Opinion
NO. 2017-CA-000075-MR
05-31-2019
CLINTON L. BREWER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Clinton L. Brewer, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 00-CR-00282-001 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Clinton Brewer, pro se, appeals from an order of the McCracken Circuit Court denying his motion filed pursuant to Kentucky Rules of Civil Procedure (CR) 60.03. We conclude that the trial court did not err in summarily denying Brewer's successive post-conviction motion filed more than twelve years after Brewer's conviction.
In 2001, Brewer was indicted for wanton murder, two counts of robbery in the first degree, and burglary in the first degree. A superseding indictment was handed down, charging Brewer with complicity to wanton murder, two counts of robbery in the first degree, and burglary in the first degree. On March 14, 2001, the Commonwealth filed notice of intent to seek the death penalty.
The jury found Brewer guilty of murder, two counts of robbery in the first degree, and burglary in the first degree. Before the penalty phase, Brewer entered a guilty plea. Pursuant to a plea agreement, the Commonwealth recommended life imprisonment. On July 1, 2002, Brewer was convicted of murder, two counts of robbery in the first degree, and burglary in the first degree, and sentenced to life imprisonment.
Two years later, Brewer filed a motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 alleging, among other things, ineffective assistance of counsel. That motion was denied on September 8, 2004. Brewer's appeal from the trial court's order was dismissed as untimely by this Court.
On August 15, 2005, Brewer filed a CR 60.02 motion again alleging, among other things, ineffective assistance of counsel. That motion was denied on August 30, 2005. Brewer filed a pro se appeal. Although this Court noted that a CR 60.02 motion may have been the incorrect motion to bring after the denial of Brewer's RCr 11.42 motion and some of the issues were raised in the original RCr 11.42 motion and decided against Brewer, this Court nevertheless gave Brewer the benefit of the doubt and addressed the merits of his claims. Brewer v. Commonwealth, 2005-CA-002444-MR, 2008 WL 465255 (Ky.App. 2008) (unpublished).
Undeterred, on February 5, 2009, Brewer filed a second CR 60.02 motion that the trial court denied. Brewer's appeal was dismissed on procedural grounds by this Court.
Brewer filed a CR 60.03 motion on May 11, 2015, alleging, among other things, ineffective assistance of counsel. The trial court denied Brewer's motion on May 28, 2015, ruling that it was not filed within a reasonable time and that the issues had been previously raised and decided in Brewer's prior post-conviction attacks. This appeal followed.
CR 60.03 provides as follows:
Rule 60.02 shall not limit the power of any court to entertain an independent action to relieve a person from a judgment, order or proceeding on appropriate equitable grounds. Relief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02, or would be barred because not brought in time under the provisions of that rule.In Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005), abrogated on other grounds by Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) (quoting Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2nd Cir. 1997)), the Court held that relief is available under CR 60.03 only if the movant can "(1) show that [the movant has] no other available or adequate remedy; (2) demonstrate that movants' own fault, neglect, or carelessness did not create the situation for which they seek equitable relief; and (3) establish a recognized ground—such as fraud, accident, or mistake—for the equitable relief."
The Commonwealth argues that Brewer's motion was not an independent action but was actually a successive CR 60.02 motion having been filed under his original indictment. We refrain from discussing the Commonwealth's argument because under either rule, Brewer's motion was untimely filed.
In Foley v. Commonwealth, 425 S.W.3d 880, 888 (Ky. 2014), our Supreme Court held that the appellant in that case was not entitled to relief under CR 60.03 because he was not entitled to relief under CR 60.02. Under either rule, relief cannot possibly be available to Brewer unless his motion was filed within a reasonable time from the date of his judgment and conviction. Id. "What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 [or CR 60.03] is a matter that addresses itself to the discretion of the trial court." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Brewer did not file his CR 60.03 motion until more than twelve years after his judgment and conviction. The trial court did not abuse its discretion when it concluded that twelve years was not a reasonable time and denying the motion without an evidentiary hearing.
Moreover, neither CR 60.02 or CR 60.03 may be used to relitigate issues which could have been or were raised and decided on direct appeal or in an RCr 11.42 proceeding. Gross, 648 S.W.2d at 856. This is Brewer's fourth post-conviction motion and all issues were or could have been raised in his prior RCr 11.42 motion and in his two CR 60.02 motions. We cannot say that the trial court erred when it ruled that he was attempting to relitigate issues previously raised and summarily denied his motion.
The order of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Clinton L. Brewer, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky