Andreius Wimzie v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 27, 2022
• Docket: 2021 CA 001084
• Status: Unknown

Opinion

RENDERED: OCTOBER 28, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-1084-MR

ANDREIUS WIMZIE APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE GREGORY M. BARTLETT, JUDGE ACTION NO. 15-CR-00943

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.

CLAYTON, CHIEF JUDGE: Andreius Wimzie (“Wimzie”) appeals from the

Kenton Circuit Court’s order denying his motion to vacate judgment filed pursuant

to Kentucky Rule of Civil Procedure (“CR”) 60.02. We affirm. FACTUAL AND PROCEDURAL BACKGROUND

Wimzie entered a guilty plea to two counts of trafficking in a

controlled substance and being a persistent felony offender (“PFO”) in the second

degree. The facts concerning Wimzie’s arrest are outlined in the Covington Police

Department’s criminal complaint:

[O]n multiple occasions from . . . 7-23-15 to 8-23-15 the Affiant utilized a Confidential Informant (CI) to purchase heroin from a suspect known as “Dred,” later identified as [Wimzie]. . . . The substances purchased in all instances tested positive for heroin through field tests conducted by the Affiant. The substances were sent to the Kentucky State Laboratory for further testing and also indicated positive for heroin. The cumulative weight of all of the controlled buys of heroin purchased from Wimzie was in excess of two grams.

[O]n multiple occasions from . . . 7-7-15 to 8-23-15, the Affiant utilized a [CI] to purchase crack cocaine from . . . [Wimzie]. . . . The substances were sent to the Kentucky State Laboratory for further testing and also indicated positive for cocaine. The cumulative weight of all of the controlled buys of cocaine from Wimzie was in excess of four grams.

On December 3, 2015, the Kenton Circuit Court grand jury indicted

Wimzie, charging him with two counts of first-degree trafficking in a controlled

substance and one count of being a PFO in the first degree.

On March 23, 2016, Wimzie entered a guilty plea for the two first-

degree trafficking charges and an amended charge of being a PFO in the second

degree. Wimzie executed a motion to enter a guilty plea which recited that he

-2- understood the charges and any possible defenses; the rights he was waiving by his

guilty plea; that his attorney had fully informed him about his case; and that there

was nothing about the process he did not understand.

The prosecutor recommended concurrent ten-year sentences for each

trafficking count and a consecutive five-year sentence for the PFO count, for a

total fifteen-year sentence. On August 15, 2016, the circuit court sentenced

Wimzie in accordance with the plea agreement.

On May 6, 2019, Wimzie filed a motion to vacate, set aside, or correct

sentence under Rule of Criminal Procedure (“RCr”) 11.42, or in the alternative, to

hold an evidentiary hearing. In his motion, Wimzie alleged that his trial counsel

had been ineffective during the guilty plea proceedings for: (1) failing to object

regarding the weight of the controlled substances charged in each trafficking count;

(2) inducing Wimzie to plead guilty and advising him to accept the fifteen-year

plea offer; and (3) claiming that trial counsel improperly advised him as to the

potential maximum sentence he could receive on the original three charges. The

circuit court denied Wimzie’s motion, and Wimzie did not appeal.

In June 2021, Wimzie filed the present motion to vacate judgment

under CR 60.02(e) and (f), alleging that an error existed within the portion of his

PFO sentence. The circuit court denied that motion, and this appeal followed.

We will discuss further facts as they become relevant to the Opinion.

-3- ANALYSIS

This Court reviews orders on CR 60.02 motions for abuse of

discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation

omitted). “The test for abuse of discretion is whether the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Foley v.

Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation omitted).

On appeal, Wimzie argues that his sentence was erroneous because it

did not specify a sentence for the underlying trafficking charges. Wimzie was

sentenced to 10 years on two counts of trafficking to serve concurrently which was

enhanced to 15 years pursuant to being a persistent felony offender in the second

degree. The sentence was legally imposed. Furthermore, under Kentucky law,

RCr 11.42 forecloses Wimzie from raising any questions under CR 60.02 that are

“issues that could reasonably have been presented” by RCr 11.42 proceedings.

Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983)). As further stated in

Gross, “[t]he 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 . . . RCr 11.42, and

thereafter in CR 60.02.” Id. at 856.

Thus, “[o]ur courts do not favor successive collateral challenges to a

final judgment of conviction which attempt to relitigate issues properly presented

-4- in a prior proceeding.” Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App.

2009).

In this case, Wimzie had an opportunity to attack the judgment under

RCr 11.42 if he thought the circuit court entered it improperly. RCr 11.42 provides

a procedure for a motion to vacate, set aside, or correct sentence for “a prisoner in

custody under sentence or a defendant on probation, parole or conditional

discharge.” Moreover, RCr 11.42 provides that “the motion shall state all grounds

for holding the sentence invalid of which the movant has knowledge. Final

disposition of the motion shall conclude all issues that could reasonably have been

presented in the same proceeding.” (Emphasis added.)

Additionally, Wimzie’s appellate brief raises three additional

arguments that he did not raise in his CR 60.02 motion. However, we may not

review those arguments because, in the absence of a ruling by the trial court, an

appellate court cannot review the alleged error. RCr 9.22; Todd v. Commonwealth,

716 S.W.2d 242, 248 (Ky. 1986).

CONCLUSION

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

ALL CONCUR.

-5- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Andreius Rufus Wimzie, pro se Daniel Cameron Lexington, Kentucky Attorney General of Kentucky

Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

-6-