KRAMER, JUDGE:
Tammy Skaggs appeals the Larue Circuit Court's order denying her RCr
Skaggs was indicted on two counts of second-degree sodomy and two counts of first-degree sexual abuse. The Commonwealth provided an offer on a plea of guilty, in which it agreed to dismiss counts one through three with prejudice in exchange for Skaggs entering a guilty plea to count four (i.e., one of the counts of first-degree sexual abuse). The Commonwealth also proffered to recommend five years of imprisonment on count four, but informed Skaggs that it would oppose probation and object to any furloughs. Skaggs moved to enter a guilty plea in accord with the Commonwealth's offer.
The circuit court entered its judgment of conviction, stating that Skaggs entered an Alford
On July 8, 2014, Skaggs moved to vacate her sentence pursuant to RCr 11.42. In her motion, she contended that: (1) the order sentencing her to conditional discharge was unconstitutional, pursuant to Jones v. Commonwealth, 319 S.W.3d 295 (Ky.2010);
The circuit court denied Skaggs's RCr 11.42 motion. In doing so, the court reasoned that RCr 11.42(2) requires the motion to "`be signed and verified by the movant,'" and that "`[f]ailure to comply with this section shall warrant a summary dismissal of the motion.'" The court found that Skaggs had not signed nor verified the motion. The circuit court also reasoned that RCr 11.42(10) required Skaggs to file her motion within three years of the Jones decision, which was rendered on September 23, 2010. The
The circuit court further noted that
The court stated it had never revoked Skaggs's five-year sentence of conditional discharge. Thus, the circuit court assumed "that the Department of Corrections has apparently determined that Skaggs has violated `post-incarceration supervision' under KRS 532.043." It held that "[w]ith Skaggs attempting to challenge the constitutionality of this statute, [the court] finds that Skaggs must notify the Attorney General of this issue." Therefore, for the aforementioned reasons, the circuit court denied Skaggs's RCr 11.42 motion.
Skaggs now appeals, contending that: (a) KRS 532.043(5) was unconstitutional and void; (b) the circuit court's order that she undergo counseling was in error; (c) she is entitled to relief pursuant to CR
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding.... A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky.2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky.2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing...."
Skaggs first argues that because six months after the judgment was entered in her case, the Kentucky Supreme Court held in Jones that KRS 532.043(5) violated the separation of powers doctrine by giving the judicial branch, as opposed to the executive branch, the power to revoke conditional discharge imposed following a period of imprisonment, the circuit court's order sentencing her to conditional discharge was unconstitutional and void.
Pursuant to RCr 11.42(10),
In the present case, the circuit court entered its judgment of conviction and its order sentencing Skaggs to conditional discharge following her imprisonment on February 3, 2010. However, Skaggs did not file her RCr 11.42 motion until July 8, 2014, which was beyond the three-year period of time in which she was permitted to file her motion, pursuant to RCr 11.42(10). To the extent that Skaggs contends the Jones case, which was entered on September 23, 2010, and upon which she bases this claim, satisfies one of the exceptions to the timeliness requirement set forth in RCr 11.42(10), her motion nevertheless was not filed within three years of the date that Jones was entered and, consequently, her motion was untimely filed pursuant to RCr 11.42(10).
Skaggs argues, however, that her motion was not time-barred. She alleges that, pursuant to CR 12.08(3),
We note that Jones held that only KRS 532.043(5), which involved the procedure for revocation of conditional discharge, was unconstitutional, and that because that provision was "severable from the remainder of the statute," the remaining provisions of KRS 532.043 remained in full force. Jones, 319 S.W.3d at 300. The remaining provisions of KRS 532.043 required people convicted of, pleading guilty to, or entering an Alford plea to certain offenses (including the one to which Skaggs entered an Alford plea) to be subject to a five-year period of conditional release following release from incarceration upon expiration of sentence or completion of parole, and to comply with all orders, education, training, and treatment required by the Department of Corrections. Thus, Skaggs's allegation that the circuit court's order sentencing her to conditional discharge was unconstitutional and void lacks merit because the court was required to order her to be subject to conditional release, as provided by the subsections of KRS 532.043 that remained in effect. Consequently, the circuit court had subject matter jurisdiction over sentencing Skaggs to the period of conditional discharge, and her claim is time-barred.
We further note that Skaggs does not contend that the circuit court revoked her conditional discharge, which it was forbidden to do pursuant to Jones, and there is no order by the circuit court revoking
Moreover, to the extent that Skaggs challenges the constitutionality of the revised KRS 532.043, she did not notify the Attorney General of her constitutional challenge to the statute before she challenged it in the circuit court, as she was required to do by KRS 418.075. See Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky.2008). Therefore, we will not review the question of whether the revised statute is constitutional.
