APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

walter naylor APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–002009–MR

Decided: February 24, 2012

BEFORE:  CAPERTON, CLAYTON, AND VANMETTER, JUDGES. BRIEF FOR APPELLANT:  Walter Naylor, Pro Se Wheelwright, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

This is an appeal of the denial of the defendant Walter Land Naylor's motion for relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02.   Based upon the following, we affirm the decision of the trial court.

BACKGROUND INFORMATION

Naylor was indicted by the Fayette County Grand Jury on June 23, 1998, on four counts of solicitation to commit murder.   The indictment came about after charges were filed against Naylor for attempting to arrange the murder of his ex-girlfriend and their child.   On October 16, 1998, Naylor plead guilty to two of the four counts and was sentenced to fifteen years for each count, to run consecutively for a total of thirty years.

On October 3, 2006, Naylor filed a CR 60.02 motion with the Fayette Circuit Court (the trial court) to alter or amend his sentence.   He contended that his actions regarding the solicitation were one single course of conduct and, therefore, he could not be convicted of two counts.   The trial court denied Naylor's 2006 motion and he appealed the decision to the Kentucky Court of Appeals.   A panel of this Court affirmed the denial of the CR 60.02 motion, finding as follows:

We find that Naylor's motion does not show any extraordinary circumstances warranting relief from his sentence.   First, a motion brought under CR 60.02(f) must be brought “within a reasonable time.”   The basis for the motion involves only the sufficiency of the allegations in the indictment, and any such defect should have been apparent at the time he entered his guilty plea.   Naylor makes no showing that he exercised reasonable diligence in bringing this motion to the court.

Second, it is well-established that a knowing and voluntary plea of guilty waives any defense that a defendant may have except failure of the indictment to charge an offense.  Bush v. Commonwealth, 702 S.W.2d 46 (Ky.1986).   Further, a claim of insufficient evidence must be made on direct appeal, not in a post-conviction motion.   See Boles v. Commonwealth, 406 S.W.2d 853, 855 (Ky.1966).   Therefore, any lack of specificity in the indictment is not properly presented on a motion pursuant to CR 60.02(f).

And finally, the record clearly refutes Naylor's contention that the Commonwealth's proof only supports a single charge of solicitation to commit murder.   As part of the plea agreement, the Commonwealth agreed to dismiss the charges that Naylor attempted to solicit the murder of Christeon's child.   However, the Commonwealth presented evidence that Naylor solicited two different individuals, on two separate occasions, to have Christeon killed.   These facts would clearly support separate charges.   See Wyatt v. Commonwealth, 219 S.W.3d 751 (Ky.2007).   Consequently, the trial court did not abuse its discretion in denying Naylor's motion to alter his sentence.

2006–CA–002377–MR.

On September 27, 2010, Naylor filed a second pro se CR 60.02 motion with the trial court.   In this motion, Naylor contended that his sentences should run concurrently for a total of fifteen years.   He argued that his codefendant, Robert McIntosh, received a lesser sentence even though he faced more charges than Naylor.   He also asserted that McIntosh had a prior criminal history while he did not.

The trial court denied Naylor's motion, finding that this issue was inappropriate for CR 60.02 relief.   Naylor then brought this appeal.

STANDARD OF REVIEW

We review the denial of a CR 60.02 motion under an abuse of discretion standard.  White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000);  Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996).  “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).   Therefore, we affirm the lower court's decision unless there is a showing of some “flagrant miscarriage of justice.”  Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).

DISCUSSION

Motions pursuant to CR 60.02 are for the purpose of allowing a court to correct errors in judgments.   As set forth in Gross, at 856, it is for errors that:

(1) had not been put into issue or passed on;

(2) were unknown and could not have been known to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court, or

(3) which the party was prevented from so presenting by duress, fear or other sufficient cause.

CR 60.02(f) allows a party to move the court for relief for “any other reason of an extraordinary nature justifying relief.”   However, it “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.”   McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997).

CR 60.02 provides that a motion under subsection (f) must be brought within a “reasonable” time.  “What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court.”  Gross, 648 S.W.2d at 858.   In this case, Naylor waited ten years after McIntosh was sentenced to bring his CR 60.02 motion.   The motion was not within a reasonable time under CR 60.02.   Further, we agree with the trial court that Naylor has not presented valid grounds for relief.   Thus, we affirm the denial of Naylor's CR 60.02 motion by the trial court.

ALL CONCUR.

CLAYTON, JUDGE: