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Chatman v. Commonwealth

Court of Appeals of Kentucky

November 30, 2018



          BRIEFS FOR APPELLANT: Hosea Chatman, pro se West Liberty, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky




          Hosea Chatman appeals, pro s, from the McCracken Circuit Court's order denying his motion to vacate sentence under Kentucky Rule of Civil Procedure (CR) 60.02, entered February 12, 2018. We affirm the circuit court.

         A grand jury indicted Chatman on March 5, 2010, on several charges arising from a robbery of a check-cashing business.[1] Chatman pleaded guilty to second-degree robbery, [2] second-degree fleeing or evading police (on foot), [3]criminal attempt to disarm a peace officer, [4] third-degree assault, [5] third-degree criminal mischief, [6] resisting arrest, [7] and being a second-degree persistent felony offender (PFO).[8] He also entered an Alford[9] plea to two counts of kidnapping.[10]According to the terms of the plea agreement, Chatman was to receive a sentence of twenty years on each kidnapping charge, which were to run concurrently with each other. The sentences on the other charges were all less than twenty years and to run concurrently. Due to the second-degree PFO charge, Chatman was to receive an enhanced forty-year sentence in lieu of the sentence of twenty years. On October 26, 2011, the trial court sentenced Chatman to a total of forty years' imprisonment.

         Chatman has extensively litigated his case following conviction. The lengthy procedural history was set out in Chatman's prior appeal of the denial of his CR 60.02 motion, [11] as follows:

Because he waived his right to direct appeal as part of his unconditional guilty plea, Chatman filed a motion for post-conviction relief under [Kentucky Rule of Criminal Procedure (RCr)] 11.42 and CR 60.02 on May 16, 2012. Chatman's motion alleged an improper denial of a Faretta[12] hearing and ineffective assistance of counsel. This motion was denied by the circuit court, and the circuit court ruling was affirmed by a panel of this court on January 17, 2014, with discretionary review denied by the Kentucky Supreme Court on February 11, 2015.[13]On July 11, 2014, Chatman filed another motion for post-conviction relief under CR 60.02, alleging prosecutorial misconduct, ineffective assistance of counsel, and that the Commonwealth violated his plea agreement by not returning his glasses. On July 27, 2015, the circuit court denied Chatman's motion on grounds that he had already filed unsuccessful post-conviction motions, and that he was not entitled to argue issues which could have been and should have been raised previously.

Chatman II, 2016 WL 6134899, at *1 (footnotes added).

         In Chatman II, Chatman unsuccessfully raised five issues relating to the denial of his CR 60.02 motion: (1) the circuit court erred in finding the Commonwealth's failure to abide by the plea agreement did not permit Chatman to withdraw his guilty plea; (2) the circuit court erred in finding his due process rights were not violated by the denial of a suppression motion; (3) the circuit court erred in finding no violation of Chatman's right to present a defense pursuant to Faretta; (4) ineffective assistance of appellate counsel, and (5) the circuit court denied Chatman due process by denying his CR 60.02 motion without an evidentiary hearing. This Court affirmed the circuit court's denial of the CR 60.02 motion on October 21, 2016, concluding Chatman should have raised his arguments in his earlier post-conviction motions and his claims were without merit.

         Undaunted, Chatman filed the present CR 60.02 motion in the circuit court on January 2, 2018. The circuit court denied the motion, having found Chatman failed to meet his burden pursuant to CR 60.02. This appeal followed.

         The standard of review concerning a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Furthermore, "a CR 60.02 movant must demonstrate why he is entitled to this special, extraordinary relief." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).

         Chatman claims the trial court erred in sentencing him to an unlawful term of imprisonment for the lower charges on his guilty plea because his record with the Department of Corrections shows he received a forty-year sentence for all the related charges. The Commonwealth argues the trial court correctly denied Chatman's motion because of its duplicative and successive nature. While it is likely his motion is successive, we need not consider this. ...

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