JEROME CRAWFORD APPELLANT v. APPELLEE (2011)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Jerome Crawford, proceeding pro se, appeals the Henderson Circuit Court's order denying his motion for relief from judgment pursuant to CR  Double 60.02(e) and (f).  After a careful review of the record, we affirm because Crawford's claim was previously addressed on direct appeal.

In 2000, Crawford was convicted of being a felon in possession of a handgun and of being a second-degree persistent felony offender (PFO–2nd).   These convictions were based upon two prior robbery convictions.   Crawford was sentenced to serve “an indeterminate term of twelve years” of imprisonment.

Crawford appealed, contending that “because the two robbery convictions stemmed from the same offense, the convictions [could not] be used separately by the trial court in sentence enhancement.”  Crawford v. Commonwealth, No.2000–CA–001586–MR, slip op.   3 (Ky.App.2002).   This Court noted that Crawford's prior conviction for first-degree robbery was used to support his felon in possession of a handgun conviction.   Additionally, this Court noted that a different prior conviction for second-degree robbery was used to support his PFO–2nd conviction.   Therefore, the Court found that the use of the prior felonies was proper.  Id. at 4. Crawford's conviction, consequently, became final in 2002.

In 2010, Crawford filed his CR 60.02 motion.   The circuit court denied the motion, finding that Crawford was aware of the issue he raised in his motion during his direct appeal “because he in fact made the same argument in his direct appeal.”   Thus, the court held that because the issue was previously addressed on direct appeal, CR 60.02 relief was inappropriate.   The court also stated that even if the issue had not been raised on appeal, it was not brought within a “reasonable time,” as required for CR 60.02 motions and, therefore, it would have been denied on that basis.   Finally, the court reasoned that even if the aforementioned procedural bars had not prevented the court from granting relief, Crawford's claim, nevertheless, lacked merit.

Crawford now appeals, contending that the circuit court abused its discretion in denying his motion “which was filed to dismiss [Crawford's] PFO conviction as a ‘manifest injustice’ based on the use of double enhancement of one prior felony conviction and one final judgment, that has been separated and used for the purpose of possession of a handgun charge and PFO.”

On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion.  White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”   Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

In his motion brought in the circuit court, Crawford alleged that he was entitled to relief under CR 60.02(e) and (f), which state as follows:

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:  ․ (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․

“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. In the present case, because Crawford appears to have raised his claim on direct appeal, and it was denied by this Court at that time, he is barred from obtaining CR 60.02 relief based upon it.   However, even if he had not raised his claim on direct appeal, the claim is nevertheless inappropriate for CR 60.02 relief because it is a claim that could have been raised on direct appeal.

Moreover, even if the motion did not fail for those reasons, it would fail because it was not filed within a reasonable time, as the rule requires.   See CR 60.02.   Crawford's present CR 60.02 motion was filed eight years after his judgment became final, and that is not a reasonable time within which to file such a motion.   See Ray v. Commonwealth, 633 S.W.2d 71, 73 (Ky.App.1982).

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

ALL CONCUR.

MOORE, JUDGE:   Double