Opinion
NO. 2011-CA-001038-MR
02-08-2013
CHARLES RHODES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Charles Rhodes Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 05-CR-00311
OPINION
AFFIRMING
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: Charles Rhodes appeals the Hopkins Circuit Court's order denying his motion to vacate the judgment and sentence against him, which he brought under RCr 10.26, RCr 11.42, and CR 60.02(f). After a careful review of the record, we affirm because his RCr 11.42 motion was untimely, his CR 60.02 claims should have been brought in a timely RCr 11.42 motion, and his RCr 10.26 motion lacks merit.
Kentucky Rule of Criminal Procedure.
Kentucky Rule of Civil Procedure.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Rhodes was indicted on two counts of first-degree sodomy, one count of first-degree sexual abuse, and one count of first-degree rape. The indictment specified that the victim in all of those counts was alleged to be a minor child under the age of twelve.
Rhodes moved to enter a guilty plea in accord with the Commonwealth's Offer on a Plea of Guilty. According to the offer, the Commonwealth would recommend twenty-year sentences on each of the two counts of first-degree sodomy and on the count of first-degree rape, and it would recommend a sentence of five years of imprisonment on the count of first-degree sexual abuse, with all sentences to run concurrently to one another for a total sentence of twenty years.
Following a plea colloquy, the court accepted Rhodes's guilty plea. He was sentenced to a total of twenty years of imprisonment, in accord with the Commonwealth's Offer on a Plea of Guilty and Rhodes's motion to enter a guilty plea. The circuit court's judgment was entered on November 8, 2006.
Approximately four years later, on October 7, 2010, Rhodes filed his motion to vacate the judgment and sentence against him, pursuant to RCr 10.26, RCr 11.42, and CR 60.02(f). The circuit court denied the motion, finding that Rhodes's guilty plea was valid, that Rhodes's ineffective assistance of counsel claims lacked merit, and that Rhodes was not entitled to an evidentiary hearing or the appointment of counsel.
Rhodes now appeals, contending that: (a) his guilty plea was unknowingly and involuntarily entered because he was confused; (b) he received the ineffective assistance of trial counsel because counsel "badgered" him about his guilt and his confession to the police; and (c) he received the ineffective assistance of trial counsel because counsel failed to conduct an adequate pre-trial investigation.
II. ANALYSIS
In the circuit court, Rhodes brought his claims under RCr 11.42, CR 60.02(f), and RCr 10.26. We will address his claims under each rule, in turn.
A. RCr 11.42 ASPECTS OF RHODES'S CLAIMS
"It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised" on direct appeal, nor those that were actually raised on direct appeal. Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972). The Commonwealth argues that Rhodes's RCr 11.42 motion was untimely filed. Pursuant to RCr 11.42(10),
[a]ny 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.
In the present case, the circuit court entered its judgment on November 8, 2006, based upon Rhodes's unconditional guilty plea. Approximately four years later, on October 7, 2010, Rhodes filed his RCr 11.42 motion. Thus, his RCr 11.42 motion was untimely because it was filed more than three years after his judgment became final. Rhodes does not allege that the facts upon which his RCr 11.42 claims are predicated were unknown to him and could not have been ascertained by the exercise of due diligence, and he also does not allege that the fundamental constitutional rights he presently asserts were not established within the three-year period after his judgment became final. Therefore, the exceptions to the timeliness requirement set forth in RCr 11.42(10) do not apply to Rhodes's case.
When an RCr 11.42 motion is filed after the three-year period for filing such motions has expired, the trial court does not have jurisdiction to adjudicate the motion, and "this Court is similarly without jurisdiction to hear any appeal therefrom." Bush v. Commonwealth, 236 S.W.3d 621, 623 (Ky. App. 2007). Consequently, Rhodes's appeal from the denial of the RCr 11.42 part of his motion is dismissed, and we will not consider his claims to the extent they were brought under RCr 11.42.
B. CR 60.02(f) ASPECTS OF RHODES'S CLAIMS
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000).
In his motion brought in the circuit court, Rhodes alleged that he was entitled to relief under CR 60.02(f), which states as follows:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: . . . (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time. . . .
Kentucky's highest court has instructed that "because of the desirability of according finality to judgments, [CR 60.02(f)] must be invoked only with extreme caution, and only under most unusual circumstances." Cawood v. Cawood, 329 S.W.2d 569, 571 (Ky. 1959). Additionally, "Civil Rule 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 RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id. In the present case, because Rhodes could have raised his claims in a timely-filed RCr 11.42 motion, his CR 60.02 motion fails.
Moreover, even if the motion did not fail for that reason, it would fail because it was not filed within a reasonable time, as the rule requires. See CR 60.02. Rhodes's CR 60.02 motion was filed approximately four years after the judgment became final, and that is not a reasonable time within which to file such a motion because Rhodes was aware of the basis for each of his claims by the time his judgment was entered four years before he filed the present motion.
C. RCr 10.26 ASPECTS OF RHODES'S CLAIMS
Rhodes also brought his claims in the circuit court under RCr 10.26, which provides:
[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Contrary to Rhodes's contention, a motion may not be filed pursuant to RCr 10.26 because RCr 10.26 is a standard of review for certain egregious trial errors, i.e., it is not a procedural mechanism by which a party may obtain relief simply by filing a motion pursuant to that rule. Thus, Rhodes's RCr 10.26 motion lacks merit.
Accordingly, the order of the Hopkins Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Charles Rhodes
Pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky