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RENDERED: MARCH 9, 2007; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2005-CA-000155-MR STANLEY JACKSON III APPELLANT

v.

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE MARY C. NOBLE, JUDGE ACTION NO. 98-CR-01084

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: LAMBERT AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR JUDGE. STUMBO, JUDGE: Stanley Jackson III appeals from an order of the Fayette Circuit Court denying his motion for RCr 60.02 relief from judgment. Jackson argues that the trial court improperly allowed the Commonwealth to use prior convictions to enhance more than one subsequent sentence. For the reasons stated below, we affirm the order on appeal.

1

Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

The facts are not in dispute. On October 20, 1998, Jackson and four codefendants were indicted by the Fayette County grand jury on numerous charges of firstdegree robbery and receiving stolen property. Jackson was charged with six counts of first-degree robbery and one count each of kidnapping, receiving stolen property over $300, and first-degree persistent felony offender ("PFO"). The indictment arose from a police investigation into numerous armed robberies of Fayette County, Kentucky businesses. It was alleged that Jackson, along with co-defendants, Troy Cloyd and Paul Douthitt, entered the businesses, threatened store employees with a handgun and stole cash and other items before fleeing. Three counts of the indictment were severed2 and tried separately. As to the remaining counts, Cloyd and Douthitt accepted plea offers from the Commonwealth, entered pleas of guilty and testified against Jackson at trial. Jackson was found guilty of five of the six counts of first-degree robbery, as well as the one count of first-degree persistent felony offender. The PFO I finding was based on a 1986 conviction for firstdegree robbery and a 1991 conviction for theft by unlawful taking. On June 4, 1999, Jackson received a total sentence of 52 years in prison. On September 30, 1999, Jackson filed a direct appeal with the Kentucky Supreme Court, claiming that certain evidence was prejudicial and improperly admitted. The judgment of conviction was affirmed by way of an opinion rendered on September 28, 2000.

2

One count of robbery, one count of kidnapping and one count of receiving stolen property were severed.

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On May 3, 2000, Jackson filed a CR 60.02 motion to vacate his conviction based on his allegation that false testimony was tendered against him at trial. The motion was denied by an order rendered on May 8, 2000. That order was affirmed on appeal to this Court on December 7, 2001. On August 24, 2004, Jackson filed another motion which forms the basis of the instant appeal. He sought to vacate, set aside and correct his sentence pursuant to CR 60.02(e) and (f). He argued that since his two prior convictions were used to enhance an April 6, 1999 conviction for escape (wherein he was found to be a PFO I offender), those same prior convictions could not also be used to enhance the robbery charges in the matter at bar. Jackson also appears to have argued in the alternative that the 1999 escape conviction was not final when the instant conviction was made final and therefore was improperly used as a basis for the PFO I conviction. After considering Jackson's motion and the Commonwealth's response thereto, the circuit court rendered an order on December 21, 2004 denying the motion for relief. It found in relevant part that the previous convictions used as a basis for the instant PFO I conviction were not under appeal at the time of the instant conviction and were thus properly relied upon to support the sentence enhancement. This appeal followed. Jackson now argues that the Fayette Circuit Court erred in failing to sustain his motion for CR 60.02 relief. He maintains that "the court erred by permitting the PFO first degree count to be used to enhance the offenses twice . . ." in violation of the Kentucky Constitution and the 8th and 14th Amendments to the United States

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Constitution. This contention makes little sense, in that no "PFO first degree count" was used as a basis for the instant PFO I conviction. Rather, it appears that Jackson is arguing either that 1) the 1999 escape conviction was not final and therefore could not serve as a basis for the PFO I conviction, or 2) the 1986 and 1991 convictions cannot be used more than once as a basis for subsequent PFO I convictions. As to the first argument, we agree that the 1999 escape conviction could not have been used as a basis for the instant PFO I conviction because the escape conviction was not yet a final conviction. The Commonwealth stipulates to this, noting both in its appellate brief and its November 30, 2004 response to Jackson's CR 60.02 motion that the escape conviction was neither used nor could have been used to support the instant PFO I conviction. The question then becomes whether the 1986 and 1991 convictions were properly used as a basis for the instant PFO I conviction. KRS 532.080 states, (3) A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies, or one (1) or more felony sex crimes against a minor as defined in KRS 17.500, and now stands convicted of any one (1) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided: (a) That a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed therefor; and (b) That the offender was over the age of eighteen (18) years at the time the offense was committed; and (c) That the offender:

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1. Completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted; or 2. Was on probation, parole, conditional discharge, conditional release, furlough, appeal bond, or any other form of legal release from any of the previous felony convictions at the time of commission of the felony for which he now stands convicted; or 3. Was discharged from probation, parole, conditional discharge, conditional release, or any other form of legal release on any of the previous felony convictions within five (5) years prior to the date of commission of the felony for which he now stands convicted; or 4. Was in custody from the previous felony conviction at the time of commission of the felony for which he now stands convicted; or 5. Had escaped from custody while serving any of the previous felony convictions at the time of commission of the felony for which he now stands convicted. It is uncontroverted that Jackson was convicted of two felonies preceding the instant judgment of conviction, and that he was released from the latter of the two (the 1991 conviction) within 5 years prior to the date of commission of the felony for which he now stands convicted. As such, those convictions were properly used as a basis for the PFO I. The sole remaining issue is whether there exists any statutory prohibition against the use of the 1986 and 1991 convictions as a basis for both the April 6, 1999 and the instant PFO I convictions. Jackson has cited nothing in support of this argument, and nor has our own research revealed any cause for finding error on this issue. To the contrary, and as the Commonwealth properly notes, we have previously held that the habitual criminality encompassed by the PFO statute is a status as opposed to an

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independent crime. Smith v. Commonwealth, 610 S.W.2d 939 (Ky. App. 1980). As such, double jeopardy does not attach and prior convictions may be used more than once to support subsequent PFO charges. Id. CR 60.02 states, On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation. CR 60.02 is not a mechanism for prosecuting an additional appeal. Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983). Rather, it is an extraordinary means of addressing claims that could not have been presented on direct appeal or via RCr 11.42. Id. Jackson appealed his conviction to the Kentucky Supreme Court and should have raised the instant claim of error, if at all, in that appeal. This fact, taken alone, forms a sufficient basis for affirming the order on appeal. Arguendo, even if Jackson's claim were properly brought via CR 60.02, it

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would nevertheless fail. The circuit court properly relied on Jackson's prior convictions to sustain the PFO I conviction, and accordingly we find no error. For the foregoing reasons, we affirm the order of the Fayette Circuit Court denying Jackson's motion for CR 60.02 relief. ALL CONCUR.

BRIEF FOR APPELLANT: Stanley Jackson, III, Pro Se 139020 Eddyville, Kentucky

BRIEF FOR APPELLEE: Gregory D. Stumbo Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky

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