Thomas D. Lee v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 13, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0685-MR
THOMAS D. LEE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CR-003280
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
MAZE, JUDGE: Thomas D. Lee appeals from an order of the Jefferson Circuit
Court denying his motion to vacate his conviction or sentence pursuant to RCr1
1
Kentucky Rules of Criminal Procedure.
11.42. In the absence of any record of such motion pending before the trial court,
we vacate the order denying relief.
The relevant facts of this matter are as follows: On December 15,
2015, a Jefferson County grand jury indicted Lee on one count each of first-degree
assault, operating a motor vehicle under the influence of intoxicants, second
offense (DUI 2d), operating a motor vehicle while license is suspended for DUI,
first offense, and possession of marijuana. On March 27, 2018, Lee accepted the
Commonwealth’s offer on a plea of guilty to a single count of second-degree
assault, DUI 2d with aggravating circumstances, operating a motor vehicle while
license is suspended for DUI, first offense with aggravating circumstances, and
possession of marijuana. Pursuant to the Commonwealth’s recommendation, the
trial court sentenced Lee to a total of eight years’ imprisonment, to run
consecutively to a sentence imposed under another indictment. The court also
imposed a license suspension, fines, costs, and restitution as recommended by the
Commonwealth.
On September 12, 2019, Lee filed a pro se motion to modify his
sentence or vacate his conviction under CR2 60.02(a), (e), and (f). He argued that
the indictment for first-degree assault was defective because he had never received
2
Kentucky Rules of Civil Procedure.
-2-
a citation for that charge. He also asserted that the indictment was defective
because the district court had dismissed one of the charges prior to its submission
to the grand jury. Finally, Lee asserted that the DUI charge negated the element of
intent necessary to prove either first or second-degree assault.
On September 13, 2019, the trial court denied Lee’s motion without
conducting an evidentiary hearing or appointing counsel. In its order, the court
found that Lee’s motion failed to state any grounds for relief under CR 60.02.
While Lee’s written motion did not assert grounds for relief under RCr 11.42, the
trial court entered a separate order on March 9, 2020, denying relief on that ground
as well. This appeal followed.
As noted, Lee’s written motion only asserted grounds for relief under
CR 60.02. But at some point in the proceedings, the trial court interpreted his
motion as also seeking grounds for relief under RCr 11.42. In his notice of appeal,
Lee only identified the March 9, 2020 order denying his motion for relief under
RCr 11.42. And in his reply brief, Lee states that he waived his right to appeal the
denial of the CR 60.02 motion. In any event, Lee did not file a timely notice of
appeal from the trial court’s order denying that motion. See CR 73.02(2).
In his brief to this Court, Lee re-casts those grounds as a basis to
assert that his trial counsel provided ineffective assistance in advising him to plead
guilty without asserting these defenses. We first note that in Gross v.
-3-
Commonwealth, 648 S.W.2d 853 (Ky. 1983), the Kentucky Supreme Court set out
the different roles of these motions in the post-conviction process:
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[3] 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.
Id. at 856 (footnote omitted).
While there may be some overlap between issues that can be raised on
a CR 60.02 motion and issues that can be raised on an RCr 11.42 motion, the two
motions are not interchangeable. Lee’s reply brief refers to an RCr 11.42 motion
allegedly filed as of February 21, 2020. However, no such motion appears in
either the record or as filed on the clerk’s docket page. The trial court’s order of
March 9, 2020 indicates that it was aware of that motion, but the court can only
speak through its written orders and records. Kindred Nursing Centers Ltd.
Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010).
3
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
-4-
The clear language of RCr 11.42(2) requires a written motion signed
and verified by the movant. It is possible that Lee submitted such a motion, but it
was misfiled or otherwise failed to be entered into the record. But it is equally
likely that either the trial court interpreted Lee’s prior CR 60.02 motion as seeking
relief under RCr 11.42 or the trial court was responding to some other inquiry not
appearing in the record. The complete absence of any record of the motion leaves
this Court with no basis to determine why the trial court entered the order denying
RCr 11.42 relief.
Under the circumstances, we must conclude that there was no RCr
11.42 motion pending before the trial court. As a result, the trial court erred by
ruling on a motion which was not before it. Consequently, we will vacate the trial
court’s order denying relief under RCr 11.42. In the absence of any pending
motion, no further action is necessary.
Accordingly, we vacate the March 9, 2020 order of the Jefferson
Circuit Court denying Lee’s RCr 11.42 motion.
ALL CONCUR.
-5-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Thomas D. Lee, pro se Daniel Cameron
Burgin, Kentucky Attorney General of Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
-6-