Opinion
NO. 2012-CA-000740-MR
02-22-2013
DWAYNE THOMAS EDWARDS a/k/a ABDUL HAKEEM MALIK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Abdul Hakeem Malik, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 03-CR-003184
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. COMBS, JUDGE: Dwayne Thomas Edwards, a/k/a Abdul Hakeem Malik, acting pro se, appeals from the order of the Jefferson Circuit Court entered March 21, 2012. The court's order denied Edwards's motion for post-conviction relief filed pursuant to the provisions of Kentucky Rule[s] of Criminal Procedure (RCr) 11.42, Kentucky Rule[s] of Civil Procedure (CR) 60.02(e), (f); and CR 60.03. Finding no error, we affirm.
On November 24, 2003, Edwards was allegedly involved in a bank robbery that led to a high-speed police chase through Louisville. The police chase ended in a motor vehicle crash that resulted in the deaths of two people. Edwards was arraigned on December 15, 2003; he pleaded not guilty. The Commonwealth announced that it would seek the death penalty at trial because of the aggravating circumstances underlying the deaths: (1) that they occurred during the course of a robbery and (2) that they resulted from the use of a vehicle in a manner that created a great risk of death to more than one person in a public place.
On October 9, 2006, following a lengthy period of discovery and pre-trial practice, Edwards entered an Alford plea. North Carolina v. Alford, 400 U.S. 25 (1970). He entered his plea as to two counts of capital murder, one count of first-degree robbery, one count of first-degree wanton endangerment, one count of fleeing or evading police, one count of theft of a motor vehicle registration plate, one count of first-degree criminal mischief, and one count of disregarding a traffic control device. In exchange for this plea, the Commonwealth dismissed a persistent felony offender charge against him and agreed to recommend a twenty-year sentence to the court.
On November 7, 2006, following an extensive colloquy with the court conducted pursuant to the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the court accepted Edwards's plea. He was sentenced in accordance with the Commonwealth's recommendation. The judgment was entered by the clerk and became final.
On April 9, 2010, Edwards, pro se, filed a motion pursuant to the provisions of RCr 11.42, CR 60.02(e) and (f), and CR 60.03, seeking relief from his conviction and sentence. He contended that the trial court's judgment of conviction and sentence should be set aside because he pleaded guilty due to ineffective assistance of counsel. He contended that one week before trial, he had been coerced by counsel to plead guilty to the charges against him. He also complained about prejudice attributable to an overly zealous prosecutor.
In an opinion and order entered on March 21, 2012, the Jefferson Circuit Court denied the motion. The court concluded that to the extent that the motion requested relief pursuant to the provisions of RCr 11.42, it had been filed out of time. Addressing the motion as premised upon the provisions of CR 60.02 and CR 60.03, the court concluded that Edwards had not shown that he was entitled to the extraordinary relief he sought since the record amply demonstrated that his guilty plea was voluntary and not coerced. This appeal followed.
Edwards argues that the Jefferson Circuit Court erred by failing to grant his request for post-trial relief pursuant to the provisions of RCr 11.42. We disagree.
In 1994, the provisions of RCr 11.42 were amended to include a time limitation. RCr 11.42(10), the amended provision, provides in pertinent part as follows:
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 herein and has been held to apply retroactively.
The trial court concluded that the RCr11.42 portion of the motion filed by Edwards was untimely because it was not filed within three years of the court's judgment of conviction entered on November 7, 2006. We agree.
The judgment of the trial court constitutes the conclusive judgment in this case. See Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App. 1999)(judgment of the trial court in the event no direct appeal is taken is the conclusive judgment). Edwards did not file his request for relief pursuant to the provisions of RCr 11.42 within three years of the judgment of conviction. Edwards does not contend that either of the exceptions to the limitations period applies. Thus, it was not timely filed.
Next, Edwards contends that the Jefferson Circuit Court erred by denying him relief pursuant to the provisions of CR 60.02. He argues that he is entitled to "take his chances with a jury" and contends that his request for relief under this provision is both timely and adequately supported by the facts. We disagree.
A denial of a CR 60.02 motion is reviewed under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83 (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." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004), quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Relief pursuant to the provisions of CR 60.02 is justified only for reasons of an extraordinary nature not generally subject to relief by way of the provisions of RCr 11.42.
As stated in Gross v. Commonwealth, 648 S.W.2d 853, 856, (Ky. 1983) "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 relitigate the same issues which could "reasonably have been presented" by direct appeal or by RCr 11.42 proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). The purpose of this principle is to prevent the relitigation of issues which either were, should, or could have been litigated in a similar proceeding. Id., citing Gross at 855-856 and RCr 11.42(3).
We conclude that the Jefferson Circuit Court did not err by denying Edwards's motion to vacate the judgment of conviction and sentence.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Abdul Hakeem Malik, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky