Opinion
NO. 2012-CA-000311-MR
04-19-2013
KENNY THOMPSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kenny Thompson, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 99-CR-00030
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: Kenny Thompson appeals from an Order of the Hardin Circuit Court denying his motion for CR 60.02 relief. Thompson argues the circuit court erred in concluding that he was not entitled to the resentencing of a criminal judgment. We agree with the circuit court's determination that this argument should have been brought, if at all, by way of direct appeal, or via his prior RCr 11.42 and CR 60.02 motions. Additionally, we find persuasive the court's reasoning that Thompson's motion, which was brought some nine years after the first resentencing, was not brought within a reasonable time as required by CR 60.02. Accordingly, we affirm the Order on appeal.
Thompson was convicted on six counts of first-degree rape and of being a second-degree persistent felony offender. The trial court imposed a sentence of 150 years in prison. Thompson appealed the conviction and sentence to the Kentucky Supreme Court. By way of an unpublished opinion, the Kentucky Supreme Court affirmed the conviction but reversed the sentence upon holding that under KRS 532.110(1)(c), Thompson could be sentenced to no more than 70 years in prison. On remand to the Hardin Circuit Court, Thompson was resentenced to 70 years in prison.
Thompson moved to vacate, correct or set aside the 70-year sentence pursuant to RCR 11.42, after which the circuit court held an evidentiary hearing and denied the motion. Thompson's appeal to this Court was dismissed upon Thompson's failure to file a brief. Thompson later filed a CR 60.02 motion asserting eight claims of error. The motion was denied, and the decision was affirmed on appeal to this Court in 2009.
Thereafter, Thompson filed another pro se CR 60.02 motion, this time arguing that he should have been resentenced by a jury and not the trial court. After reviewing the resentencing hearing, the circuit court concluded that Thompson may not raise an issue by way of CR 60.02 which was or could have been the subject of a direct appeal or of his prior motions. The court also noted that at the resentencing hearing, neither Thompson nor his counsel requested any different proceeding at the time of sentencing, that no one objected and that the presiding judge stated that all parties were in agreement with the final result. Finally, the court noted that Thompson prosecuted this latest CR 60.02 motion some nine years after the resentencing, which the court found was not within a reasonable time as contemplated by CR 60.02. The motion was denied, and this appeal followed.
Thompson now argues that the circuit court erred in denying his latest CR 60.02 motion. He argues that on remand from the Kentucky Supreme Court in 2002, he was entitled to have a jury empanelled to set his sentence rather than having the court set the sentence. As a basis for this argument, he points to KRS 532.110(1)(c) and Bolen v. Commonwealth, 2003 WL 21512515 (Ky. App. 2003), for the proposition that a jury must determine the sentence in felony cases. Since the court rather than a jury set his sentence at 70 years on remand, and as Thompson made no affirmative steps to waive jury sentencing, he argues that the sentence must be reversed and the matter remanded for resentencing by a jury.
We find no error in the circuit court's determination that this issue should have been raised, if at all, by way of direct appeal, then RCr 11.42 and finally CR 60.02. The Kentucky Supreme Court has held that because of the desirability of according finality to judgments, CR 60.02 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). CR 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 matter at bar, Thompson was availed of the opportunity to prosecute this issue by way of a direct appeal, but he did not do so. Thereafter, he could have raised the issue on a motion for RCr 11.42 relief, but again did not do so. Additionally, he did not raise the issue in the first of his two CR 60.02 motions. McQueen is controlling, and holds that CR 60.02 is not available to raise issues which could have been raised in other proceedings. Applying this principle to the matter at bar, we must conclude that the Hardin Circuit Court did not err in reaching the conclusion that Thompson is not availed of CR 60.02 as a means for seeking redress of his sentencing issue.
Arguendo, even if this claim of error were properly brought via CR 60.02, this rule requires a motion thereunder to be filed within a reasonable time. We find no error in the Hardin Circuit Court's determination that the lapse of more than nine years between the resentencing and the filing of the latest CR 60.02 motion does not constitute a reasonable time for the filing of the motion. Though the determination of reasonableness is somewhat fact-specific, we have previously held that a seven-year delay between the sentence and the motion for relief from judgment of conviction and sentence was not reasonable. Graves v. Commonwealth, 283 S.W.3d 252 (Ky. App. 2009). Thompson's nine-year delay exceeds that of Graves.
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). Having found no such abuse, we affirm the Order of the Hardin Circuit Court denying Thompson's motion for CR 60.02 relief.
ALL CONCUR. BRIEF FOR APPELLANT: Kenny Thompson, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General Of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky