Commonwealth of Kentucky Court of Appeals

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1 RENDERED: SEPTEMBER 19, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR & NO CA MR & NO CA MR SHARAYA M. BECKHAM APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 08-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, LAMBERT, AND TAYLOR, JUDGES. LAMBERT, JUDGE: These consolidated appeals are brought by Sharaya M. Beckham from three orders of the Jefferson Circuit Court. She argues that the circuit court erred in (1) denying her Kentucky Rules of Criminal Procedure (RCr)

2 11.42 motion; (2) allowing the Commonwealth s attorney to participate in probation revocation proceedings; and (3) denying her motion to vacate the probation revocation order. We affirm. After extensively damaging a car belonging to her former boyfriend s mother, Beckham was charged with criminal mischief in the first degree, a felony. In exchange for a plea of guilty to a reduced charge of criminal mischief in the second degree, a misdemeanor, the Commonwealth agreed to recommend a sentence of 365 days, conditionally discharged for two years. Beckham agreed to pay restitution to the victim in the amount of $5, within eight months, at a rate of $ per month. If Beckham failed to pay the full amount of restitution at the end of eight months, however, the Commonwealth would seek to impose the 365-day sentence. The agreement was intended to keep Beckham from becoming a convicted felon and to allow her to find employment in order to pay the restitution. The circuit court sentenced Beckham in accordance with the terms of the agreement on November 23, On March 8, 2010, the Commonwealth moved to have Beckham removed from conditional discharge for failure to make any restitution payments. On May 12, 2010, the parties informed the circuit court that they had renegotiated the case. Beckham agreed to withdraw her plea of guilty to seconddegree criminal mischief and enter a plea of guilty to first-degree criminal mischief. She also agreed to repay the restitution at a lower rate of $ per month. In exchange, the Commonwealth agreed to recommend a sentence of two -2-

3 years, diverted for five years. Before accepting the guilty plea, the circuit court conducted a Boykin colloquy 1 with Beckham and then sentenced her in accordance with the agreement. Two months later, the Commonwealth filed a motion to remove Beckham from the diversion program and impose her sentence because she had not paid any restitution. Beckham failed to appear, and the circuit court issued a bench warrant. After being arrested and released, Beckham appeared in court on January 6, 2011, and counsel was appointed to represent her. She indicated that she was trying to pay $2, towards restitution. Following another hearing, Beckham made a payment of $ on March 7, A status hearing was held on August 30, 2011, at which the circuit court ordered Beckham to remain on diversion and to pay $ towards restitution on or before October 3, At that time, the Commonwealth informed the court that the victim had recently died; the circuit court stated that the restitution would henceforth be paid to the victim s estate. Beckham made no objection to this arrangement. On October 24, 2011, the Commonwealth advised the circuit court that Beckham had failed to meet the October 3 rd deadline. The circuit court scheduled a status conference for November 14, Before that hearing was held, Beckham 1 Such a colloquy is conducted to ensure that the guilty plea is intelligently and voluntarily entered. See Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986), citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). -3-

4 made a payment of $ She did not make another payment until January 17, 2012, when she paid $ On February 8, 2012, the Commonwealth filed another motion to remove Beckham from diversion. At the hearing on the motion, Beckham stipulated that she had failed to pay restitution but asked to remain on diversion in order to pay the restitution. The circuit court removed Beckham from diversion and sentenced her to two years, probated for five. The restitution order remained in effect. On July 27, 2012, the Commonwealth moved to revoke Beckham s probation on the grounds that she had admitted to using cocaine on two separate occasions, tested positive for drug use on another occasion, had been discharged from a treatment facility, and had paid only $50.00 towards restitution since being placed on probation. Beckham failed to report for her revocation hearing. A bench warrant was issued for her arrest. The Commonwealth subsequently filed four supplemental motions to revoke, containing new allegations that Beckham had failed to appear at probation and parole or at social services as required and had been arrested for stabbing a girl in the face for which she was later indicted on a charge of seconddegree assault. On October 19, 2012, Beckham filed a motion to vacate, set aside or correct sentence pursuant to RCr She argued that the November 23, 2009, order of conditional discharge was final, that consequently she should not have been allowed to withdraw her guilty plea, and that any advice to do so constituted -4-

5 ineffective assistance of counsel. She also contended that the amendment of her charge and sentence violated the stricture against double jeopardy. The circuit court denied the motion, and Beckham filed an appeal (2013-CA MR). Then, on February 8, 2013, following a hearing, the circuit court revoked Beckham s probation and sentenced her to two years imprisonment. Beckham filed an appeal from the revocation order (2013-CA MR). Finally, on March 11, 2013, Beckham filed a motion pursuant to RCr to vacate the judgment of revocation. She argued that because restitution must be made to a named victim, the court s authority to enforce the restitution order terminated with the victim s death on July 13, The circuit court denied the motion in an order entered on April 22, Beckham filed her third notice of appeal (2013-CA MR). Beckham s three appeals were later consolidated by this Court on the Commonwealth s unopposed motion. As a preliminary matter, Beckham argues that the Commonwealth s Counterstatement of the Case does not comply with Kentucky Rules of Civil Procedure (CR) 76.12(4)(d)(iii), which requires the appellee to state whether the appellee accepts the appellant s Statement of the Case and, if not, to set forth the matters the appellee considers essential to a fair and adequate statement of the case in accordance with the requirements of paragraph (4)(c)(iv) of this Rule. According to Beckham, the rule requires the appellee to state specifically where the appellant s statement of the case is deficient and does not require this Court to -5-

6 assume from the fact that the Attorney General chooses to write eight pages exposing Ms. Beckham s purported chicanery that he disagrees with the Statement of the Case. But an appellee is certainly permitted to provide additional, supplementary facts, as the Commonwealth does in this case, without expressly contradicting or challenging the facts presented by the appellant. Such additional facts provide this Court with a fuller context within which to review the lower court s decisions. In any event, even when an appellant or appellee fails to abide by the rules, we may ignore the deficiency and proceed with review[,] which is what we choose to do in this case. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) CA MR Appeal from December 7, 2012 order denying RCr motion Beckham argues that the November 23, 2009 order, which set up the initial conditional discharge and restitution arrangement, was a final judgment not subject to further amendment ten days after entry. CR 59.05; Commonwealth v. Marcum, 873 S.W.2d 207, 211 (Ky. 1994) (a judgment becomes final once ten days have elapsed with no action to alter, amend or vacate it). Consequently, she contends, the circuit court lacked jurisdiction to permit the renegotiation of the original bargain in May 2010 and the entry of the order of conditional diversion. She asks this Court to declare that the only valid judgment in this case was entered on November 23, 2009, and that all subsequent orders are null and void for lack of jurisdiction. She acknowledges that this argument was not presented in her RCr -6-

7 11.42 motion, but she raises it pursuant to RCr 8.18, which allows a lack of jurisdiction to be noticed at any time during the proceedings. It is well-established that the issue of subject matter jurisdiction can be raised at any time, even sua sponte, as it cannot be acquired by waiver, consent, or estoppel. Gossett v. Kelley, 362 S.W.3d 379, 380 (Ky. App. 2012) (quoting Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky. App. 2005) (footnotes omitted)). Beckham does not dispute that the circuit court had subject matter jurisdiction over her case when it entered the November 23, 2009 order, however. Subject matter jurisdiction concerns a court s power to hear a specific category or class of cases; particular-case jurisdiction concerns its power to hear a particular case. Commonwealth v. Steadman, 411 S.W.3d 717, 722 (Ky. 2013). Once a court has acquired subject matter and personal jurisdiction [as it did in Beckham s case], challenges to its subsequent rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction. Id. (citations omitted, emphasis in original). Unlike subject-matter jurisdiction, particular-case jurisdiction is subject to waiver. Id. at 724. The record shows that Beckham consented to renegotiate the terms of the earlier plea agreement. At the May 12, 2010 hearing, her attorney expressed gratitude to the circuit court for the opportunity, explaining that he and Beckham had discussed a lot of options and agreed that this was the best way for her to go. Throughout the numerous proceedings that ensued in the following three years, Beckham and her counsel continued to act as though the circuit court had -7-

8 jurisdiction, and she only complained about the jurisdictional issue for the first time on appeal. Id. Undoubtedly, Beckham waived particular-case jurisdiction. Secondly, she argues that RCr 8.10 cannot be relied upon as a justification for withdrawal of her original guilty plea because it contains no provision for the withdrawal of a plea after a final judgment has been entered, nor can the rule be used to re-vest the circuit court with jurisdiction to do anything. We have already determined that Beckham waived her jurisdictional challenge to the circuit court s entry of the May order. Any concerns regarding the validity of the guilty plea could have been raised in a direct appeal from that order. See Porter v. Commonwealth, 394 S.W.3d 382, (Ky. 2011). Beckham s approach contravenes the structure for attacking a final judgment in a criminal case, which requires a defendant aggrieved by a judgment to directly appeal that judgment. Gross v. Commonwealth, 648 S.W.2d 854, 857 (Ky. 1983). Furthermore, our case law does permit a guilty plea to be withdrawn after judgment and sentencing if it appears that the accused s consent to plead guilty was unwillingly given and made under circumstances of fear, deceit, or coercion. Blair v. Commonwealth, 479 S.W.2d 643, 644 (Ky. 1972) (internal citations omitted). Although there was no evidence of fear, deceit, or coercion in the circumstances of the entry of the first plea, Beckham wished to withdraw her earlier plea in order to avoid revocation of her conditional discharge and imposition of the sentence. There was no error in the circuit court s decision to -8-

9 allow her to withdraw the earlier plea in order to accept a more advantageous offer that provided for conditional diversion and more manageable restitution payments. Thirdly, Beckham argues that the entry of two subsequent judgments after the November 23, 2009, judgment violates the prohibition against double jeopardy found in 13 of the Kentucky Constitution. When, as in this case, it is the appellant who moves the court to withdraw her guilty plea, the constitutional protection against double jeopardy is waived. Simpson v. Commonwealth, 759 S.W.2d 224, 228 (Ky. 1988), citing United States v. Jerry, 487 F.2d 600 (3rd Cir. 1973). Furthermore, the Kentucky Supreme Court has repeatedly held that double jeopardy claims fall under the palpable error rule, where an unpreserved error requires reversal only if a manifest injustice has resulted from the error, which means there is [a] probability of a different result or [the] error [is] so fundamental as to threaten a defendant s entitlement to due process of law. Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky. 2009), quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Beckham has failed to make such a showing. Under the earlier agreement, her failure to make restitution would have resulted in incarceration. Although she did plead guilty to a felony under the terms of the new agreement, it also provided for greatly reduced restitution payments and an opportunity to have the conviction diverted. [U]nlike a sentence of imprisonment, probation, or conditional discharge, admission into a diversion program permits a defendant who successfully completes diversion to avoid a -9-

10 felony conviction entirely. Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003). To prevail on an RCr motion, a movant must convincingly establish that he was deprived of a substantial right justifying the extraordinary relief afforded by post conviction proceedings. Halvorsen v. Commonwealth, 258 S.W.3d 1, 3 (Ky. 2007) (footnote omitted). Beckham has failed to make such a showing, and the trial court did not err in denying the RCr motion CA MR Whether court erred in allowing the Commonwealth s attorney to participate in the probation revocation proceedings This appeal is taken from the judgment revoking Beckham s probation, entered on February 14, Beckham argues that the circuit court erred in allowing the Commonwealth s attorney to prosecute the revocation action because there is no statute authorizing the prosecutor to play such a role. This argument is unpreserved, and Beckham requests palpable error review pursuant to RCr Beckham argues that the absence of any affirmative statutory language authorizing the participation of the Commonwealth s attorney in probation revocation proceedings must mean that the legislature intended to exclude the prosecutor from such proceedings. A panel of this Court recently reviewed this identical argument, also under the palpable error standard, in an unpublished -10-

