Hatchett v. Commonwealth

KRAMER, JUDGE

NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 07-CR-000829 OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON, AND KRAMER, JUDGES. KRAMER, JUDGE: Leonard Hatchett appeals the Jefferson Circuit Court's order denying his CR 60.02 motion for relief from the court's judgment convicting him of flagrant non-support. After a careful review of the record, we affirm because Hatchett's claim that his sentence was served out on probation lacks merit, and his claim regarding his conviction for being a first-degree persistent felony offender (PFO-1st) is not properly before us in this appeal.

Hatchett was indicted on the charge of flagrant non-support for failing to provide support that he reasonably could give to his minor child. The Commonwealth provided an offer on a plea of guilty, in which it offered to recommend a sentence of four years of imprisonment, to be probated for a minimum of five years or until restitution of all arrearage had been paid in full, in exchange for Hatchett's guilty plea. Hatchett moved to enter a guilty plea in accord with the Commonwealth's offer.

The circuit court accepted Hatchett's guilty plea to the charge of flagrant non-support. On February 7, 2008, the court's judgment was entered, sentencing Hatchett to four years of imprisonment to be served concurrently, which was probated for five years, so long as he complied with the conditions of his probation. The conditions of his probation included, inter alia, that he "remain on good behavior and refrain from any further violation of the law in any respect," and that he "remain drug and alcohol free and submit to random drug and alcohol urinalysis testing at [Hatchett's] expense."

In March 2010, the circuit court entered an order to arrest Hatchett. The basis for doing so was that the court had reason to believe Hatchett had violated the terms of his probation because the court had received a Special Supervision Report stating that he had been charged earlier that month with Theft by Unlawful Taking/Disposition All Others.

In late 2011, a violation of supervision report was prepared regarding Hatchett. It stated that in October 2011, he was charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs with a 0.08 Aggravator, First Offense; First-Degree Possession of a Controlled Substance, First Offense -Cocaine; Possession of Marijuana; and Obscuring the Identity of a Machine $500>$10,000.

In February 2012, the Commonwealth moved to revoke Hatchett's probation. The Commonwealth did so on the grounds that Hatchett had not paid the amount of restitution he was supposed to have paid, and Hatchett had violated the terms of his probation, including the use of a controlled substance (cocaine) and a new felony arrest. Then, in April 2012, the Commonwealth filed a supplement to its motion to revoke, in which it alleged there were supplemental grounds to support its motion to revoke. The supplemental grounds were contained within a new violation of supervision report, which stated that Hatchett had a new felony arrest. It alleged that in March 2012, Hatchett was arrested and charged with First-degree Trafficking in a Controlled Substance, First Offense (less than four grams of Cocaine) and "Drug Paraphernalia - Buy/Possess." The circuit court entered an order revoking Hatchett's probation on August 14, 2012.

In April 2014, Hatchett filed his CR 60.02 motion for relief from the court's judgment. In that motion, he contended that after his probation was revoked and he was returned to prison, the Department of Corrections changed his four-year concurrent sentence to run consecutively. Hatchett also alleged that he was improperly convicted of PFO-1st and that his plea agreement was therefore illegal. The circuit court denied Hatchett's motion.

Hatchett now appeals, contending that: (a) the circuit court abused its discretion when it revoked his probation for his flagrant non-support conviction after his sentence was already served out on probation; and (b) the circuit court abused its discretion when it convicted the appellant of PFO-1st.

On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id. "The [CR 60.02] 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." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Additionally, claims brought under CR 60.02(a), (b), or (c) must be brought within one year after the judgment is entered, and claims brought under the remaining sections of CR 60.02 must be brought within a "reasonable time." See CR 60.02.

Hatchett first asserts that the circuit court abused its discretion when it revoked his probation for his flagrant non-support conviction after his sentence was already served out on probation. Specifically, he contends that his four years of probation had expired by the time the circuit court revoked his probation and he was returned to prison to serve out his sentence. Thus, Hatchett alleges that the circuit court did not have jurisdiction to revoke his probation on the flagrant non-support conviction.

Hatchett's claim is misplaced. He claims he was sentenced to four years of probation and that his probation had expired before the circuit court revoked it. However, this is incorrect. As mentioned previously, Hatchett was sentenced on February 7, 2008, to four years of imprisonment, which was probated for five years, so long as he complied with the conditions of his probation. Thus, he was sentenced to five years of probation, not four, as Hatchett alleges. Additionally, the court revoked Hatchett's probation on August 14, 2012, which was during the five-year period of probation. Consequently, the court had jurisdiction to revoke Hatchett's probation, and Hatchett's assertion lacks merit.

Hatchett also contends that the circuit court abused its discretion when it convicted him of PFO-1st. However, his allegation is misplaced because he was not convicted of PFO-1st in this case. Rather, he was only convicted of flagrant non-support in the case at hand, and that is the only conviction before us in this appeal. Therefore, any PFO-1st conviction Hatchett may have received was in a different case and it is not properly before us in this appeal.

Accordingly, the order of the Jefferson Circuit Court is affirmed.

ALL CONCUR BRIEF FOR APPELLANT: Leonard Hatchett
Pro se

Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky