Opinion
NO. 2011-CA-001247-MR
08-03-2012
THOMAS EDWARD BURKE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Thomas E. Burke, Jr., Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 03-CR-00689
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND NICKELL, JUDGES. CAPERTON, JUDGE: The Appellant, Thomas Burke, appeals the June 16, 2011, order of the Warren Circuit Court denying his successive Kentucky Rules of Civil Procedure (CR) 60.02 motion and contemporaneous post-judgment findings. The Commonwealth argues that the court below was correct in denying the motion and post-judgment findings. Following a thorough review of the record, the arguments of the parties, and the applicable law, we affirm.
On November 5, 2003, Burke was indicted in Warren Circuit Court for three counts of sexual abuse in the first degree, three counts of sodomy in the first degree, and possession of matter portraying a minor in a sexual performance, all of which were alleged to have occurred between July 1, 2003, and September 30, 2003. These charges were alleged to have been committed against his children, a son who was six years old, and a daughter who was two years old. Pursuant to a plea agreement prior to trial, on November 14, 2004, Burke entered a guilty plea to three counts of sodomy in the first degree. He was sentenced in accordance with that agreement on December 16, 2004, to 27 years on each count, to run concurrently, for a total sentence of 27 years.
Burke subsequently filed a shock probation motion, which was denied. On May 11, 2005, Burke filed a motion to vacate pursuant to CR 60.02 due to newly discovered evidence. Subsequently, on November 21, 2005, he filed a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. That motion was supplemented by counsel on April 26, 2006, and on August 31, 2006, the court held a hearing on the two motions.
During the course of the hearing, Burke acknowledged that he told his attorney and his investigator that he was guilty. He also made a direct admission to at least one count in his videotaped confession. Burke also acknowledged during the plea hearing in November of 2004, that he was pleading guilty to the three counts against him because he was in fact guilty and for no other reason. Moreover, during the course of the evidentiary hearing below, trial counsel stated that Burke had admitted that his son had performed oral sex on him. Counsel testified that Burke never made a claim of innocence, and also made an admission of guilt to another attorney in the office. In addition, counsel had knowledge of the letters from Burke's wife prior to the guilty plea, as well as knowledge of his sister's alibi claims. It was counsel's opinion that this evidence would not overcome the weight of the confession.
The circuit court denied the motions by written order entered on October 4, 2007. Therein, the court held that Burke did not substantiate his claim of newly discovered evidence or perjured testimony in that the evidence was known prior to his guilty plea. The court also held that Burke did not carry the burden of proving that he would not have pled guilty if he had listened to the tapes of his wife and his son.
An appeal to this Court followed in which this Court held, in an April 24, 2009, opinion, that the evidence was not newly discovered insofar as it was known prior to Burke's plea, and that CR 60.02 relief was not warranted. This Court also found that because the evidence was known prior to Burke's plea, his claim that counsel did not conduct an adequate investigation also failed.
Burke then filed for relief in federal court before again resuming his claims in state court. On April 21, 2010, he filed a second CR 60.02 motion and/or motion for modification of sentence under Kentucky Revised Statutes (KRS) 532.070. Burke then filed a supplemental motion thereto, incorporating claims of ineffective assistance of counsel. Finally, Burke filed yet another motion pursuant to CR 60.02, as well as a supplement thereto.
The circuit court summarily denied all motions in an order entered on June 16, 2011, noting the successive and specious nature of the arguments. Burke now appeals as a matter of right, raising six arguments which the Commonwealth asserts are substantially the same claims raised in the prior appeal.
As noted, in his brief to this Court, Burke sets forth six arguments: (1) that the trial court erred and violated Burke's due process rights under the 5th, 6th, and 14th amendments to the U.S. Constitution, as well as sections 2, 7, 11, and 13 of the Kentucky Constitution by refusing to grant a new trial and "any other relief" due to Burke based upon the statements and facts contained in his post-conviction motions; (2) that he was denied effective assistance of counsel when trial counsel failed to inform him of the Commonwealth's witness Shannon Burke's letters to the judge, medical evidence, and copies of jail visitation records, thereby depriving Burke of the opportunity to make an intelligent decision on whether to plead guilty; (3) that he received ineffective assistance of counsel and was denied due process when his defense counsel failed to adequately investigate his claims and call exculpatory alibi witnesses to testify on his behalf; (4) that his guilty plea was not knowing, intelligent, or voluntary because his counsel never adequately explained alternative choices of action nor conducted an adequate investigation; (5) that he was denied due process, equal protection under the law, and effective assistance of counsel because his counsel failed to conduct discovery, and did not adequately defend the case; and (6) that he received ineffective assistance of counsel and was denied due process of law when his counsel failed to adequately investigate his claims and call exculpatory alibi witnesses to testify on his behalf.
The Commonwealth asserts that both the statement of the case included in the brief, and the first argument are excerpted verbatim from Burke's brief submitted in his former appeal. Further, it argues that the second, third, fifth, and sixth arguments all raise claims of ineffective counsel, claims which were also addressed and resolved in the prior action. Finally, the Commonwealth states that the fourth argument, concerning whether or not the guilty plea was voluntary, was also addressed in the previous case. Our review of the record reveals these assertions to be correct. Accordingly, the court below correctly denied Burke's motion, and we affirm.
See Burke v. Commonwealth, 2009 WL 1097930 (Ky. App. 2009)(2007-CA-2150-MR).
See id.
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In so finding, we note that in Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), our Kentucky Supreme Court, citing Howard v. Commonwealth, stated:
In Howard v. Commonwealth, 364 S.W.2d 809, 810 (Ky. 1963), we stated:
"It has long been the policy of this court that errors occurring during the trial should be corrected on direct appeal, and the grounds set forth under the various subsections of CR 60.02 deal with extraordinary situations which do not as a rule appear during the progress of a trial. Although the rule does permit a direct attack by motion where the judgment is voidable - as
distinguished from a void judgment - this direct attack is limited to specific subsections set out in said rule ..."
RCr 11.42 provides a procedure for a motion to vacate, set aside, or correct sentence for "a prisoner in custody under sentence or a defendant on probation, parole, or conditional discharge." It provides a vehicle to attack an erroneous judgment for reasons which are not accessible by direct appeal. In subsection (3) it provides that "the motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding."
Rule 60.02 is part of the Rules of Civil Procedure. It applies in criminal cases only because Rule 13.04 of the Rules of Criminal Procedure provides that "the Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure."
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter, in CR 60.02. CR 60.02 is not intended merely as an additional opportunity to raise Boykin defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42. The 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.
Having reviewed the record and the arguments of the parties, this Court is of the opinion that Burke attempted to utilize his CR 60.02 motion as an additional opportunity to raise his previously litigated RCr 11.42 claims, and as an opportunity to reargue other previously litigated matters. Sub judice, Burke has raised a number of issues which were already raised, litigated, and resolved in a previous action. In 2007, Burke filed a CR 60.02 motion alleging newly discovered evidence, and perjury or falsified evidence, a motion which was considered and denied by the court on October 4, 2007. At that time, the court found that Burke did not receive ineffective assistance of counsel, and that no new evidence existed that could be raised in a new trial. Burke has repeatedly made the same motions on the same evidence, which have previously been denied. Thus, we are compelled to deny them again. Our law is clear that a final decision of the court is the law of the case, and is conclusive of the questions it resolved. It is binding upon the parties and the courts. Martin v. Frasure, 352 S.W.2d 817, 818 (Ky. 1961).
Wherefore, for the foregoing reasons, we hereby affirm the June 16, 2011, order of the Warren Circuit Court denying Burke's pro se post-judgment motions pursuant to CR 60.02, KRS 532.070, and KRS 500.110.
ALL CONCUR. BRIEFS FOR APPELLANT: Thomas E. Burke, Jr., Pro Se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky