Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
TERRY MILLS v. COMMONWEALTH OF KENTUCKY
NOT TO BE PUBLISHED
AFFIRMING
Terry Mills appeals from a McCracken Circuit Court order denying his motion made pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We affirm.
On July 31, 2002, Mills entered a plea of guilty to various drug-related offenses, including manufacturing methamphetamine, and to being a persistent felony offender in the first degree. Final judgment was entered on August 6, 2002. More than seven years later, he filed a motion under CR 60.02, arguing that his sentence was illegal under Kotila v. Commonwealth, 114 S.W.3d 226 (Ky.2003), because he was not found in possession of all the ingredients necessary to manufacture methamphetamine; Double and that the sentences on his other charges were improperly enhanced. The circuit court denied the motion and this appeal followed.
The record shows that prior to filing the motion that is the subject of this appeal, Mills filed three CR 60.02 motions: on March 25, 2003, June 5, 2003 and June 8, 2004, as well as an RCr 11.42 motion on September 30, 2004.
CR 60.02 is the successor to coram nobis,
an extraordinary and residual remedy to correct or vacate a judgment upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were discovered after the rendition of the judgment without fault of the party seeking relief.
Harris v. Commonwealth, 296 S.W.2d 700, 701(Ky.1956). CR 60.02 “was never meant to be used as another vehicle to revisit issues that should have been included or could have been included in prior requests for relief․ CR 60.02 and RCr 11.42 motions are not to be used to relitigate previously determined issues.”
Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky.2008). Mills's claims could have been included in his prior requests for relief and, in fact, he raised his arguments regarding Kotila in the CR 60.02 motion of June 8, 2004 and again in his RCr 11.42 motion in the form of an ineffective assistance of counsel claim. His claims are therefore barred.
Furthermore, movants seeking relief under CR 60.02(a), (b) and (c) must bring their motions within one year after the final judgment; all other claims must be brought within a reasonable time. Seven years elapsed between the date of the final judgment and the filing of Mills's motion. The trial court did not abuse its discretion in ruling that this delay did not constitute a reasonable time.
Accordingly, we affirm the McCracken Circuit Court order denying Mills's motion.
ALL CONCUR.
ISAAC, SENIOR JUDGE:
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: NO. 2010–CA–000424–MR
Decided: May 27, 2011
Court: Court of Appeals of Kentucky.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)