Skaggs next alleges that the circuit court's order that she undergo counseling was in error. In its order sentencing Skaggs to conditional discharge, the court ordered that during her conditional discharge period, Skaggs must "[c]omply with all education, treatment, testing, or combination thereof required by the Department of Corrections." As previously mentioned, Skaggs entered an Alford plea, yet she contends that the counseling course requires her to admit guilt as a condition of successfully completing the course, and she alleges that this violates her constitutional right against self-incrimination.
However, as discussed supra, Skaggs brought this claim in an untimely filed
In Razor v. Commonwealth, 960 S.W.2d 472 (Ky.App.1997), this Court addressed this issue. The Appellant in Razor had entered an Alford plea, yet he was informed that in order to complete the sexual offender treatment program, he would have to admit his guilt regarding the victims. The Commonwealth moved to revoke Razor's probation for various reasons, one of which was that "he had been terminated from the sexual offender treatment program" because he "failed to admit his guilt as to all three victims or to satisfactorily participate in group therapy sessions." Razor, 960 S.W.2d at 473. The circuit court revoked Razor's probation, and he appealed, contending "that the trial court violated his right against self-incrimination by revoking his probation due to his refusal to admit that he had committed all of the crimes[.]" Razor, 960 S.W.2d at 473-74. This Court then reviewed Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), and noted that in Murphy, the United States Supreme Court held that "a sentence of probation may be revoked due to the probationer's violation of an express condition of probation by refusing to answer incriminating questions, so long as any incriminating responses which are made are not then used against the probationer in a criminal proceeding." Razor, 960 S.W.2d at 474 (discussing Murphy, 465 U.S. at 437, 104 S.Ct. at 1147, n. 7). This Court further held in Razor that pursuant to KRS 439.510 and KRS 197.440, and contrary to Razor's argument, any admission of guilt that Razor would make as part of his sexual offender treatment program could not be used to support perjury or other criminal charges against him. The Court concluded that
Razor, 960 S.W.2d at 474.
Pursuant to the reasoning in Razor, Skaggs's present claim lacks merit. The requirement that she admit guilt as a condition of successfully completing her counseling course does not violate her constitutional right against self-incrimination. As explained in Razor, Kentucky has statutes in place to prevent Skaggs's admissions of guilt that she makes during her required counseling from being used as the basis for criminal charges against her. Therefore, this claim lacks merit.
Skaggs next asserts that she is entitled to relief pursuant to CR 60.02(e) and/or (f). Specifically, she alleges that even if her RCr 11.42 motion was not timely filed, "the court may afford her relief pursuant to the provisions of CR 60.02." However, Skaggs did not raise this claim in the circuit court, and we will not consider it for the first time on appeal. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976).
Skaggs next argues that she was entitled to equitable tolling of the three-year time limit for filing her RCr 11.42 motion. However, because she did not raise this equitable tolling claim in the circuit court, we will not review it on appeal. See Commonwealth v. Carneal, 274 S.W.3d 420, 428 (Ky.2008).
Skaggs next claims that she is entitled to relief under the doctrine of palpable error. Kentucky Rules of Criminal Procedure 10.26 provides as follows: "A palpable error which affects the substantial rights of a party may be considered ... by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."
Castle v. Commonwealth, 44 S.W.3d 790, 793-94 (Ky.App.2000) (internal quotation marks and citation omitted).
In the present case, no palpable error occurred. As previously explained, the circuit court was required by statute to sentence Skaggs to a five-year period of conditional discharge, and if her post-incarceration supervision has been revoked by the Division of Probation and Parole, she needs to appeal that through the proper administrative process. Additionally, Skaggs's claim that her right against self-incrimination was violated due to the requirement she admit guilt as a condition of successfully completing her counseling course lacks merit because the admission of guilt pertaining to this case that she would make in counseling cannot be used against her, as discussed previously. Therefore, no error, palpable or otherwise, occurred regarding these claims.
Finally, Skaggs contends that her conviction violates Section 19 of the Kentucky Constitution. Section 19 prohibits the enactment of ex post facto laws. However, Skaggs did not raise this claim before the circuit court, so we will not review it for the first time on appeal. See Kennedy, 544 S.W.2d at 222.
Accordingly, the order of the Larue Circuit Court is affirmed.
ALL CONCUR.
In KRS 532.043(6), the General Assembly provided that "[t]he provisions of [KRS 532.043] shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15, 1998."