Opinion
NO. 2018-CA-001146-MR
04-24-2020
KEVIN JONES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kevin Jones, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 15-CR-00101 OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES. MAZE, JUDGE: Kevin Jones appeals from an order of the Taylor Circuit Court denying his motion to reopen proof on his previously denied motion pursuant to RCr 11.42. We agree with the Commonwealth that Jones fails to show that the evidence was not available during the prior motion or that the new evidence would have compelled a different result. Hence, we affirm.
Kentucky Rules of Criminal Procedure. --------
On July 7, 2015, a Taylor County grand jury returned an indictment charging Jones with one count each of first-degree criminal abuse and first-degree assault. Thereafter, Jones accepted a guilty plea to the assault charge. In exchange for his plea, the Commonwealth agreed to dismiss the criminal abuse charge and to recommend a sentence of twelve years' imprisonment, which the trial court imposed.
On April 10, 2017, Jones filed an RCr 11.42 motion to vacate the conviction, alleging ineffective assistance of counsel. Among other things, he alleged that his trial counsel failed to visit him in jail enough to prepare the case. The trial court conducted an evidentiary hearing at which Jones and his trial counsel testified. Following that hearing, the court denied the motion, finding that trial counsel's records refuted Jones's allegations of ineffective assistance. Specifically, the court found counsel's testimony and timesheet to accurately reflect the work he performed on Jones's behalf. The court also noted that Jones had made inculpatory statements to his mother during a recorded jail call. Consequently, the court found that counsel was not deficient and that Jones failed to establish prejudice from counsel's actions. Jones did not appeal from the denial of this motion.
On May 31, 2018, Jones filed a CR 60.02 motion challenging the length of his sentence. The trial court denied the motion without a hearing. Again, Jones did not appeal from the denial of this motion.
On June 15, 2018, Jones filed a motion to submit additional evidence on his RCr 11.42 motion. He alleged that new evidence refuted his trial counsel's testimony about his number of jail visits. On June 26, 2018, the trial court denied the motion, concluding that Jones's pleadings and allegations were insufficient to warrant a second evidentiary hearing. This appeal followed.
RCr 11.42(3) requires that a motion to vacate, set aside, or correct a sentence "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." Consequently, successive RCr 11.42 motion are generally not allowed. Lycans v. Commonwealth, 511 S.W.2d 232, 233 (Ky. 1974).
In this case, Jones seeks to reopen his prior RCr 11.42 motion, rather than to bring a new motion. However, he is still attempting to re-litigate matters which were raised and actively litigated in the prior motion. Jones does not allege that he was unable to present the jail visitor logs at the prior evidentiary hearing. See Taylor v. Commonwealth, 354 S.W.3d 592, 594 (Ky. App. 2011). And even if the visitor logs had been admitted, Jones does not establish that the new evidence would have compelled a different result. See Crockett v. Commonwealth, 473 S.W.2d 112, 113 (Ky. 1971). Under the circumstances, we cannot find that the trial court abused its discretion by denying Jones's motion to reopen proof on his RCr 11.42 motion.
Accordingly, we affirm the order of the Taylor Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kevin Jones, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky