Opinion
NO. 2015-CA-000064-MR NO. 2015-CA-000845-MR
05-13-2016
LUTHER CREECH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Luther Creech, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 08-CR-00092 OPINION
AFFIRMING
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BEFORE: DIXON, MAZE, AND STUMBO, JUDGES. MAZE, JUDGE: Luther Creech appeals from an order of the Garrard Circuit Court denying his motion made pursuant to CR 60.02. We affirm.
Kentucky Rules of Civil Procedure.
Creech was charged with murder for beating, stabbing, and choking his wife to death. After a judge initially found him incompetent to stand trial, Creech underwent a period of treatment and evaluation at the Kentucky Correctional Psychiatric Center (KCPC) until the court ultimately found him capable of participating in his defense. In accordance with an offer from the Commonwealth, Creech subsequently entered a plea of guilty but mentally ill pursuant to KRS 504.130. According to this agreement, the trial court sentenced Creech to twenty-four years' imprisonment. The trial court entered its judgment on March 22, 2010.
Kentucky Revised Statutes.
KRS 504.130-Grounds for finding defendant guilty but mentally ill.
Thereafter, Creech filed a pro se motion pursuant to RCr 11.42, claiming that his plea was involuntary due to ineffective assistance of counsel. Specifically, he asserted that his counsel misled him by misrepresenting facts about the case; that counsel used tactics such as intimidation to coerce him into accepting the plea offer because she had not prepared for trial; and finally, that counsel failed to investigate possible defenses, specifically the viability of an insanity defense. The trial court summarily denied Creech's motion and this Court affirmed on appeal. See Creech v. Commonwealth, 2011-CA-000127-MR, 2012 WL 4036268 (Ky. App. 2012).
Kentucky Rules of Criminal Procedure.
Creech subsequently filed a pro se motion pursuant to CR 60.02 to vacate the judgment or set aside his sentence. In that motion, Creech again asserted that trial counsel had provided him with fraudulent and misleading advice and that he entered his plea involuntarily. The trial court denied this motion and we again denied relief based on the fact that Creech raised these issues in his RCr 11.42 motion. Creech v. Commonwealth, 2012-CA-001284, 2012-CA-002024, 2012-CA-002025 (Ky. App. 2013) (appeals combined for briefing purposes).
On December 20, 2014, Creech again moved the trial court for relief pursuant to CR 60.02. In his motion, Creech once again claimed that his guilty plea was "coerced not voluntary or with true understanding[.]" The trial court summarily denied this motion on December 22, 2014, noting that all issues had been previously addressed. This appeal followed.
Creech filed two identical briefs under Appeal Nos. 2015-CA-00064-MR and 2015-CA-00085-MR. These appeals have been consolidated. --------
We review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).
The Kentucky Supreme Court has emphasized that "[t]he 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." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). The Court has repeatedly emphasized that CR 60.02 "is available only to resolve issues that could not have been raised at trial, on direct appeal, or by a motion for relief under RCR 11.42." Winstead v. Comonwealth, 327 S.W.3d 479 (Ky. 2010) (quoting Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005)). See also Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky.2008) and Gross, 648 S.W.2d at 856.
Creech's allegations of ineffective assistance of counsel and an involuntary guilty plea either were or could have been raised in his RCr 11.42 motion. The trial court, therefore, did not abuse its discretion in summarily denying his motion, and the order of the Garrard Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Luther Creech, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky