Reset A A Font size: Print

Court of Appeals of Kentucky.


NO. 2009-CA-000250-MR

Decided: July 16, 2010

BEFORE:  DIXON AND KELLER;  JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Mark Price, Pro Se Lexington, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Jack C. Shackelford Assistant Attorney General Frankfort, Kentucky



Appellant, Mark Price, appeals pro se from an order of the Campbell Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion without an evidentiary hearing.   Finding no error, we affirm.

In November 2001, Appellant was convicted in the Campbell Circuit Court of theft by unlawful taking over $300 and for being a first-degree persistent felony offender.   Appellant was sentenced to five years on the theft charge enhanced to seventeen years by virtue of his PFO I status.   In affirming Appellant's conviction and sentence on direct appeal, a panel of this Court set forth the pertinent facts as follows:

On January 22, 2001, Michael Roberts was performing construction work outside the Mansion Hill Tavern in Newport, Kentucky.   He owned a 1992 Chevrolet Silverado pickup truck which he had parked leaving the keys inside.   After an employee of the tavern arrived, Roberts stepped inside to get warm.   Price entered the bar, used the restroom, and exited.   Shortly thereafter, the employee told Roberts that someone had entered his truck.   After Roberts looked out the window and saw someone sitting in his truck, he walked outside and approached the passenger side of the truck.   He saw Price sitting in the driver's seat.   Price then backed up the truck and hit an older light blue Cadillac.   He sped off and the Cadillac, driven by a woman, followed.   Roberts notified police of the theft.

On January 23, 2001, Cincinnati Police Officer David Ivey received a tip regarding a stolen vehicle and went to 2585 Eastern Avenue, Apartment B, and knocked on the door.   Loretta Fisher answered, and after obtaining consent, the officer went to the garage area where he found Roberts' truck.

Detective Flowers of the Newport Police Department and Roberts went to the Cincinnati address where the truck was found and observed a light blue Cadillac with a Kentucky license plate registered in Kenton County.   Based on the registration information, Detective Flowers obtained a copy of Price's driver's license photograph.   Upon Roberts being able to pick Price from a photo lineup, Price was arrested.

Price v. Commonwealth, 2002-CA-000428-MR (July 11, 2003).

In August 2004, Appellant filed a pro se Kentucky Rules of Criminal Procedure (RCr) 11.42 motion claiming ineffective assistance of counsel.   Following the appointment of counsel and an evidentiary hearing, the trial court denied Appellant post-conviction relief.   On appeal, a panel of this Court affirmed the denial of post-conviction relief, noting,

On appeal, Price raises three issues:  first, whether counsel provided ineffective assistance when he failed to interview or call the bar employee as a witness at trial;  second, whether counsel provided ineffective assistance in response to evidence relating to Price's ownership of the Cadillac and a proof of insurance record disclosing an address in Cincinnati;  and third, whether counsel failed to effectively challenge the persistent felony offender charge.   We have reviewed each argument and the record, in detail, and find no error.

Price v. Commonwealth, 2006-CA-000652-MR (November 20, 2007).

Appellant thereafter filed a motion to correct, amend or vacate his judgment under CR 61.02, claiming that counsel was ineffective for “failing to object and preserve the issue concerning a parole officer giving testimony while being lead on by the Commonwealth attorney․”  Again, the trial court denied the motion.   No appeal was taken.

In December 2008, Appellant filed the pro se CR 60.02 motion that is the subject of the current appeal.   Therein, Appellant sought relief under CR 60.02(e) and (f), claiming that it was no longer equitable that the judgment should have prospective application and that his reasons were of an extraordinary nature justifying relief.   Specifically, Appellant claimed to have finally located the actual person who committed the crime, George Madden, a/k/a/ Porgie, who was willing to come forward and “confess to his crime 7 years later.”   In support of his motion, Appellant offered affidavits from himself, his former girlfriend, Loretta A. Fisher, and Madden.   On January 30, 2009, the trial court entered an order denying the motion without an evidentiary hearing.   In so doing, the court concluded:

Not only are many of the discrepancies pointed out by the Commonwealth unexplainable, and simply not resolvable, (i.e., trial testimony that a woman was driving the blue Cadillac which the defendant formerly affirmed and his current claim that he was driving the blue Cadillac from the scene of the theft), CR 60.02 relief “is available only to resolve issues that could not have been raised at trial, on direct appeal, or by a motion for relief under RCr 11.42.”․   It is simply not believable that he could not find Loretta Fisher, his girlfriend, in order to obtain her testimony for trial even though he knew where she lived at the time of the theft.

