Filed: Aug. 03, 2012
Latest Update: Aug. 03, 2012
Summary: NOT TO BE PUBLISHED OPINION KELLER, JUDGE. Christopher Major (Major) appeals, pro se, from the circuit court's order denying his motion for relief under Kentucky Rule of Civil Procedure (CR) 60.02. On appeal, Major argues that the Commonwealth violated his right to due process when it failed to identify the felonies used to support his persistent felony offender in the first degree (PFO I) indictment and that he did not meet the criteria of a PFO I. The Commonwealth argues that these issues
Summary: NOT TO BE PUBLISHED OPINION KELLER, JUDGE. Christopher Major (Major) appeals, pro se, from the circuit court's order denying his motion for relief under Kentucky Rule of Civil Procedure (CR) 60.02. On appeal, Major argues that the Commonwealth violated his right to due process when it failed to identify the felonies used to support his persistent felony offender in the first degree (PFO I) indictment and that he did not meet the criteria of a PFO I. The Commonwealth argues that these issues ..
More
NOT TO BE PUBLISHED
OPINION
KELLER, JUDGE.
Christopher Major (Major) appeals, pro se, from the circuit court's order denying his motion for relief under Kentucky Rule of Civil Procedure (CR) 60.02. On appeal, Major argues that the Commonwealth violated his right to due process when it failed to identify the felonies used to support his persistent felony offender in the first degree (PFO I) indictment and that he did not meet the criteria of a PFO I. The Commonwealth argues that these issues were previously addressed by the circuit court and this Court during litigation of Major's Kentucky Rule of Criminal Procedure (RCr) 11.42 motion. Having reviewed the record, we affirm.
FACTS
On August 10, 2007, a Jessamine County grand jury, in addition to other crimes, indicted Major for being a PFO I. The indictment did not list the underlying felony offenses used to support the PFO I charge. On October 15, 2007, the Commonwealth offered Major a plea agreement that would have resulted in a term of ten years' imprisonment. Major rejected that offer. On March 17, 2008, Major entered a guilty plea, in exchange for a term of fifteen years' imprisonment. On April 26, 2008, the court entered a judgment and imposed a sentence consistent with the plea agreement.
On September 18, 2008, Major filed an RCr 11.42 motion to vacate his sentence alleging that he did not meet the criteria to be a PFO I and that counsel was ineffective for failing to discover and/or assert that argument. The trial court denied Major's motion, and he appealed that denial to this Court. In pertinent part, this Court held as follows:
Essentially, appellant argues that his trial counsel was ineffective for advising him to plead guilty to the charge of persistent felony offender in the first degree. Appellant claims that trial counsel failed to conduct a proper investigation of appellant's prior criminal record and failed to correctly understand the persistent felony offender sentencing guidelines. Appellant believes that he was ineligible to be sentenced as a persistent felony offender in the first degree and should have only been sentenced as a persistent felony offender in the second degree.
The status of persistent felony offender in the first degree is codified in Kentucky Revised Statutes (KRS) 532.080(3)(c)(1) and reads as follows:
(3) A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies, or one (1) or more felony sex crimes against a minor as defined in KRS 17.500, and now stands convicted of any one (1) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided . . . .
. . . .
(c) That the offender:
1. Completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted[.]
Under KRS 532.080(3)(c)(1), a defendant is considered eligible for sentencing as a first-degree persistent felony offender if: (1) he is more than twenty-one years old, (2) has been convicted of two prior felonies or at least one felony sex crime against a minor, and (3) has completed service upon one of the prior felonies within five years of the instant offenses. Manning v. Com., 23 S.W.3d 610 (Ky. 2000).
The record reveals that appellant committed the instant offenses in July 2007 and was over twenty-one years of age at that time. Additionally, the record indicates that appellant was previously convicted of at least two felonies. In March 2007, appellant was convicted of the felony offense of receiving stolen property over $300, and in February 1997, appellant was convicted of the felony offense of robbery in the second degree. As appellant's last felony conviction was in March 2007, it is clear that one of the prior felonies occurred within five years of the instant charged felony. As such, appellant plainly qualified for sentencing as a persistent felony offender in the first degree.
Upon the whole, we conclude that appellant's allegation that trial counsel rendered ineffective assistance was refuted upon the face of the record and that the circuit court properly denied appellant's RCr 11.42 motion without an evidentiary hearing.
For the foregoing reasons, the order of the Jessamine Circuit Court is affirmed.
Major v. Commonwealth, 2008-CA-001855-MR, 2009 WL 4060490 (Ky. App. Nov. 25, 2009). Major did not appeal from the preceding Opinion.
On May 26, 2010, Major filed the CR 60.02 motion that is the subject of this appeal. In that motion, Major argued, in pertinent part, that his prior criminal record did not support the PFO I charge and that he was not properly advised by counsel regarding that charge. The circuit court denied Major's motion finding that Major had previously litigated the issues raised in his RCr 11.42 motion. It is from this order that Major now appeals.
STANDARD OF REVIEW
"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 principals." Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). Absent a "flagrant miscarriage of justice," the trial court will be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
ANALYSIS
The Commonwealth argues that, pursuant to the law of the case doctrine, this panel is bound by the opinion rendered on November 25, 2009. We agree.
"The law-of-the-case doctrine is a rule under which an appellate court, on a subsequent appeal, is bound by a prior decision on a former appeal in the same court and applies to the determination of questions of law and not questions of fact." Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982). This Court previously held that Major met the criteria necessary to support a PFO I conviction. That was a question of law, not a question of fact. Therefore, we are bound by that opinion, and Major's argument that he did not meet the criteria to support a PFO I conviction is without merit.
Next we address whether the Commonwealth violated Major's right to due process when it failed to list the prior felonies in his indictment. RCr 6.16 provides that a court may permit amendment of an indictment "any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Because the Commonwealth could have amended the indictment to specifically list the underlying felonies, failure to list those felonies initially was not a violation of Major's due process rights nor grounds to vacate the court's judgment.
CONCLUSION
Having reviewed the record, we discern no merit in the issues raised by Major on appeal; therefore, the circuit court's denial of his CR 60.02 motion is affirmed.
ALL CONCUR.
