Opinion
NO. 2012-CA-001100-MR
05-03-2013
JONATHAN CHRISTOPHER HALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Jonathan C. Hall, Pro se Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NOS. 09-CR-00269, 09-CR-00270 & 09-CR-00271
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Jonathan Hall appeals, pro se, the May 10, 2012 order of the Pulaski Circuit Court denying his motion for compassionate leave. We affirm.
On October 15, 2009, Hall pleaded guilty to manufacturing methamphetamine and first-degree trafficking in a controlled substance, and entered an Alford plea of guilty to a second count of manufacturing methamphetamine. He was sentenced to twenty-five years' imprisonment on November 19, 2009.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Hall then filed a series of post-conviction motions challenging his conviction and sentence, all to no avail, including a motion for relief under Kentucky Rules of Civil Procedure (CR) 60.02, a motion to vacate his sentence under Kentucky Rules of Criminal Procedure (RCr) 11.42, and a writ of mandamus. Hall also sought, and was denied, shock probation on two occasions.
Afterward, on May 4, 2012, Hall moved for "compassionate leave, acceleration of supervised release or a resentencing." Hall requested that his sentence be modified from imprisonment to home incarceration so he could care for his elderly and infirm grandparents. Hall cited no authority to support his motion. The Commonwealth opposed it.
The circuit court construed Hall's motion as another request for shock probation. By order entered May 11, 2012, the circuit court denied the motion as untimely. The circuit court reiterated that it only retained jurisdiction to rule on a request for shock probation if made no later than 180 days after the defendant's incarceration. Hall timely appealed.
Before this Court, Hall claims he did not file his motion for compassionate leave under KRS 439.265, "but rather under the provisions of a basic 'sentence modification' based upon the mitigations of 'compassion' which can bestow jurisdictional authority under KRS 439.265 to 'modify' one's sentence if justified under 'extraordinary' circumstances." (Appellant's Brief at 3). Hall also asserts he has demonstrated role-model behavior and attained numerous achievements since being incarcerated, and reminds this Court that the crimes to which he pleaded guilty are non-violent offenses. Furthermore, Hall proffers that an alternative sentence - such as a community-based treatment program, probation, home incarceration, or a split sentence - would afford Hall the opportunity to become a productive member of society and uphold the spirit of House Bill 463, which seeks progressive sentencing for non-violent offenders.
HB 463 modernizes Kentucky drug laws by appreciably reducing the penalties, including prison time, that may be imposed for low-risk, non-violent offenders trafficking in and/or possessing certain drugs, including methamphetamine. See Rogers v. Commonwealth, 366 S.W.3d 446, 455 (Ky. 2012). To the extent Hall relies on HB 463 in support of his argument, we need only point out that HB 463 did not take effect until July 2011, almost two years after judgment was pronounced against Hall. The provisions of HB 463 do not apply retroactively, and cannot form the basis upon which Hall seeks to amend his sentence. See id. at 456.
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While we sympathize with Hall's plight and applaud his achievements, we simply cannot say the circuit court erroneously denied Hall's motion for compassionate leave. KRS 439.265 contains no authority for a trial court to amend a sentence upon mitigations of compassion. Instead, KRS 439.265 bestows upon the trial court jurisdiction "only for the limited purpose of considering shock probation." Prater v. Commonwealth, 82 S.W.3d 898, 906 (Ky. 2002) (footnote omitted) (emphasis added). Absent the limited jurisdiction in KRS 439.265, "if no appeal is taken from the judgment, the trial court loses jurisdiction to alter, amend, or vacate the judgment ten (10) days after its entry." Id.; Commonwealth v. Gaddie, 239 S.W.3d 59, 62 (Ky. 2007) ("[T]rial court loses jurisdiction to amend a judgment in a criminal case ten days after its entry."); Commonwealth v. Gross, 936 S.W.2d 85, 87-88 (Ky. 1996) (judgment could not be amended twenty-one months later to probate the sentence).
If, as construed by the circuit court, Hall's motion was one for shock probation, the circuit court lacked jurisdiction to consider it because, as the circuit court correctly noted, it may only afford a defendant shock probation if such request is made no later than 180 days after the defendant has been incarcerated. KRS 439.265(1). Here, when Hall filed his motion for compassionate leave in May 2012, he had been incarcerated 942 days. His motion was indeed untimely.
Broadly and leniently interpreting Hall's motion and his arguments to this Court, Hall may be seeking relief under CR 60.02(f). The rule permits the circuit court to relieve a party from a final judgment or order if the party presents a "reason of an extraordinary nature justifying relief." CR 60.02(f). "What constitutes a reason of extraordinary nature is left to judicial construction." Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999). Unfortunately for Hall, personal and family hardships did not amount to "a reason of an extraordinary nature[.]" Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985) (family hardships due to the defendant's incarceration, despite the degree of severity, are not "so extraordinary that a 'substantial miscarriage of justice' will result and relief under CR 60.02(f) would be justified").
Hall has presented no grounds justifying disturbance of the Pulaski Circuit Court's May 11, 2012 order. We affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Jonathan C. Hall, Pro se
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky