Opinion
NO. 2016-CA-000133-MR
03-10-2017
FREELAND RILEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Freeland Riley, Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 06-CR-00539-001 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND JONES, JUDGES. CLAYTON, JUDGE: Freeland Riley appeals the denial of his Kentucky Rules of Civil Procedure ("CR") 60.02 motion. Because his motion was untimely filed, we affirm.
BACKGROUND
In 2007, a jury convicted Riley of trafficking in marijuana, use or possession of drug paraphernalia, first-degree possession of a controlled substance (cocaine), first-degree trafficking in methamphetamine (second offense), and of being a first-degree persistent felony offender. He was sentenced to life imprisonment plus twenty years. On direct appeal, the Kentucky Supreme Court affirmed the convictions but reversed and remanded for Riley to be sentenced to only life imprisonment. Riley v. Commonwealth, 2009 WL 1451931 (May 21, 2009). The trial court entered an amended judgment on May 28, 2009.
Riley then filed a post-conviction motion pursuant to Kentucky Rules of Criminal Procedure ("RCr") 11.42 and CR 60.02. His motion was denied, and that denial was affirmed on appeal. Riley v. Commonwealth, 2012 WL 880617 (Ky. App. March 16, 2012).
On December 9, 2015, Riley next filed a post-conviction motion pursuant to CR 60.02(e) and (f). Riley claimed he should have received a facilitation instruction at his trial for the trafficking charge. He also claimed that House Bill 463 prohibited him from receiving a sentence greater than 20 years. The Commonwealth filed a response asserting that the motion lacks merit and was not filed within a reasonable time.
On January 13, 2016, the trial court entered an order denying Riley relief. The trial court first held that Riley's claims could have and should have been raised on direct appeal to the Kentucky Supreme Court or in his RCr 11.42 post-conviction motion. The trial court next held that Riley's claims were untimely as they were not brought within a reasonable amount of time. Riley timely appealed.
ANALYSIS
We review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)). A trial court abuses its discretion when it renders a decision that is "'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (quoting Goodyear Tire and Rubber Co v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
Having reviewed the record and the applicable law, we find no such error by the trial court. Riley's original judgment was entered in 2007, and his amended judgment was entered on May 28, 2009. Riley's latest post-conviction motion was mailed on December 4, 2015, and filed on December 9, 2015. Accordingly, his CR 60.02 claims were raised between six-and-a-half and eight years after the judgments.
CR 60.02(e) and (f) claims have to be "made within a reasonable time[.]" "What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Here, the trial court held that because the issues could have been raised previously and were based on material readily available to Riley, his more than a half-decade delay was unreasonable. Case law affirms that under similar facts it is not an abuse of discretion to find such delays unreasonable. Baze v. Commonwealth, 276 S.W.3d 761, 768 (Ky. 2008) (14 years); Gross, supra (five years); Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009) (seven years); Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (four years); Ray v. Commonwealth, 633 S.W.2d 71, 73 (Ky. App. 1982) (12 years). We likewise discern no abuse of discretion here.
CONCLUSION
The trial court did not abuse its discretion by denying Riley's CR 60.02 motion. Accordingly, the order is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Freeland Riley, Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Frankfort, Kentucky