KIRKSEY v. COMMONWEALTH (2019)

OPINION

Jeremy Kirksey appeals pro se from an order of the Calloway Circuit Court denying his petition for post-conviction relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We affirm the circuit court's judgment.

The facts and proceedings are summarized as follows: Based upon an informant's tip, police discovered a “shake and bake” methamphetamine lab consisting of a Gatorade bottle containing anhydrous ammonia, an HCL generator, and a bottle of Liquid Fire drain cleaner, along with a red backpack containing blue rubber gloves, two cold packs, and two prescription drugs issued to Kirksey. Kirksey was charged under Kentucky Revised Statutes (KRS) 218A.1432 with manufacturing methamphetamine first offense ¹ and with being a first-degree persistent felony offender (PFO) under KRS 532.080(3).

On November 26, 2012, Kirksey pled guilty in exchange for a recommended sentence of twenty years’ imprisonment for manufacturing methamphetamine, dismissal of the first-degree PFO charge, and a recommendation of probation after 154 days served. The circuit court sentenced Kirksey according to the plea deal on December 20, 2012.

In April 2014, Kirksey violated his probation by driving under the influence and failing a drug test for marijuana. On July 16, 2014, Kirksey's probation was revoked. After completing a drug rehabilitation course, the circuit court granted Kirksey's motion to rescind his revocation, and Kirksey was put back on probation on August 26, 2014. On November 3, 2015, Kirksey's probation was again revoked, this time for violations including possession of marijuana and admitting he had ingested methamphetamine.

On July 20, 2016, Kirksey's attorney filed a motion to vacate, set aside, or correct his conviction pursuant to CR 59.01(g) and CR 60.02(a)-(b). In support, Kirksey's attorney included two letters from witnesses willing to testify that the Commonwealth's witness Debbie “Big Debb” Moore “is dishonest and likely made false allegations” against Kirksey. Otherwise, the motion was devoid of detail establishing why a new trial under CR 59.01(g) or a corrected conviction under CR 60.02(a) or (b) was warranted.

On January 19, 2017, the circuit court issued an order summarily denying Kirksey's motions, stating that “CR 60.02 is not the appropriate rule.” The circuit court's written order did not address the CR 59.01(g) argument of Kirksey's motion. However, it did elaborate that “[t]he Court considers Defendant's judgment to be final and any further leniency, if any, should be at the discretion of the Parole Board.” On November 14, 2017, we issued an order permitting the Department of Public Advocacy (DPA) to withdraw from representing Kirksey and permitting him to proceed pro se. This appeal followed.

In the court below, Kirksey argued for a new trial. Here, Kirksey's brief reads essentially as a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for ineffective assistance of counsel, disguised as a CR 60.02 motion. Therein, he alleges that his trial counsel promised he would be free to leave on probation the day of sentencing and that trial counsel would get his conviction thrown out. While he was able to go home on probation per the plea agreement, Kirksey alleges trial counsel broke his promise by not getting his conviction overturned.

However, Kirksey did not raise his ineffective assistance of counsel claim before the circuit court in the ruling he seeks to appeal. “When an issue has not been addressed in the order on appeal, there is nothing for us to review. Our jurisprudence will not permit an appellant to feed one kettle of fish to the trial judge and another to the appellate court.” Owens v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017) (footnote omitted) (citing Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012)).

Further, Kirksey failed to file a motion to vacate, set aside, or correct sentence within the three-year post-judgment time limit for filing such under RCr 11.42(10). Therefore, ineffective assistance of trial counsel is not a properly preserved issue. Rather, the issues before us are those addressed in the circuit court's January 19, 2017, ruling.

“We review the denial of a CR 60.02 motion for an abuse of discretion.” Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)); see also Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998) (citations omitted). “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). “The burden of proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.” Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (citations and internal quotation marks omitted). “[W]e will affirm the lower court's decision unless there is a showing of some ‘flagrant miscarriage of justice.’ ” Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).

Kirksey contends the circuit court abused its discretion when it denied his motion pursuant to CR 60.02(a)-(b). We disagree.

CR 60.02 provides in relevant part: “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.” Kirksey specified CR 60.02(a) and (b) as grounds for relief, meaning he was required to bring his motion “not more than one year” after judgment was entered against him on December 20, 2012. Here, Kirksey filed his CR 60.02 motion on July 20, 2016, nearly four years post-judgment. Kirksey's motion is untimely and therefore time-barred. Thus, the circuit court did not abuse its discretion in denying Kirksey's CR 60.02 motion.

Accordingly, denial of his CR 59.01(g) motion is the only issue remaining before us. “Only if the appellate court concludes that the trial court's order [on a motion for new trial] was clearly erroneous may it reverse.” Turfway Park Racing Ass'n v. Griffin, 834 S.W.2d 667, 669 (Ky. 1992).

CR 59.01(g) states: “A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes: ․ Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” In the case at bar, the ostensible newly discovered evidence was the statements of two people who claim “Big Debb,” one of the Commonwealth's witnesses, has a reputation for dishonesty and likely lied about Kirksey to law enforcement. Kirksey has not shown why he could not have produced this evidence earlier through an exercise of reasonable diligence.

Further, the corresponding rule for the time to file a motion for new trial states: “A motion for a new trial shall be served not later than 10 days after the entry of the judgment.” CR 59.02 (emphasis added). Here, it was nearly four years between Kirksey's conviction and the filing of his CR 59.01(g) motion—well beyond the ten-day limitation under CR 59.02. Thus, we hold that the circuit court's denial of Kirksey's CR 59.01(g) motion was not clearly erroneous.

For the foregoing reasons, we affirm the Calloway Circuit Court's order denying relief pursuant to CR 60.02(a)-(b) and CR 59.01(g).

FOOTNOTES

1.   First offense manufacturing methamphetamine is a Class B felony under KRS 218A.1432(2).

LAMBERT, JUDGE:

ALL CONCUR.