Promise Wilcox v. Commonwealth of Kentucky ( 2020 )

RENDERED: AUGUST 28, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000353-MR
PROMISE WILCOX APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 09-CR-001933
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
MAZE, JUDGE: Promise Wilcox appeals the denial of his motions pursuant to
CR1 60.02 and RCr2 10.26 by which he sought to vacate a judgment based upon his
1
Kentucky Rule of Civil Procedure.
2
Kentucky Rule of Criminal Procedure.
guilty plea to three counts of first-degree sexual abuse of a victim less than twelve
years of age. We affirm.
In 2009, while still a juvenile, Wilcox was referred to the Jefferson
County grand jury for proceedings as a youthful offender. The grand jury
subsequently indicted Wilcox on two counts of first-degree sodomy and one count
of first-degree sexual abuse stemming from his conduct involving a five-year-old
neighbor child whom he was babysitting. Wilcox and the Commonwealth
thereafter reached a settlement under which the Commonwealth, in exchange for
Wilcox’s plea of guilt, agreed to amend the sodomy charges down to first-degree
sexual abuse and to recommend a sentence of ten years on each of the three counts,
to run concurrently for a total of ten years’ imprisonment. Because Wilcox was
still a juvenile when final judgment was entered on his plea in 2010, he was
originally committed to the Department of Juvenile Justice.
After his eighteenth birthday, Wilcox was returned to Jefferson
Circuit Court and in August 2011, was sentenced as an adult to serve ten years’
imprisonment. Although he was granted shock probation in November 2011,
Wilcox’s probation was revoked in March 2015 for, among other violations, failure
to complete sexual offender treatment. In 2018, Wilcox filed the motions which
are the subject of this appeal alleging that the Jefferson District Court did not
-2-
properly consider the factors set out in KRS3 640.010 in transferring the
proceeding to circuit court and that the Commonwealth failed to meet its burden of
proof concerning the charges against him.
In denying Wilcox’s motions, the circuit court concluded that his
claims of error failed both on their merits and as barred by the doctrine of laches.
Citing the district court’s findings regarding the seriousness of the offenses
charged and the young age of the victim, the circuit court held that the dictates of
KRS 640.010(2)(c) had been satisfied in that two or more of the statutory factors
weighed in favor of transfer. Thus, the circuit court concluded that Wilcox failed
to demonstrate the extraordinary showing required to justify CR 60.02 relief. With
regard to Wilcox’s claim concerning the sufficiency of the evidence against him,
the circuit court cited Taylor v. Commonwealth, 724 S.W.2d 223 (Ky. App. 1986),
for the proposition that by pleading guilty a defendant forfeits the right to
challenge the sufficiency of the evidence against him at some later date.
Finally, the circuit court held that the doctrine of laches would also
foreclose Wilcox’s claims, finding that a delay of over eight years to seek relief for
known grievances constituted an unreasonable delay under the circumstances.
This appeal followed.
3
Kentucky Revised Statute.
-3-
Like the circuit court, we commence our analysis with an examination
of the requirements for obtaining CR 60.02 relief. Our Supreme Court in Gross v.
Commonwealth settled any question as to when such extraordinary relief is
available:
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
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.
648 S.W.2d 853, 856 (Ky. 1983) (emphases added). Because Wilcox offers no
explanation as to why his claims could not have been pressed via RCr 11.42, he is
not entitled to avail himself of the extraordinary remedy provided in CR 60.02.
Even had such relief been available, Wilcox’s claims fail on their
merits. We concur in the circuit court’s conclusion that the district court fully
complied with the dictates of KRS 640.010 and that Wilcox’s voluntary guilty plea
waived all defenses other than that the indictment charges no offense. See Centers
v. Commonwealth, 799 S.W.2d 51, 55 (Ky. App. 1990).
-4-
Finally, our conclusions regarding the availability of CR 60.02 relief
foreclose Wilcox’s contention that he is entitled to avail himself of the palpable
error rule. RCr 10.26 provides:
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or 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.
We again emphasize that Wilcox forfeited the right to challenge the evidence
against him by pleading guilty. In Taylor, this Court cogently explained the
rationale underpinning that principle:
Entry of a voluntary, intelligent plea of guilty has long
been held by Kentucky Courts to preclude a post-
judgment challenge to the sufficiency of the evidence.
E.g. King v. Commonwealth, Ky., 408 S.W.2d 622, 623
(1966); Harris v. Commonwealth, Ky., 441 S.W.2d 143
(1969); Bartley v. Commonwealth, Ky., 463 S.W.2d 321
(1971). The reasoning behind such a conclusion is
obvious. A defendant who elects to unconditionally
plead guilty admits the factual accuracy of the various
elements of the offenses with which he is charged. By
such an admission, a convicted appellant forfeits the right
to protest at some later date that the state could not have
proven that he committed the crimes to which he pled
guilty. To permit a convicted defendant to do so would
result in a double benefit in that defendants who elect to
plead guilty would receive the benefit of the plea bargain
which ordinarily precedes such a plea along with the
advantage of later challenging the sentence resulting
from the plea on grounds normally arising in the very
trial which defendant elected to forego.
-5-
724 S.W.2d at 225. Thus, having freely entered a guilty plea, Wilcox cannot now
invoke the palpable error rule to challenge the sufficiency of the evidence against
him. Because the circuit court did not err in its determination that Wilcox’s CR
60.02 claims failed on their merits, there can be no demonstration of manifest
injustice under RCr 10.26.
Accordingly, we affirm the judgment of the Jefferson Circuit Court.
CLAYTON, CHIEF JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Promise Wilcox, pro se Daniel Cameron
Burgin, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
-6-