Opinion
NO. 2016-CA-001605-MR
03-23-2018
DOMINIC T. BUCKNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dominic T. Buckner, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackleford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOE CASTLEN, JUDGE
ACTION NO. 05-CR-00576 OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND NICKELL, JUDGES. NICKELL, JUDGE: Dominic T. Buckner, pro se, has appealed from the Daviess Circuit Court's order denying his CR 60.02 motion for relief from judgment. After a careful review of the record, we affirm because Buckner's claims either were raised previously, or could have been.
Kentucky Rules of Civil Procedure.
On May 2, 2006, Buckner was convicted following a jury trial of wanton murder and kidnapping, victim not released alive. He was sentenced to twenty years' imprisonment for each conviction. The sentences were ordered to run concurrently for a total of twenty years' imprisonment. The Supreme Court of Kentucky affirmed the convictions on direct appeal but remanded for a new sentencing hearing. See Buckner v. Commonwealth, No. 2006-SC-000479-MR, 2008 WL 5051578 (Ky. Nov. 26, 2008) (unpublished). On remand, Buckner was again sentenced to serve twenty years in prison.
Buckner subsequently moved to vacate his sentence pursuant to RCr 11.42 alleging ineffective assistance of counsel. The trial court denied his motion. He appealed, and this Court affirmed in part and remanded in part for a hearing on one of his claims. Buckner v. Commonwealth, No. 2012-CA-000703-MR, 2013 WL 4036415 (Ky. App. Aug. 9, 2013) (unpublished). On remand, the trial court again denied the RCr 11.42 motion following an evidentiary hearing. This Court affirmed. Buckner v. Commonwealth, No. 2014-CA-000147-MR, 2015 WL 1303702 (Ky. App. Mar. 20, 2015) (unpublished).
Kentucky Rules of Criminal Procedure. --------
On August 31, 2016, more than ten years after he was convicted, Buckner filed a CR 60.02 motion for relief from judgment. The trial court denied the motion without convening an evidentiary hearing. This appeal followed.
We review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 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) (internal quotation marks and citation omitted). CR 60.02 "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." Id. "The [CR 60.02] movant must demonstrate why he is entitled to this special, extraordinary relief. Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Additionally, claims brought under CR 60.02(a), (b), or (c) must be brought within one year after the judgment is entered, and claims brought under the remaining sections of CR 60.02 must be brought within a "reasonable time." See CR 60.02.
In the instant case, all of Buckner's claims could have been brought previously. In fact, two of the issues raised before this Court were raised and rejected by the Supreme Court of Kentucky on direct appeal. The remaining issues concern challenges to the indictment and jury instructions, matters that were certainly known or should have been known by Buckner long before the filing of the instant motion for relief. Consequently, because all of his claims were either raised previously, or could have been raised previously, they are not properly before us in this CR 60.02 proceeding. Further, even were they properly before us, our review of the record reveals all of the allegations raised in Buckner's CR 60.02 motion are without merit, as correctly found by the trial court.
For the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Dominic T. Buckner, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackleford
Assistant Attorney General
Frankfort, Kentucky