Opinion
NO. 2017-CA-000957-MR NO. 2017-CA-001086-MR NO. 2018-CA-000587-MR
04-26-2019
JAMES MARK DUNN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND JAMES MARK DUNN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND JAMES MARK DUNN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANTS: James Mark Dunn Pro Se West Liberty, Kentucky BRIEF FOR APPELLEES: Andy Beshear Attorney General M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE ROBERT J. JACKSON, JUDGE
ACTION NO. 95-CR-00036 APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE ROBERT J. JACKSON, JUDGE
ACTION NO. 95-CR-00036 APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 95-CR-00036 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, KRAMER, AND MAZE, JUDGES. JONES, JUDGE: The three above-captioned appeals were filed by Appellant, James Mark Dunn. In each appeal, Dunn challenges the trial court's refusal to grant post-conviction relief. We ordered the appeals consolidated to the extent they would be considered simultaneously by the same three-judge panel. Now having reviewed the record, in conjunction with all applicable legal authority, we affirm as to each appeal.
I. BACKGROUND
As presented at trial, the evidence showed that Dunn and an accomplice lured Bradley Johnson to an abandoned rock quarry because they wanted to steal his car. After some initial difficulty, the two managed to cause Bradley to fall off a sheer cliff. Not satisfied that they had managed to kill Bradley, they went to the bottom of the quarry, located Bradley and crushed his skull with a big rock. Before disposing of Bradley's body in a nearby pond, they stole twenty-one dollars from his wallet. They fled the scene in Bradley's car.
Following a jury trial in Garrard Circuit Court, Dunn was convicted of murder and first-degree robbery. On April 16, 1996, the trial court entered a judgment of conviction and sentence. Dunn was sentenced to life without the possibility of parole for a minimum of twenty-five years' imprisonment for the murder and twenty years' imprisonment for the first-degree robbery.
On direct appeal to the Kentucky Supreme Court, Dunn argued his convictions should be reversed because the trial court erroneously: (1) denied Dunn's motion for a trial continuance to allow time for further evaluation by mental health experts; (2) denied Dunn's motion for a change of venue; (3) refused to strike jurors who were unfairly biased toward imposing the death penalty; (4) denied his request for additional preemptory strikes; and (5) erred in using a verdict form that improperly suggested that if the jury believed an aggravating circumstance existed they had to either recommend Dunn be sentenced to death or imprisoned for life without the possibility of parole for twenty-five years. Dunn v. Commonwealth, 96-SC-0406-MR, unpublished, (Aug. 26, 1999). The Kentucky Supreme Court affirmed Dunn's judgment of conviction and sentence after reviewing the merits of each alleged error. Id.
Dunn then moved the trial court for relief pursuant to RCr 11.42 on the basis that his attorneys argued inconsistently in pretrial hearings and motions seeking a continuance whether the mental health evaluation was for a possible guilt phase defense or only the penalty phase. The trial court denied Dunn's motion without an evidentiary hearing, and he appealed to this Court. We concluded that "it was not possible to conclude from this record that the decision to argue inconsistently to the trial court was a tactical decision." Dunn v. Commonwealth, 2002-CA-000742-MR, 2004 WL 1299863, at *4 (Ky. App. June 11, 2004). Nevertheless, we affirmed. We explained that even if counsels' conduct was ineffective, Dunn was not entitled to postconviction relief because he had failed to demonstrate as part of his RCr 11.42 motion that "there was any actual basis for pursuing guilt phase defenses at trial." Id. The Kentucky Supreme Court denied Dunn's petition for discretionary review.
Kentucky Rules of Criminal Procedure.
Dunn claims he spent the next thirteen or so years trying to obtain his attorney records from the Department of Public Advocacy ("DPA") and the trial court. Dunn asserts that he was not able to review his files until January 17, 2017, when the DPA finally turned them over to him. After reviewing the files, Dunn allegedly discovered "numerous documents that give light to multiple issues and violations that he had never, nor could have ever known about without seeing these records."
In February of 2017, over two decades after his original trial, Dunn filed a second RCr 11.42 motion with the trial court. Therein, Dunn alleged his trial counsel were ineffective for: (1) failing to request a juror who was related to the County Attorney to be stricken for cause; (2) failing to expand their investigation into Dunn's extensive medical and psychological life history and presenting evidence for a guilt phase defense; and (3) failing to present relevant and critical medical and clinical life history evidence during the penalty phase. Dunn also asserted that he was entitled to relief based an opinion rendered by the United States Court of Appeals for the Sixth Circuit, Phillips v. White, 851 F.3d 567 (6th Cir. 2017), which Dunn characterizes as a "substantial change in the law that directly affects [his] case." The trial court denied Dunn relief because his petition was successive. Dunn's appealed the trial court's denial of his RCr 11.42 to this Court; this is appeal number 2017-CA-000957-MR.
Dunn's attempt to secure relief from his criminal judgment did not stop there. Dunn filed a motion for relief under CR 60.02. The claims set forth in this motion mirrored the claims Dunn raised in his second RCr 11.42 motion. The trial court denied Dunn's motion after concluding that "Defendant raises no new issues and none that justify setting aside the judgment under CR 60.02(e) & (f)." Dunn appealed the denial; this is appeal number 2017-CA-001086-MR.
Kentucky Rule of Civil Procedure.
Undaunted, Dunn filed another CR 60.02 motion. In this motion, Dunn argued that his trial counsel was ineffective for failing to request the trial court to dismiss certain jurors who equivocated as to their ability to be fair. The trial court denied this motion in an order on March 15, 2018. The order provides: "trial counsel's decisions about jurors are based on information provided on the jury qualification form, as well as the answers provided in voir dire, the juror's demeanor, and sometimes just a 'gut feeling.' It is a judgment call entitled to significant deference." Movant has failed to state sufficient ground under CR 60.02 (b) & (f) to set aside the judgment. Dunn appealed the denial; this is appeal number 2018-CA-000587-MR.
II. ANALYSIS
A. Appeal No . 2017-CA-000957-MR
Dunn's first appeal concerns the trial court's denial of his RCr 11.42 motion as successive. Dunn asserts that he should not be precluded from bringing a second motion because the facts on which it is based were not discovered by him until a few months before he filed the motion and that one of the grounds he raises in the motion is based on a change of law that did not occur until 2017.
In relevant part, RCr 11.42 provides as follows:
(1) A prisoner in custody under sentence or a defendant on probation, parole or conditional discharge who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it.
. . .
(3) 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.
. . .
(10) Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
If the judgment becomes final before the effective date of this rule, the time for filing the motion shall commence upon the effective date of this rule. If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's opportunity to present relevant evidence to contradict or impeach the movant's evidence.Id.
Because RCr 11.42(3) provides that the motion must set forth "all grounds for holding the sentence invalid of which the movant has knowledge" we bar successive motions based on claims that could have been raised in the original RCr 11.42. "The courts have much more to do than occupy themselves with successive 'reruns' of RCr 11.42 motions stating grounds that have or should have been presented earlier." Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970).
Dunn argues that the bar against successive petitions should not apply to him because he did not receive a copy of this attorney file and records until January 2017, despite his efforts to obtain it years earlier. However, Dunn was present at his criminal trial and was aware of the issues raised as part of his direct appeal and first RCr 11.42 motion. The issues Dunn raises are matters that could or should have been known to him when he originally sought relief pursuant to RCr 11.42. Although Dunn claims to have lacked knowledge of the specific details necessary to bring the claims until he obtained his attorney file from the DPA in 2017, his first RCr 11.42 motion belies that argument. The pro se handwritten memorandum Dunn filed in support of his first motion is seventeen pages long. It references numerous dates, trial orders, experts, and specific failures he attributed to his trial counsel, including some of the same claims related to his counsels' failure to present mitigation evidence. These claims, that arose out of Dunn's trial, could and should have been brought as part of his first motion. He cannot raise them now, well over two decades later.
This brings us to Dunn's last claim which is predicated on Phillips v. White, 851 F.3d 567 (6th Cir. 2017). Dunn claims the results of his direct appeal and/or his first RCr 11.42 motion would have turned out differently had Phillips been the law at that time. We disagree.
As a primary matter, we do not believe Phillips is analogous. We will not discuss the pertinent differences, however, because it would be an exercise in futility. Even if Phillips were directly on point, it would not give way to a cognizable RCr 11.42 claim. State courts and lower federal courts, like the Sixth Circuit Court of Appeals, exercise concurrent jurisdiction. U.S., ex rel. U.S. Attorneys ex rel. Eastern, Western Districts of Kentucky v. Kentucky Bar Ass'n, 439 S.W.3d 136 (Ky. 2014). "The approach taken by [lower] federal courts may be viewed as persuasive but it is not binding." Id. A decision by the Sixth Circuit Court of Appeals, even if correct, cannot create a "fundamental constitutional right" that state courts must recognize. State courts in this Commonwealth are only required to recognize "fundamental constitutional rights" announced by either the Kentucky Supreme Court or the United States Supreme Court. Dunn has not identified that any such right has been established.
B. Appeal Nos . 2017-CA-001086-MR & 2018-CA-000587-MR
These appeals concern the trial court's denial of Dunn's CR 60.02 motions. Because the motions concern similar claims and are governed by the same standard, we review them together.
In Sanders v. Commonwealth, 339 S.W.3d 427 (Ky. 2011), the Kentucky Supreme Court reviewed CR 60.02's applicability to and use by criminal defendants seeking relief from judgments of conviction. Therein, the Court explained that CR 60.02 is only available where the claim is extraordinary; it is not a substitute for bringing claims "of the usual procedural, evidentiary, and ineffective assistance of counsel variety." Id. at 437.
The Court explained the interplay between RCr 11.42 and CR 60.02 as follows.
We begin by restating a few basic principles relating to CR 60.02 proceedings. First, CR 60.02 allows appeals
based upon claims of error that "were unknown and could not have been known to the moving party by exercise of reasonable diligence and in time to have been otherwise presented to the court." Young v. Edward Technology Group, Inc., 918 S.W.2d 229, 231 (Ky.App. 1995). The rule represents the codification of the common law writ of coram nobis, which allows a judgment to be corrected or vacated based "upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were not discovered until after rendition of judgment without fault of the parties seeking relief." Davis v. Home Indemnity Co., 659 S.W.2d 185, 188 (Ky. 1983) (citing Harris v. Commonwealth, 296 S.W.2d 700 (Ky. 1956)).Id. at 437.
"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." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). The rule is not intended as merely an additional opportunity to raise claims which could and should have been raised in prior proceedings, but, rather, "is for relief that is not available by direct appeal and not available under RCr 11.42." Id. "In order to be eligible for CR 60.02 relief, the movant must demonstrate why he is entitled to this special, extraordinary relief." Barnett v. Commonwealth, 979 S.W.2d 98, 101 (Ky. 1998).
The claims Dunn brings are the "typical" type of claims the Kentucky Supreme Court held are not proper under CR 60.02. They concern issues related to jury selection, the presentation of evidence at his trial, and the effectiveness of his trial counsel. They are not extraordinary and even a cursory review of Dunn's previous appellate filings shows that they could have and should have been brought long ago, even though Dunn might have lacked his complete attorney files. The errors alleged do not rise to the level or fraud and are not extraordinary in any way, shape or form. They are run-of-the-mill arguments that are routinely raised by criminal defendants either on direct appeal or in a timely filed RCr 11.42 motion. Dunn has not offered any compelling or extraordinary reason why we should consider them further, and we decline to do so.
III. CONCLUSION
For the foregoing reasons, we hold that the Garrard Circuit Court did not abuse its discretion and the orders denying Dunn's RCr 11.42 motion and his two CR 60.02 motions are affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: James Mark Dunn
Pro Se
West Liberty, Kentucky BRIEF FOR APPELLEES: Andy Beshear
Attorney General M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky