Timothy Allen Helton v. Commonwealth of Kentucky ( 2021 )

RENDERED: JULY 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0033-MR
TIMOTHY ALLEN HELTON APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NO. 16-CR-00865-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.
CALDWELL, JUDGE: Timothy Helton (Helton) appeals the Fayette Circuit
Court’s denial of relief upon his motion pursuant to CR1 60.02 in which he alleged
the sentence that he agreed to serve in a plea agreement is violative of KRS2
532.110(1)(c) and KRS 532.080(6)(b). We disagree and affirm the trial court.
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
FACTS
In 2016, Helton was charged in several counties with multiple counts
related to a crime spree wherein he and others stole motor vehicle trailers and
merchandise from retailers, apparently to finance a heroin addiction. On August
17, 2017, he pleaded guilty in Pulaski Circuit Court to violating KRS 506.120(2)
by stealing property for resale, a class C felony, and being a persistent felony
offender in the first degree, with a sentence of imprisonment on that judgment of
fourteen (14) years. Exactly two months later, Helton entered a guilty plea in
Fayette Circuit Court to one count of theft by unlawful taking under $10,000, four
counts of attempted theft by unlawful taking under $500, and being a persistent
felony offender in the first degree and was sentenced, in accord with the
agreement, to a total sentence on that judgment of eight (8) years, to run
consecutive to the Pulaski Circuit Court sentence.
Helton did not appeal either judgment. Rather, in 2019, he filed a pro
se motion pursuant to CR 60.02(e) and (f) in Fayette Circuit Court, arguing that the
total sentence of imprisonment under both judgments of twenty-two (22) years was
illegal as the total sentence should have been no longer than twenty (20) years. He
cited KRS 532.110(1)(c) as supportive of his claim.
The Fayette Circuit Court denied the motion without a hearing.
Helton appealed that order to this Court and we affirm the Fayette Circuit Court.
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STANDARD OF REVIEW
The standard of review of an appeal involving a CR
60.02 motion is whether the trial court abused its
discretion. A movant is not entitled to a hearing on a CR
60.02 motion unless he “affirmatively alleges facts
which, if true, justify vacating the judgment and further
allege[s] special circumstances that justify CR 60.02
relief.” White has failed to present any facts or legal
grounds sufficient to invalidate his sentence. Thus, the
trial court did not abuse its discretion in denying his CR
60.02 motion without a hearing.
White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citations omitted).
ANALYSIS
KRS 532.110(1)(c) caps the maximum sentence a trial court can
impose for multiple offenses at whatever the maximum sentence would be
available under KRS 532.080, or persistent felony offender sentencing, but no
more than 70 years in any event.
(1) When multiple sentences of imprisonment are
imposed on a defendant for more than one (1) crime,
including a crime for which a previous sentence of
probation or conditional discharge has been revoked, the
multiple sentences shall run concurrently or consecutively
as the court shall determine at the time of sentence, except
that:
...
(c) The aggregate of consecutive indeterminate
terms shall not exceed in maximum length the
longest extended term which would be authorized
by KRS 532.080 for the highest class of crime for
which any of the sentences is imposed. In no event
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shall the aggregate of consecutive indeterminate
terms exceed seventy (70) years.
Helton argues that this provision is applicable when multiple circuit courts are
imposing sentences under disparate indictments. We disagree.
Because the maximum available sentence of imprisonment for the
highest class of crime for which he entered a guilty plea, a class C felony, is twenty
(20) years under KRS 532.080(6)(b), Helton believes that the maximum sentence
which can be imposed upon him can be no more than twenty years. He argues this
despite the fact that his crime spree crossed county lines and multiple jurisdictions
indicted him for crimes committed within their borders.
Helton misinterprets the statute. None of the courts could
individually impose a judgment with a sentence longer than twenty (20) years, and
none of them did so. However, the Fayette Circuit Court was completely within its
authority to order the eight-(8)-year sentence to be served consecutively to the
sentence imposed by the Pulaski Circuit Court.
Further, KRS 533.060(3) applies and required the Fayette Circuit
Court to run its sentence consecutive to the Pulaski sentence.
When a person commits an offense while awaiting trial
for another offense, and is subsequently convicted or
enters a plea of guilty to the offense committed while
awaiting trial, the sentence imposed for the offense
committed while awaiting trial shall not run concurrently
with confinement for the offense for which the person is
awaiting trial.
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KRS 533.060(3). As his counsel acknowledged in a pleading seeking probation in
Fayette Circuit Court, Helton committed the offenses in Pulaski, Mercer, Grant,
and Boyle counties whilst on bond on the Fayette County charges.3 Thus, the
imposition of a consecutive sentence was in accord with the law and was not an
abuse of discretion.
However, most fatal of all to Helton’s claim is the fact that CR 60.02
is not the proper vehicle for relief from what one believes is an illegal sentence.
Rather, Helton should have filed a direct appeal to raise this issue.
We hold that the proper procedure for a defendant
aggrieved by a judgment in a criminal case is to directly
appeal that judgment, stating every ground of error which
it is reasonable to expect that he or his counsel is aware
of when the appeal is taken.
Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Having failed to
appeal the Fayette Circuit judgment, Helton cannot now seek post-conviction relief
for an issue which should have been raised in a direct appeal.
[T]he rule may be utilized only in extraordinary
situations when relief is not available on direct appeal or
3
“The cases in Grant, Mercer and Boyle were essentially part of the syndicate, as each case also
involved Walmart thefts. Tim has been finally sentenced to 14 years in Pulaski County and the
sentences in Grant (3 years, case # 17-CR-00055), Mercer (12 months, case # 16-CR-00096),
and Boyle (12 months, case # 16-CR-0228) have all been resolved for a total sentence of 14
years . . . . Since the above described cases were committed while Tim was on bond on the
Fayette charges, it is understood that any custodial sentence imposed by this Court will have to
run consecutive to the 14 year sentence he is currently serving. The question before this Court is
whether Tim deserves a 22 year total sentence for non-violent theft offenses fueled by heroin
addiction . . . .”
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under RCr[4] 11.42. McQueen v. Commonwealth, 948
S.W.2d 415, 416 (Ky.1997). That is, CR 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 an RCr 11.42 proceeding.
Id.Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014).
CONCLUSION
We affirm the Fayette Circuit Court’s Order denying Helton’s motion
for CR 60.02 relief. Procedurally, this issue should have been raised in a direct
appeal, and for that reason alone relief cannot be granted. On the merits, however,
Helton’s argument is not well taken, and the sentence imposed in the judgment at
issue herein was not violative of the law and was the sentence he bargained for in
the plea agreement to which he agreed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy Helton, pro se Daniel Cameron
Lexington, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky
4
Kentucky Rules of Criminal Procedure.
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