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Court of Appeals of Kentucky.


NO. 2009-CA-002280-MR

Decided: July 23, 2010

BEFORE:  MOORE AND WINE, JUDGES;  HARRIS, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Ronnie Moss, pro se Fredonia, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky



Ronnie Moss appeals the Muhlenberg Circuit Court's order denying his CR  Double 60.02 motion to vacate the judgment against him.   After a careful review of the record, we affirm because Moss could have brought his present claims in his prior RCr  Double 11.42 motion.

Moss entered a guilty plea to the charges of third-degree burglary, theft by the unlawful taking of property valued at over $300.00 (TBUT over $300.00), and being a second-degree persistent felony offender (PFO-2nd).   He was sentenced to serve five years of imprisonment each for the third-degree burglary and TBUT over $300.00 convictions.   These sentences were enhanced to ten years each due to the PFO-2nd conviction.   Moss's sentences were ordered to run concurrently, for a total sentence of ten years of imprisonment.

Moss filed a motion to vacate, set aside, or amend the judgment against him, pursuant to RCr 11.42.   The motion was denied by the circuit court.   Moss then filed in this Court a motion for permission to file a belated appeal, and this Court denied that motion on January 14, 2009.   See Moss v. Commonwealth, No.2008-CA-001810-MR.

Moss next filed in the circuit court a motion to vacate the judgment against him, pursuant to CR 60.02(e) and (f).  In his motion, Moss alleged that his rights against double jeopardy were violated because while he was in jail in Hopkins County on the charge of knowingly receiving stolen property (which he appears to contend was a charge stemming from the same events that lead to his conviction at hand), he was charged with TBUT over $300.00 in addition to the third-degree burglary charge in Muhlenberg County.   Moss also contended in his CR 60.02 motion that he had received the ineffective assistance of counsel when his attorneys coerced or allowed him to plead guilty to charges that were “prohibited” under the Double Jeopardy Clause.   Finally, Moss asserted that his due process and equal protection rights were violated when he was not brought into the Muhlenberg District Court to be present during certain unspecified proceedings concerning the charges in the indictment.   The circuit court denied Moss's CR 60.02 motion.

Moss now appeals, raising the same claims that he brought in his CR 60.02 motion in the circuit court.

On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion.  “A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further allege[s] special circumstances that justify CR 60.02 relief.”   White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000) (internal quotation marks and citation omitted).

In his motion brought in the circuit court, Moss 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 Moss could have raised his claims in his RCr 11.42 motion, his CR 60.02 motion fails.

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


MOORE, JUDGE:   Double Double