Additionally, there is no rational explanation or reason why defendant is presenting these facts so late in the game.   It is very clear from his affidavit that the entire set of facts, including, Porgie, could have been brought to his attorney's attention and that of the Commonwealth and the Court through the pretrial process, appeal, his 11.42 motion and his original CR 60.02.   Yet it was not.   This eliminates any possibility that the story has any basis in fact.  (Citations omitted).

Appellant thereafter appealed to this Court. Double

Appellant argues that the trial court erred in refusing to hold an evidentiary hearing because his claim of actual innocence was supported by three unrefuted affidavits.   It is Appellant's belief that had Fischer and Madden testified at trial, he would have been acquitted of the crime.   As such, he concludes that the affidavits prove he was wrongfully convicted and imprisoned, and are of such an extraordinary nature that they warrant relief under CR 60.02.

Our standard of review in a denial of a CR 60.02 motion is 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.”   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).   After reviewing the record, we conclude that it was not.

CR 60.02 states:

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:  (a) mistake, inadvertence, surprise or excusable neglect;  (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02;  (c) perjury or falsified evidence;  (d) fraud affecting the proceedings, other than perjury or falsified evidence;  (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.   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.   A motion under this rule does not affect the finality of a judgment or suspend its operation.

Application of the Civil Rules is required in criminal cases by RCr 13.04.   This allows CR 60.02 motions to be used by criminal defendants to present additional issues not specifically available through direct appeals or RCr 11.42 motions.  Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983).   However, CR 60.02 motions are limited to afford special and extraordinary relief not available in other proceedings.  McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997), cert. denied, 521 U.S. 1130 (1997).   The Rule is not intended to provide an avenue for defendants to relitigate issues which could have been presented in a direct appeal or an RCr 11.42 proceeding.   Id. Further, a movant must demonstrate why he is entitled to this special, extraordinary relief.   Finally, before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.

Although Appellant is essentially arguing that there is new evidence of his innocence, he did not cite to CR 60.02(b), the subsection pertaining to newly discovered evidence, for the obvious reason that the motion would have been barred by the one-year time limitation.   Rather, Appellant brought his motion under CR 60.02(e) and (f), arguing that it is no longer equitable to enforce the judgment against him and/or there are extraordinary reasons to vacate such.   Nevertheless, as a panel of this Court has held, “relief is not available under CR 60.02(f) unless the asserted grounds are not recognized under subsections (a), (b), (c), (d), or (e).”  McMurry v. McMurry, 957 S.W.2d 731, 733 (Ky.App.1997).

Even viewing Appellant's claims under CR 60.02(e) and (f), he cannot demonstrate that he is entitled to relief.   Motions made under either subsection must be made within a “reasonable time.”   Here, Appellant was convicted in 2001.   He filed a direct appeal, an RCr 11.42, and a CR 61.02, none of which raised his current claim.   Appellant's own affidavit states that he was aware that Madden had committed the crime and that he explained such to his public defender.   Thus, if Appellant's affidavit is to be believed, he clearly knew prior to trial and certainly at the time he filed his other post-conviction motions that Madden was responsible for the theft.   As Appellant failed to offer this alleged evidence at any stage of the proceedings, the trial court was within its discretion in determining that his CR 60.02 motion was untimely.

Furthermore, the trial court properly found that Appellant's claim he was unable to locate Fischer or Madden at the time of trial was “not believable.”   In fact, trial counsel testified at the RCr 11.42 hearing that he had interviewed Fischer.   If there was any truth to what Appellant now claims trial counsel would have subpoenaed Fischer.   In the alternative, if counsel had failed to do so, Appellant could have raised the issue as ineffective representation.   Notably, no such claim was made in his 2004 RCr 11.42 motion.   In fact, despite the numerous pleadings and motions filed by Appellant since his 2001 conviction, it was not until the 2008 CR 60.02 motion that Appellant first claimed that Madden had committed the crime.

As previously noted, CR 60.02 motions are limited to afford special and extraordinary relief not available in other proceedings.  McQueen, 948 S.W.2d at 416.   Further, CR 60.02 relief “is available only to resolve issues that could not have been raised at trial, on direct appeal, or by a motion for relief under RCr 11.42.”  Bowling v. Commonwealth, 163 S.W.3d 365 (Ky.2005), cert. denied, 546 U.S. 1017 (2005);  Gross v. Commonwealth, 648 S.W.2d 853 (Ky.1983).   Accordingly, because the questions raised in Appellant's current CR 60.02 motion clearly could have been presented in his direct appeal or an RCr 11.42 proceeding, he is foreclosed from raising them under CR 60.02.  Id. As such, the trial court did not abuse its discretion in denying the motion without an evidentiary hearing.

The order of the Campbell Circuit Court denying Appellant's CR 60.02 motion is affirmed.