from entering into a trash receptacle or the trash bags contained therein.   After a hearing, the trial court entered an order denying Dumphord's motion, and Dumphord appealed from that order.

By order of this Court, the two appeals were consolidated.

On appeal, Dumphord first contends that the trial court erred in denying his motion to suppress.   As provided in Commonwealth v. Jones, 217 S.W.3d 190 (Ky.2006):

Motions to suppress are governed by Kentucky Rules of Criminal Procedure (RCr) 9.78.   That rule provides that a court facing a motion to suppress “shall conduct an evidentiary hearing outside the presence of the jury and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling.”   When reviewing an order that decides a motion to suppress, the trial court's findings of fact are “conclusive” if they are “supported by substantial evidence.”   Using those facts, the reviewing court then conducts a de novo review of the trial court's application of the law to those facts to determine whether the decision is correct as a matter of law.

Id. at 93 (footnotes omitted).

Dumphord alleges that the trial court erred in finding the warrant established probable cause for the search.   As correctly noted by the Commonwealth, the affidavit in support of the search warrant is not included in the record on appeal.   Instead, Dumphord attached it to his brief as an appendix.

CR 76.12(4)(c)(vii) provides that, “[e]xcept for matters of which the appellate court may take judicial notice, materials and documents not included in the record shall not be introduced or used as exhibits in support of briefs.”  CR 76.12(8)(a) permits, but does not require, a brief to be stricken for failure to comply substantially with this rule.   Rather than strike Dumphord's brief in its entirety, we instead choose to “disregard only that portion of his brief that relies on the extra-judicial materials contained in the appendix.”  Commonwealth v. Crum, 250 S.W.3d 347, 349 (Ky.App.2008).

Although the parties and the court discussed the contents of the affidavit at the suppression hearing, because it is not in the record to substantiate the asserted claims, “the affidavit is presumed sufficient and the search warrant deemed valid.”  Greer v. Commonwealth, 455 S.W.2d 555, 556 (Ky.1970);  see also Johnson v. Commonwealth, 90 S.W.3d 39, 44 (Ky.2002), overruled on other grounds by McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky.2010).   Therefore, we cannot say the trial court erred in concluding the affidavit in support of the search warrant of Dumphord's residence established probable cause.

Next, Dumphord argues that the trial court abused its discretion by denying his CR 60.02 motion.   Dumphord contends that, at the time of his suppression motion, his counsel was unaware of a Fayette County ordinance relating to the removal of contents of trash receptacles.   Less than one month following the entry of the final judgment, Dumphord's counsel learned of the local ordinance and filed a CR 60.02 motion.   Dumphord's counsel attached an affidavit to that motion, which stated that even though all diligent efforts were made, he was unaware of the local ordinance at the time of Dumphord's motion to suppress.

“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).  CR 60.02 may be invoked in six particular instances:  “(a) mistake, inadvertence, surprise, or excusable neglect;  (b) newly discovered evidence;  (c) perjury or falsified evidence;  (d) fraud affecting the proceedings;  (e) the judgment is void;  or (f) any other reason of an extraordinary nature justifying relief.”  Kurtsinger v. Bd. of Trustees of Kentucky Ret. Sys., 90 S.W.3d 454, 456 (Ky.2002).   Before the trial court, Dumphord argued he was entitled to relief under CR 60.02(a).

As set forth in Brozowski v. Johnson, 179 S.W.3d 261 (Ky.App.2005):

[T]he purpose of CR 60.02 is to bring before a court errors which (1) had not been put into issue or passed on, and (2) were unknown and could not have been known to the moving party by the exercise of reasonable diligence and in time to have been otherwise presented to the court.   Relief pursuant to CR 60.02 should only be granted in extraordinary situations, and the “[n]egligence of an attorney is imputable to the client and is not a ground for relief under․  CR 60.02(a) or (f).”

Id. at 263 (footnotes omitted).   Having reviewed the record, we discern no evidence of “mistake, inadvertence, surprise, or excusable neglect.”   Therefore, the circuit court did not abuse its discretion in denying Dumphord's CR 60.02 motion.

CONCLUSION

For the foregoing reasons, we affirm the Fayette Circuit Court.

ALL CONCUR.

ACREE, CHIEF JUDGE: