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Court of Appeals of Kentucky.


NO. 2008–CA–001582–MR;  NO.2009–CA–001940–MR;  AND NO.2009–CA–002318–MR

Decided: January 20, 2012

BEFORE:  CLAYTON, DIXON AND LAMBERT, JUDGES. BRIEFS FOR APPELLANT:  Joe Willie Byrd, Pro Se West Liberty, Kentucky Marguerite Neill Thomas Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Christian K.R. Miller Assistant Attorney General Frankfort, Kentucky



Appellant, Joe Willie Byrd, appeals from an order of the Fayette Circuit Court denying his CR 60.02 motion to vacate his 1984 conviction for various drug related offenses.   Finding no error, we affirm.

Following a trial in July 1984, Appellant was convicted of trafficking in cocaine, second offense;  trafficking in marijuana;  and possession of controlled substance, second offense.   He was sentenced to fifteen years on the trafficking in cocaine charge, five years on the possession charge, and twelve months on the trafficking in marijuana charge, all to run concurrently for a total of fifteen years' imprisonment.   On direct appeal, however, a panel of this Court affirmed the trafficking in cocaine and possession convictions, but reversed and remanded the matter for a new trial on the trafficking in marijuana offense.  Byrd v. Commonwealth, 709 S.W.2d 844 (Ky.App.1986).

In May 1986, Appellant filed an RCr 11.42 motion alleging various claims of ineffective assistance of counsel.   The trial court denied the motion without a hearing, and this Court thereafter affirmed the denial of relief.  Byrd v. Commonwealth, 86–CA–001553–MR (June 15, 1987).   Unfortunately, for some reason not discernable from the record, no further action was ever taken regarding the reversed and remanded misdemeanor trafficking in marijuana conviction.

On February 27, 2008, Appellant filed a pro se “Motion to Reopen and Comply with Orders to Reverse in Part an [sic] Remanded for a New Trial on the Trafficking in Marijuana Charge.”  Double The Commonwealth thereafter moved to dismiss the marijuana charge.   Appellant objected, arguing that this Court had ordered a retrial and since the Commonwealth had not complied with such he was entitled to have the entire judgment vacated.   On August 6, 2008, the trial court denied Appellant's motion to vacate all counts in his 1984 conviction, but did, however, dismiss the trafficking in marijuana conviction with prejudice.

Appellant thereafter filed numerous pro se pleadings in the trial court and this Court.   Relevant to this appeal, however, is his appointed counsel's October 2009 supplemental CR 60.02 motion, wherein a double jeopardy issue regarding Appellant's 1984 convictions was first raised.   Specifically, counsel argued that the Commonwealth erroneously used a single prior misdemeanor conviction to enhance his sentences for both trafficking in cocaine and possession of a controlled substance.   By order entered November 12, 2009, the trial court denied the CR 60.02 motion.   Appellant thereafter appealed to this Court.

Appellant's numerous appeals have all been consolidated into this matter.   The sole issue herein concerns the Commonwealth's use of a single prior misdemeanor conviction to enhance two of the offenses at trial.   Appellant argues that the double enhancement violated his constitutional protection against double jeopardy.   We need not address the merits of the issue as Appellant's motion was clearly not timely.

A denial of a CR 60.02 motion is reviewed under an abuse of discretion standard.  White v. Commonwealth, 32 S.W.3d 83 (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.”  Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky.2004) (Quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).   Thus, we will affirm the trial court's decision absent some showing of a “flagrant miscarriage of justice.”  Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).

A CR 60.02 motion is available only in extraordinary situations not otherwise subject to relief by direct appeal or by way of RCr 11.42.  Gross, 648 S.W.2d at 856.   Before the movant is entitled relief under CR 60.02, he or she must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.  Id. According to our Supreme Court, the procedural structure to attack a conviction in a criminal case is to “directly appeal that judgment, stating every ground of error which it is reasonable to expect that [the defendant] or his counsel is aware of when the appeal is taken.”  Id. at 857.   Next, the defendant must “avail himself of RCr

11.42 ․ as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him.”  Id. The final disposition of the RCr 11.42 motion, “or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding.”  Id. The reason why CR 60.02 should be sought last is because this rule “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), cert. denied, 521 U.S. 1130 (1997) (Quoting RCr 11 .42(3)).

Herein, Appellant did not raise a double jeopardy claim in either his direct appeal or his motion for RCr 11.42 relief;  instead, he raised it for the first time in a CR 60.02 motion twenty-four years post-conviction and nine years after his sentence was presumably satisfied.   Accordingly, as Appellant fails to assert any extraordinary basis to justify relief under CR 60.02, we hold that the trial court did not abuse its discretion by denying his motion.

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