Opinion
NO. 2012-CA-001563-MR
03-14-2014
RALPH GENTRY, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Ralph Gentry, Jr., Pro Se Burgin, Kentucky BRIEF APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR, JUDGE
ACTION NO. 03-CR-001371
OPINION
AFFIRMING
BEFORE: CAPERTON, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Ralph Gentry, Jr., brings this pro se appeal from an August 16, 2012, order of the Jefferson Circuit Court, denying his motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We affirm.
Pursuant to a plea agreement with the Commonwealth entered into at trial in 2005, appellant pleaded guilty to first-degree manslaughter, first-degree burglary, tampering with physical evidence and third-degree criminal mischief. He was sentenced to a total of twenty-five-years' imprisonment.
In April of 2008, appellant filed a motion to vacate and set aside his conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. The circuit court denied the RCr 11.42 motion which was affirmed by a panel of this Court on March 19, 2010, Appeal No. 2008-CA-001886-MR. Appellant subsequently filed the underlying CR 60.02 motion in 2011 to set aside his guilty plea and sentence of imprisonment. By order entered August 16, 2012, the circuit court denied appellant's CR 60.02 motion. This appeal follows.
Appellant contends the circuit court erred by denying his CR 60.02 motion. He claims entitlement to relief because his sentence of imprisonment violates the constitutional prohibition against double jeopardy and further alleges the Commonwealth has engaged in selective and vindictive prosecution.
It is well-established that the remedy provided under CR 60.02 is extraordinary and only available to raise issues that could not have been raised in other proceedings. McQueen v. Com., 948 S.W.2d 415 (Ky. 1997). Therefore, CR 60.02 is not available to assert issues that could have been raised by direct appeal or RCr 11.42 motion. Appellant's argument that his sentence of imprisonment violates double jeopardy and that the Commonwealth has engaged in selective or vindictive prosecution against him should have been readily known to appellant at the time of entry of the guilty plea in 2005. Thus, these arguments are not proper in a CR 60.02 motion but rather should have been raised by direct appeal or other collateral proceeding. Gross v. Com., 648 S.W.2d 853 (Ky. 1983); Meredith v. Com., 296 S.W.2d 705 (Ky. 1956). Accordingly, we are of the opinion that the circuit court properly denied appellant's CR 60.02 motion for relief.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Ralph Gentry, Jr., Pro Se
Burgin, Kentucky
BRIEF APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky