RENDERED: NOVEMBER 6, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1651-MR
RAYMOND E. WALKER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NOS. 96-CR-001249 AND 04-CR-003652
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MCNEILL, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Raymond E. Walker (“Appellant”), pro se,1 appeals
from an order of the Jefferson Circuit Court denying his motion to amend and
correct a sentence. Appellant argues that the circuit court abused its discretion in
1 Appellant proceeded pro se in the filing of the notice of appeal and the written argument. The appellate record does indicate, however, that counsel filed various motions on Appellant’s behalf during the pendency of the appeal. failing to conclude that the sentences for separate convictions should run
concurrently. Finding no error, we affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On October 31, 1997, Appellant accepted a plea offer2 on charges of
rape in the first degree, sodomy in the first degree, burglary in the first degree, and
persistent felony offender in the second degree.3 Pursuant to the plea agreement,
he was sentenced to 30 years in prison. On June 5, 2006, Appellant was convicted
on separate offenses of rape in the first degree and burglary in the first degree.4
The 2006 conviction resulted from a 1984 “cold case,” which was reopened after
advances in DNA technology linked Appellant to the offenses. Appellant was
sentenced to 40 years in prison on the second conviction.
At the time of sentencing on the second conviction, Appellant,
through counsel, argued that the 1997 and 2006 sentences should run concurrently.
The Commonwealth sought consecutive sentencing because the two convictions
arose from separate and unrelated offenses, and because Appellant failed to
participate in sex offender treatment after the first conviction. The circuit court
ordered the sentences to run consecutively for a total of 70 years in prison. On
2 96-CR-001249. 3 Kentucky Revised Statutes (“KRS”) 510.040; KRS 510.070; KRS 511.020; and KRS 532.080(2). 4 04-CR-003652.
-2- November 28, 2007, Appellant appealed the 2006 conviction to the Kentucky
Supreme Court, which affirmed by way of an unpublished opinion.5 Appellant did
not raise the sentencing issue in the 2007 appeal.
On July 26, 2019, Appellant filed with the Jefferson Circuit Court a
motion to amend, correct, and enter agreed order pursuant to plea agreement for
concurrent sentencing. Appellant argued that the circuit court abused its discretion
in failing to order the 2006 sentence to run concurrently with the 1997 sentence.
The circuit court summarily denied the motion, and this appeal followed.
ARGUMENT AND ANALYSIS
Appellant argues that the Jefferson Circuit Court committed reversible
error in failing to order the 1997 and 2006 sentences to run concurrently. He
contends that the circuit court abused its discretion by accepting the jury’s
recommendation of consecutive sentences, and that such acceptance violated the
separation of powers doctrine and the Kentucky Constitution. While
acknowledging that his 70-year sentence does not violate the statutory maximum
sentence set out in KRS 532.110, he argues that the sentence violates the spirit of
KRS Chapter 532 and the separation of powers doctrine. The apparent basis of
Appellant’s argument is that the underlying offenses of the second conviction
5 Walker v. Commonwealth, No. 2006-SC-000480-MR, 2007 WL 2404508 (Ky. Aug. 23, 2007).
-3- occurred before the offenses resulting in the first conviction. He seeks an opinion
reversing the order on appeal, and remanding the matter for concurrent sentencing.
Though Appellant’s motion attempted to seek relief under Kentucky
Rules of Criminal Procedure (“RCr”) 10.26,6 the correct procedure is to bring a
direct appeal, then seek relief via RCr 11.42, and only then to argue for relief under
Kentucky Rules of Civil Procedure (“CR”) 60.02. Gross v. Commonwealth, 648
S.W.2d 853, 856 (Ky. 1983).
“It has long been the policy of this court that errors occurring during the trial should be corrected on direct appeal, and the grounds set forth under the various subsections of CR 60.02 deal with extraordinary situations which do not as a rule appear during the progress of a trial. Although the rule does permit a direct attack by motion where the judgment is voidable—as distinguished from a void judgment—this direct attack is limited to specific subsections set out in said rule . . . .” (emphasis added) [Citation omitted].
...
Rule 60.02 is part of the Rules of Civil Procedure. It applies in criminal cases only because Rule 13.04 of the Rules of Criminal Procedure provides that “the Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure.”
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
6 RCr 10.26 addresses palpable error.
-4- direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 is not intended merely as an additional opportunity to raise Boykin defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief. Before the 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.
CR 60.02 was enacted as a substitute for the common law writ of coram nobis. The purpose of such a writ was to bring before the court that pronounced judgment errors in matter of fact which (1) had not been put into issue or passed on, (2) were unknown and could not have been known to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court, or (3) which the party was prevented from so presenting by duress, fear, or other sufficient cause. Black’s Law Dictionary, Fifth Edition, 487, 1444.
In Harris v. Commonwealth, Ky., 296 S.W.2d 700 (1956), this court held that 60.02 does not extend the scope of the remedy of coram nobis nor add additional grounds of relief. We held that coram nobis “is an extraordinary and residual remedy to correct or vacate a judgment upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were not discovered until after rendition of judgment without fault of the party seeking relief.”
Gross, 648 S.W.2d at 856. (Emphasis in original).
The alleged sentencing error was, in the language of Gross, one
occurring during trial and correctable, if at all, on direct appeal. Appellant brought
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RENDERED: NOVEMBER 6, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1651-MR
RAYMOND E. WALKER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NOS. 96-CR-001249 AND 04-CR-003652
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MCNEILL, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Raymond E. Walker (“Appellant”), pro se,1 appeals
from an order of the Jefferson Circuit Court denying his motion to amend and
correct a sentence. Appellant argues that the circuit court abused its discretion in
1 Appellant proceeded pro se in the filing of the notice of appeal and the written argument. The appellate record does indicate, however, that counsel filed various motions on Appellant’s behalf during the pendency of the appeal. failing to conclude that the sentences for separate convictions should run
concurrently. Finding no error, we affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On October 31, 1997, Appellant accepted a plea offer2 on charges of
rape in the first degree, sodomy in the first degree, burglary in the first degree, and
persistent felony offender in the second degree.3 Pursuant to the plea agreement,
he was sentenced to 30 years in prison. On June 5, 2006, Appellant was convicted
on separate offenses of rape in the first degree and burglary in the first degree.4
The 2006 conviction resulted from a 1984 “cold case,” which was reopened after
advances in DNA technology linked Appellant to the offenses. Appellant was
sentenced to 40 years in prison on the second conviction.
At the time of sentencing on the second conviction, Appellant,
through counsel, argued that the 1997 and 2006 sentences should run concurrently.
The Commonwealth sought consecutive sentencing because the two convictions
arose from separate and unrelated offenses, and because Appellant failed to
participate in sex offender treatment after the first conviction. The circuit court
ordered the sentences to run consecutively for a total of 70 years in prison. On
2 96-CR-001249. 3 Kentucky Revised Statutes (“KRS”) 510.040; KRS 510.070; KRS 511.020; and KRS 532.080(2). 4 04-CR-003652.
-2- November 28, 2007, Appellant appealed the 2006 conviction to the Kentucky
Supreme Court, which affirmed by way of an unpublished opinion.5 Appellant did
not raise the sentencing issue in the 2007 appeal.
On July 26, 2019, Appellant filed with the Jefferson Circuit Court a
motion to amend, correct, and enter agreed order pursuant to plea agreement for
concurrent sentencing. Appellant argued that the circuit court abused its discretion
in failing to order the 2006 sentence to run concurrently with the 1997 sentence.
The circuit court summarily denied the motion, and this appeal followed.
ARGUMENT AND ANALYSIS
Appellant argues that the Jefferson Circuit Court committed reversible
error in failing to order the 1997 and 2006 sentences to run concurrently. He
contends that the circuit court abused its discretion by accepting the jury’s
recommendation of consecutive sentences, and that such acceptance violated the
separation of powers doctrine and the Kentucky Constitution. While
acknowledging that his 70-year sentence does not violate the statutory maximum
sentence set out in KRS 532.110, he argues that the sentence violates the spirit of
KRS Chapter 532 and the separation of powers doctrine. The apparent basis of
Appellant’s argument is that the underlying offenses of the second conviction
5 Walker v. Commonwealth, No. 2006-SC-000480-MR, 2007 WL 2404508 (Ky. Aug. 23, 2007).
-3- occurred before the offenses resulting in the first conviction. He seeks an opinion
reversing the order on appeal, and remanding the matter for concurrent sentencing.
Though Appellant’s motion attempted to seek relief under Kentucky
Rules of Criminal Procedure (“RCr”) 10.26,6 the correct procedure is to bring a
direct appeal, then seek relief via RCr 11.42, and only then to argue for relief under
Kentucky Rules of Civil Procedure (“CR”) 60.02. Gross v. Commonwealth, 648
S.W.2d 853, 856 (Ky. 1983).
“It has long been the policy of this court that errors occurring during the trial should be corrected on direct appeal, and the grounds set forth under the various subsections of CR 60.02 deal with extraordinary situations which do not as a rule appear during the progress of a trial. Although the rule does permit a direct attack by motion where the judgment is voidable—as distinguished from a void judgment—this direct attack is limited to specific subsections set out in said rule . . . .” (emphasis added) [Citation omitted].
...
Rule 60.02 is part of the Rules of Civil Procedure. It applies in criminal cases only because Rule 13.04 of the Rules of Criminal Procedure provides that “the Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure.”
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
6 RCr 10.26 addresses palpable error.
-4- direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 is not intended merely as an additional opportunity to raise Boykin defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief. Before the 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.
CR 60.02 was enacted as a substitute for the common law writ of coram nobis. The purpose of such a writ was to bring before the court that pronounced judgment errors in matter of fact which (1) had not been put into issue or passed on, (2) were unknown and could not have been known to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court, or (3) which the party was prevented from so presenting by duress, fear, or other sufficient cause. Black’s Law Dictionary, Fifth Edition, 487, 1444.
In Harris v. Commonwealth, Ky., 296 S.W.2d 700 (1956), this court held that 60.02 does not extend the scope of the remedy of coram nobis nor add additional grounds of relief. We held that coram nobis “is an extraordinary and residual remedy to correct or vacate a judgment upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were not discovered until after rendition of judgment without fault of the party seeking relief.”
Gross, 648 S.W.2d at 856. (Emphasis in original).
The alleged sentencing error was, in the language of Gross, one
occurring during trial and correctable, if at all, on direct appeal. Appellant brought
-5- a direct appeal to the Kentucky Supreme Court and did not raise this issue. If
Appellant’s motion is characterized as seeking relief under RCr 11.42, it was not
timely. Appellant filed the motion some 13 years after the 2006 judgment
imposing consecutive sentences, and well beyond the three-year window for such
motions set out in RCr 11.42(10).7
The Commonwealth asserts that Appellant’s motion is akin to a claim
for CR 60.02 relief. Such relief is not available to Appellant because the alleged
sentencing error could have been brought on direct appeal or thereafter by way of
RCr 11.42. Arguendo, even if Appellant’s claim of error were properly before us
via CR 60.02, it does not constitute a special circumstance to justify the
extraordinary remedy of CR 60.02, Gross, 648 S.W.2d at 856, and was not brought
“within a reasonable time” after the judgment. CR 60.02(f).
Finally, Appellant’s separation of powers and related constitutional
arguments are misplaced and non-persuasive.
Section 27 of the Kentucky Constitution mandates separation among the three branches of government and Section 28 specifically prohibits incursion of one branch of government into the powers and functions of the others. The essential purpose of separation of powers is to allow for independent functioning of each coequal branch of government within its assigned sphere of
7 RCr 11.42(10) sets out two exceptions to the three-year period, neither of which applies herein. The first exception is for claims predicated on facts which could not have been known at the time of judgment through the exercise of due diligence, and the second is for the establishment of a constitutional right with retroactive application after the close of the three-year period.
-6- responsibility, free from risk of control, interference, or intimidation by other branches.
Coleman v. Campbell County Library Board of Trustees, 547 S.W.3d 526, 533-34
(Ky. App. 2018) (internal quotation marks and citations omitted). The sentencing
order, even were it properly before us, does not implicate the independent
functioning of the coequal branches of government.
CONCLUSION
The issue on appeal was known to Appellant at the time of sentencing,
and should have been raised, if at all, on direct appeal to the Kentucky Supreme
Court. Gross, 648 S.W.2d at 856. Even if it were properly before us, Appellant
has not demonstrated entitlement to relief under either RCr 11.42 or CR 60.02.
Accordingly, we find no error. For the foregoing reasons, we affirm the order of
the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Raymond Earl Walker, pro se Daniel Cameron Burgin, Kentucky Attorney General of Kentucky
Todd Dryden Ferguson Assistant Attorney General Frankfort, Kentucky
-7-