11 opinion, Cox v. Commonwealth, 2014 WL (2013-CA MR) (Ky. App. Feb. 21, 2014). Its reasoning is persuasive: 2 Under the provisions of RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is palpable and if it affects the substantial rights of a party. Even then, relief is appropriate only upon a determination that manifest injustice resulted from the error. RCr For an error to rise to the level of palpable, it must be easily perceptible, plain, obvious and readily noticeable. Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky. 2013) (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)). The error alleged before us is neither palpable nor did it affect Cox s [the appellant] substantial rights. Thus, we are precluded from reviewing it by the very terms of RCr Kentucky Revised Statute[s] (KRS) (2) provides that a court may revoke or modify a conditional discharge after a properly noticed hearing at which the probationer is represented by counsel. Beyond those requirements, no other specific rules governing the conduct of revocation hearings have been articulated. Rasdon v. Commonwealth, 701 S.W.2d 716 (Ky. App. 1986). Thus, the alleged error is not easily perceptible, plain, or obvious. To the contrary, where a probationer is afforded counsel, it is not unreasonable to expect that the Commonwealth would seek to participate with its own counsel and that the trial court would permit such an appearance. Consequently, it cannot be said that the error in these revocation proceedings if any at all is palpable. Furthermore, the alleged error did not affect Cox s substantial rights. Probation revocation proceedings are not criminal proceedings and do not afford a probationer 2 Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. CR 76.28(4)(c). -11-

12 the full panoply of rights available under the Sixth Amendment. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Instead, only the barest trappings of due process are required with respect to probationers. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). We hold that the participation of the Commonwealth s attorney in the proceedings under these circumstances did not violate the minimal safeguards afforded Cox as a probationer. Cox, at *1-2 (emphasis in original). The same reasoning applies to Beckham s case. We would further note that our case law provides for the participation of the Commonwealth in revocation proceedings on due process grounds. In Murphy v. Commonwealth, 551 S.W.2d 838 (Ky. App. 1977), for example, a case was remanded on due process grounds because the appellant was not served with notice of his revocation hearing. The opinion specifically directed that [a]t this hearing, it will be incumbent on the Commonwealth to show by a preponderance of the evidence that the appellant has violated the terms of his probation. Id. at 841. Similarly, in Hamm v. Commonwealth, 367 S.W.3d 605, 608 (Ky. App. 2012), it was noted that [a]s with all probation revocation hearings, the Commonwealth has the burden of proving a probation violation by a preponderance of the evidence. Id. at 607 quoting Commonwealth v. Marshall, 345 S.W.3d 822, 834 (Ky. 2011). It would be impossible for the Commonwealth to meet this evidentiary burden if it were not permitted to participate in the revocation proceedings CA MR -12-

13 Whether the death of the victim divested the circuit court of jurisdiction to mandate payment of restitution The circuit court entered an order revoking Beckham s probation on February 14, Beckham filed a notice of appeal from that order on March 1, 2013 (this is the appeal addressed immediately above, in which it is argued that the Commonwealth s attorney should not have been allowed to participate in revocation proceedings). Then, on March 11, 2013, she moved the circuit court to vacate the judgment of revocation pursuant to RCr and RCr 8.18, arguing that her failure to pay restitution after the date of the victim s death could not be used as grounds to revoke her probation. Because the motion was filed more than ten days after entry of the revocation order, the circuit court lost jurisdiction over the matter. CR Beckham nonetheless argues that because the obligation to pay restitution is purely a creature of statute, see KRS and KRS , the death of the victim divested the court of jurisdiction to enforce the order of restitution. Even if, for the sake of argument only, we agree that the circuit court erred in ordering the restitution to be paid to the decedent s estate, such an error would not have divested it of jurisdiction. Beckham has confused a court s erroneous action within its jurisdiction with a court acting outside its subject matter jurisdiction. Daugherty v. Telek, 366 S.W.3d 463, 466 (Ky. 2012). A court, once vested with subject matter jurisdiction over a case, does not suddenly lose subject matter jurisdiction by misconstruing or erroneously overlooking a statute or -13-

14 rule governing the litigation. Id. at 467. See also Sitar v. Commonwealth, 407 S.W.3d 538, (Ky. 2013). Thus, Beckham s motion was untimely, and even if it were not, there is no question that the circuit court had jurisdiction to enforce the restitution order. For the foregoing reasons, the orders in the above-styled consolidated appeals are affirmed. CAPERTON AND TAYLOR, JUDGES, CONCUR IN RESULT ONLY. BRIEFS FOR APPELLANT: J. David Niehaus Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky -14-