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Court of Appeals of Kentucky.


NO. 2011–CA–001550–MR

Decided: May 24, 2013

BEFORE:  MAZE, STUMBO AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  Marcus R. Britt, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky



Appellant, Marcus Britt (hereinafter “Britt”) appeals from the Barren Circuit Court's denial of his motion to alter, amend or vacate his judgment of conviction following his trial for complicity to burglary and robbery.   Finding no basis under CR 60.02 for relief from his convictions, we affirm the trial court's denial of Britt's motion.


The Kentucky Supreme Court's synopsis of the facts underlying this case, given upon Britt's direct appeal, proves to be a useful introduction to the current appeal.

On May 4, 2005, in Barren County, Kentucky, Amanda Pytko and Heather Johnson knocked on the door of a trailer belonging to Dallas Flowers.   Flowers, without leaving his seat, told the women to come inside and they entered the trailer through an unlocked door.   The three individuals sat and talked for some time.   Pytko then went to use the restroom.   While Pytko was out of the room, Johnson asked Flowers if he was single and began to get “friendly” and “make advances.”   Upon returning from the restroom, Pytko proceeded outside to smoke a cigarette.   At this point, Johnson pulled out a gun, which Flowers attempted to grab.   Pytko then came back inside the trailer and shot Flowers.   Gilbert Baize, who was waiting outside, quickly entered the premises and, with Pytko's assistance, covered Flowers' arms, legs, and mouth with duct tape.   Pytko pressed a gun against Flowers' head and demanded to know where his money was.   Flowers stated that he kept money hidden in a bookshelf in his bedroom, and Pytko took approximately $10,000 in cash.

After taking the money, Pytko and Johnson met ․ Britt, at a nearby motel, allegedly to share in the cash that had been stolen from Flowers.   According to the testimony of Johnson, Pytko, and Baize, it was [Britt] who formulated the plan to rob Flowers.   All three individuals also stated that [Britt] provided the guns and duct tape.   The testimony showed that Baize's brother, George, was in jail in Warren County at the time of the robbery and that his bond had been set at $500 cash.  [Britt] initially suggested Gilbert Baize rob Flowers in order to secure the money for his brother's release, which Baize declined.   [Britt] then told Gilbert Baize that if he did not rob Flowers, he could not pay rent on a building he was subleasing to the Baize brothers.   If they did not pay him, [Britt] would ultimately lose his lease and they would in turn be homeless.  [Britt] later secured the cooperation of Pytko and Johnson in the robbery scheme.

Approximately two to three days before the actual robbery, Pytko, Johnson, and Baize all went to Flowers' trailer.   Baize remained in a vehicle outside the home, while Pytko and Johnson went inside on the guise of being lost and needing directions.   However, both Pytko and Johnson declined to rob Flowers during this visit.   Pytko later testified that she did not want to return a second time to Flowers' trailer, but that [Britt] threatened to kill her family if she refused.

[Britt] was ultimately convicted by the Barren Circuit Court of complicity to burglary in the first degree and complicity to robbery in the first degree.   [Britt] was acquitted of complicity to assault in the first degree.   The jury recommended a sentence of fifteen years imprisonment on each count, to run consecutively, for a total sentence of thirty years.

Britt v. Commonwealth, 2009–SC–000451–MR, 2010 WL 3377750 (Ky.2010).

Following his convictions, the Supreme Court unanimously upheld the result of Britt's trial.   Britt then filed a motion pursuant to RCr 11.42 on April 7, 2011, alleging that his appellate counsel was ineffective in failing to present “the most reasonable and clear defense actually available.”   The Barren Circuit Court denied this motion without an evidentiary hearing five weeks later.

On June 1, 2011, Britt filed a motion seeking relief from his convictions pursuant to CR 60.02(d), (e) and (f).  As the basis for his motion, Britt argued that appellate counsel during his direct appeal committed fraud affecting the proceedings, that a significant change in law had occurred and that other extraordinary circumstances existed.   The trial court denied this motion, concluding that Britt had failed to state grounds entitling him to CR 60.02 relief.   This appeal follows.

Standard of Review

“Given the high standard for granting a CR 60.02 motion, a trial court's ruling on the motion receives great deference on appeal․”  Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky.1998) (citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996)).   Therefore, on the appeal of a denial of a CR 60.02 motion, the trial court's ruling will not be overturned except for abuse of discretion.  Id.;  Lawson v. Lawson, 290 S.W.3d 691, 693–94 (Ky.App.2009).   To amount to an abuse of discretion, the trial court's decision must be “arbitrary, unreasonable, unfair or unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).   In considering whether the denial of a CR 60.02 was an abuse of discretion, the two factors to be considered are whether the movant had a fair opportunity to present his claim and whether the granting of the relief sought would be inequitable to the other parties.  Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky.1957).


Britt alleges that the Supreme Court's 2010 decision affirming his convictions was obtained through fraud because his appellate counsel was actually “conniving at his defeat” and failed to argue under complicity, rather than conspiracy, law.   Britt further states that the acquittal of one of his co-defendants requires his convictions for complicity to be vacated.   Britt's arguments are meritless.

CR 60.02 is in place to grant relief based on issues that could not have been raised in other proceedings.  Commonwealth v. Gross, 936 S.W.2d 85 (Ky.1996).   It is not available for relief if based on issues known at trial.   Bradley v. Commonwealth, 347 S.W.2d 532 (Ky.1961).   A party seeking relief under CR 60.02 has the burden of showing that his allegations are true and that there is a reasonable certainty that if true, such would have changed the verdict or probably change the result if a new trial were granted.   Commonwealth v. Spaulding, 991 S.W.2d 651, 654 (Ky.1999).   If the record rebuts the moving party's allegations, a hearing on the CR 60.02 motion is not necessary.  Parrish v. Commonwealth, 283 S.W.3d 675, 677–678 (Ky.2009).

Britt fails to provide adequate factual and legal basis for his otherwise self-serving CR 60.02 allegations.   Arguing that the Supreme Court's affirmation of his conviction was obtained through “fraud affecting the proceedings” under CR 60.02(d), Britt claims that his appellate attorney intentionally and secretly worked against him during his direct appeal.   Britt also claims that his attorney failed to argue for his client using the law of complicity, not conspiracy;  the latter, he claims, being the only reasonable course.   The latter argument constitutes a claim of ineffective assistance of appellate counsel of which Britt would have had knowledge when he filed his RCr 11.42 motion in April 2011.   Such a claim, pursuant to Gross and Bradley, supra, cannot be relitigated under the guise of a CR 60.02 motion.   Hence, we decline to do so and we find that the trial court did not abuse its discretion in doing the same.

Regarding Britt's claim that his appellate attorney, in essence, sabotaged his case, Britt falls well short of meeting his burden.   A claim of “fraud affecting the proceedings” under CR 60.02 requires specific proof of “extrinsic fraud,” or fraud which subverts the integrity of the court itself.   Goldsmith v. Fifth Third Bank, 297 S.W.3d 898, 904 (Ky.App.2009) (quoting Rasnick v. Rasnick, 982 S.W.2d 218, 219–220 (Ky.App.1998)).  “Such fraud has been construed to include only the most egregious conduct, such as bribery of a judge or a member of the jury, evidence fabrication, and improper attempts to influence the court by counsel.”  Id. Britt's claim cannot be so construed.

The accusation that Britt's attorney somehow sabotaged his appeal is as baseless as it is serious.   While such an accusation, if true, would seem to undermine the validity of the proceedings, the record reveals no evidence to support Britt's lurid claim and, more importantly, his claim is plead with no factual specificity whatsoever.   Britt seems to merely conclude from the adverse result of his appeal that his attorney intentionally scuttled his case.   Without more, the trial court was neither required, nor should it have been inclined, to entertain such a theory.

Britt next claims, under CR 60.02(e), that his convictions should be set aside because it is “no longer equitable that the judgment should have prospective application” due to what Britt claims has been “a significant change in the facts and law of this case which has occurred” since the Supreme Court affirmed his conviction.   However, CR 60.02(e) concerns changes in controlling law which make prospective application of a past judgment unjust.   Britt's allegation that facts and law within his case have changed is untrue, unproven and not relevant to CR 60.02(e).   Once again, Britt attempts to challenge the evidence in his case, as it was known or presented at trial.   Britt simply finds fault with the rulings and results of his trial and once again wishes to relitigate the facts and law, both unchanged since trial, to achieve a different result.   We are not so inclined.

Britt fails to meet his burden of proving that controlling law has so changed as to render his convictions unjust.   Having presented no change in controlling law, the trial court acted within its discretion in denying Britt's CR 60.02 motion on these grounds.

Finally, Britt briefly and hollowly argues that the catchall provision of CR 60.02(f) applies because “extraordinary circumstances are present.”   After making this conclusory statement, Britt once again provides no factual or legal support for it.   Likewise, we see no reason to discuss this claim at length.   As Britt has not met his burden of proving the necessity of CR 60.02 relief under section (e) of the Rule, the trial court did not abuse its discretion in denying him such relief.


Britt's motion alleges no legitimate bases for relief under CR 60.02, the use of which is reserved to the most extreme of situations.   Furthermore, his motion alleges nothing unique or new to his case and does little more than rehash old defenses and rekindle his disagreement with the trial court, his attorneys and the jury's decision to convict him.

Nevertheless, we have granted Britt the consideration to which he is entitled and, finding no legal or factual basis for his claims and finding no fault in the trial court's conclusion, we find that Britt's CR 60.02 motion was properly denied.   Accordingly, the order of the Barren Circuit Court is affirmed.