PAUL JOHNSON APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

PAUL JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–001362–MR

Decided: March 23, 2012

BEFORE:  CLAYTON, MOORE, AND NICKELL, JUDGES. BRIEF FOR APPELLANT:  Paul A. Johnson, Pro se Central City, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Paul Johnson appeals the Bath Circuit Court's order denying his CR 60.02 motion for relief from the court's judgment convicting him of two counts of complicity to incest.   After a careful review of the record, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Johnson was originally charged with two counts of first-degree sodomy;  one count of incest;  one count of incest with a minor;  and one count of intimidating a participant in the legal process.   He was also charged as being a second-degree persistent felony offender (PFO–2nd).   Subsequently, a superseding indictment was entered, which again charged the aforementioned counts, but added two counts of complicity to incest.

Johnson entered a guilty plea to the two counts of complicity to incest and, in exchange for his guilty plea, the Commonwealth recommended to dismiss the remaining counts, and to sentence Johnson to six years of imprisonment on both counts, to be served concurrently to each other and consecutively to any other sentence.   The circuit court entered its judgment in accord with the Commonwealth's recommendation.   Therefore, Johnson was sentenced to a total of six years for the two counts of complicity to incest in this case.

Johnson moved for a modification of the judgment, requesting that he not be required to complete the sex offender treatment program.   The court denied his motion.

Johnson filed a motion to vacate the judgment pursuant to RCr 11.42, contending that he received the ineffective assistance of counsel when counsel misadvised him as to his parole eligibility.   The circuit court denied Johnson's RCr 11.42 motion.   Johnson appealed, and this Court entered an order requiring him to show cause why the appeal should not be dismissed due to his failure to timely file a notice of appeal.   Johnson responded to the show cause order, but this Court ultimately dismissed the appeal as untimely filed.

Johnson next filed a motion to withdraw his guilty plea, alleging that his guilty plea was unknowingly and involuntarily entered.   The circuit court denied that motion.   Johnson filed a notice of appeal.   Again, however, following the entry of an order to show cause, this Court dismissed the appeal as untimely filed.

Johnson moved for a copy of the grand jury transcript from the superseding indictment, and the court granted his request.   Johnson then filed his CR 60.02 motion for relief from the circuit court's judgment.   He contended that he had obtained the tapes of the grand jury proceedings.   After reviewing them, he had discovered that the detective from the Kentucky State Police who had testified before the grand jury alleged that the incestuous acts were committed approximately two months before Johnson was married.   Therefore, Johnson argued that he could not have been guilty of complicity to incest.   The circuit court denied Johnson's CR 60.02 motion.

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

II. ANALYSIS

We review a trial court's denial of a CR 60.02 motion for an abuse of discretion.   See Lawson v. Lawson, 290 S.W.3d 691, 693 (Ky.App.2009).   Johnson brought his CR 60.02 motion pursuant to CR 60.02(b), (c), (d), and/or (e).   Those sections provide 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:  ․ (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;  [or] (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․  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.

The judgment against Johnson was entered on March 6, 2008, and he filed his CR 60.02 motion on August 26, 2010.   To the extent that his motion was brought under CR 60.02(b) and (c), it was not filed within one year of the judgment and it is, therefore, untimely.   See Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky.App.2009) (applying CR 60.02(b)'s time limitation);  Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky.1999) (stating that a CR 60.02 motion based on claims of perjury (as provided in CR 60.02(c)) must be brought within one year after the judgment was entered).

Regardless, even if the motion had been timely filed, it nevertheless lacked merit under every subsection of CR 60.02.   Johnson claims that, upon reviewing the grand jury testimony, he discovered that the detective who testified before the grand jury alleged that the incestuous acts occurred two months before he was married and, consequently, it was impossible for him to have committed the crimes.   Attached to Johnson's CR 60.02 motion was a copy of his marriage certificate, which states that he married his wife on October 17, 2006.   However, the superseding indictment, to which Johnson pleaded guilty, charged that the acts of complicity to incest occurred “on or about [the] 2nd day of February, 2007.”   Therefore, Johnson was married at the time that the acts alleged in the superseding indictment occurred;  his claim lacks merit.

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

ALL CONCUR.

MOORE, JUDGE: