WINSTON BRISCOE APPELLANT v. APPELLEE (2012)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Winston Briscoe appeals the Fayette Circuit Court's rejection of his fourth Kentucky Rule of Civil Procedure (CR) 60.02 motion challenging the validity of his 2000 conviction.   We affirm.

In 2000 a jury convicted Briscoe of the first-degree sodomy of a fellow inmate at the Fayette County Detention Center and of being a second-degree persistent felony offender.   He was sentenced to twenty years' imprisonment on July 5, 2000.

Since then, Briscoe has mounted a number of attacks upon his conviction.   The first was a direct appeal;  the Supreme Court affirmed the conviction.   Briscoe next filed a motion pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 in 2003.   The circuit court's denial of that motion was affirmed by this Court.   Between 2005 and 2007, Briscoe filed three CR 60.02 motions, all of which raised trial errors and were unsuccessful.   Finally, he filed the CR 60.02 motion which is the subject of this appeal.   The circuit court overruled the motion without conducting a hearing, and Briscoe has appealed.

In support of his appeal, Briscoe claims allegations of employee misconduct and corruption within the Fayette County Detention Center came to light in 2010.   More specifically, Briscoe alleges it was common practice for detention center employees to arrange for inmates to have sexual contact with one another.   He also states that he was aware of this practice even prior to his conviction, but that the general public was not apprised of it until recently.   For reasons which Briscoe does not elucidate, he claims the alleged misconduct eviscerates the forcible compulsion element of his sodomy conviction and, therefore, that conviction should be vacated.

CR 60.02 is not available to challenge a conviction on bases which could have been brought either on direct appeal or in a timely RCr 11.42 motion.   Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky.1983);  Cardwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky.App.2011).   Briscoe claims he was aware of the alleged misconduct within the Fayette County Detention Center well before they were made public in 2010.   Nevertheless, he failed to raise this basis of CR 60.02 relief until April 7, 2011, when he filed his fourth such motion.   The circuit court's denial of the motion as untimely did not constitute an abuse of discretion.  CR 60.02;  White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000).   It was not necessary for the circuit court to conduct a hearing to ascertain that Briscoe's CR 60.02 motion was meritless.   See White, 32 S.W.3d at 86.

We affirm the Fayette Circuit Court's April 14, 2011 denial of Briscoe's fourth CR 60.02 motion.

all concur.

ACREE, JUDGE: