Opinion
NO. 2019-CA-001111-MR
01-24-2020
ROBERT SMITH APPELLANTS v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert Smith, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 10-CR-002790 AND 11-CR-000294 OPINION
AFFIRMING
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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES. TAYLOR, JUDGE: Robert Smith, pro se, brings this appeal from a March 5, 2019, order denying Smith's Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate his judgment of conviction. We affirm.
In 2011, Smith was convicted of first-degree robbery and of being a first-degree persistent felony offender. The circuit court sentenced Smith to 32- years' imprisonment. Smith filed a direct appeal to the Kentucky Supreme Court. In Smith v. Commonwealth, 366 S.W.3d 399 (Ky. 2012), the Supreme Court affirmed Smith's conviction but vacated and remanded upon the issue of fines and court costs.
Smith then filed a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his sentence of imprisonment. Smith alleged that trial counsel was ineffective for a variety of reasons. The circuit court denied the RCr 11.42 motion, and by opinion rendered on December 7, 2018, in Appeal No. 2017-CA-000638-MR, the Court of Appeals affirmed the denial of the RCr 11.42 motion.
During the pendency of his appeal on the RCr 11.42 motion, Smith moved the circuit court pro se for relief pursuant to CR 60.02. In his motion, Smith contended the circuit court's judgment failed to designate whether his victim suffered death or serious physical injury, which he believed the trial court was required to do under Kentucky Revised Statute 439.3401. Without such a designation, Smith argued he should not be considered a violent offender for parole eligibility purposes. The circuit court denied the motion, correctly determining that a finding of death or serious physical injury was unnecessary to categorize an individual convicted of first-degree robbery as a violent offender. See Campbell v. Ballard, 559 S.W.3d 869, 871 (Ky. App. 2018). Smith filed an untimely notice of appeal of the circuit court's order which this Court subsequently dismissed by order entered February 7, 2019.
Shortly thereafter, Smith filed another CR 60.02 motion in the circuit court seeking to vacate his conviction. Smith maintained that the circuit court committed errors during trial that deprived him of a constitutionally mandated fair trial. By order entered March 5, 2019, the circuit court denied the CR 60.02 motion. This appeal follows.
We note that this was a successive and impermissibly filed Kentucky Rules of Civil Procedure 60.02 post-judgment motion. Foley v. Commonwealth, 425 S.W.3d 880 (Ky. 2014). --------
Smith contends that the circuit court erred by denying his CR 60.02 motion. In particular, Smith argues that the circuit court erroneously denied "the jury members the opportunity to see the lead detective's official written report," and that the circuit court also erroneously admitted evidence at trial from co-defendants as to their respective guilty pleas. Smith's Brief at 4-8.
A CR 60.02 motion is an extraordinary remedy only available to remedy a "substantial miscarriage of justice[.]" Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). It is well-recognized that CR 60.02 is not a substitute for a direct appeal or RCr 11.42 motion. CR 60.02 relief is only available for those issues that could not have been raised via direct appeal or RCr 11.42 motion. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); Gross v. Commonwealth, 648 S.W.2d 853, 856-57 (Ky. 1983).
We must emphasize that CR 60.02 is not a proper avenue to address alleged evidentiary errors at trial. The rule is not available to raise issues which could have been properly raised in other proceedings. McQueen, 948 S.W.2d at 416. In other words, these issues should have been raised in Smith's direct appeal to the Kentucky Supreme Court. Simply stated, Smith has failed to set forth allegations of error entitling him to relief under CR 60.02.
We view any remaining contentions of error as moot.
In sum, we conclude that the circuit court properly denied Smith's CR 60.02 motion.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert Smith, Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky