Opinion
NO. 2013-CA-000962-MR
03-14-2014
DOMENICO VILARDO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEES
BRIEFS FOR APPELLANT: Domenico Vilardo, pro se Eddyville, Kentucky BRIEF FOR APPELLEES: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 08-CR-00066
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Domenico Vilardo brings this pro se appeal from a May 7, 2013, order of the Kenton Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate his sentence of imprisonment. We affirm.
In Criminal Action No. 08-CR-00066, appellant was found guilty by a jury in the Kenton Circuit Court upon two counts of third-degree assault, menacing, and with being a first-degree felony offender. By judgment entered September 15, 2008, the trial court sentenced appellant to a total of ten-years' imprisonment.
In January 2013, appellant filed the underlying CR 60.02 motion seeking to vacate his sentence of imprisonment. By a May 7, 2013, order, the circuit court denied appellant's CR 60.02 motion. This appeal follows.
Appellant contends that the circuit court committed error by denying his CR 60.02 motion. In particular, appellant asserts that the trial court erred by using three prior felony convictions to support his conviction of Persistent Felony Offender (PFO) I when the same felony convictions were used "to establish PFO status" in another criminal proceeding.
It is well-established that CR 60.02 is an extraordinary remedy, and movant must make a substantial showing to be entitled to relief. Ringo v. Com., 455 S.W.2d 49 (Ky. 1970). Additionally, CR 60.02 "is for relief that is not available by direct appeal and not available under RCr [Kentucky Rules of Criminal Procedure] 11.42." Gross v. Com., 648 S.W.2d 853, 856 (Ky. 1983). CR 60.02 is not a substitute for a direct appeal; all issues that should have been raised in a direct appeal will not be considered under CR 60.02 as grounds for relief. Id.
In this case, the record is clear that appellant either knew or should have known that the three prior felony convictions were being used to establish his PFO I status at least by the date of final judgment in September of 2008. Therefore, appellant should have raised the issue in his direct appeal of his conviction by RCr 11.42 motion. Appellant may not raise this issue through a CR 60.02 motion. See Gross, 648 S.W.2d 853. Simply stated, appellant has failed to prove entitlement to extraordinary relief provided for under CR 60.02. Accordingly, we hold that the circuit court properly denied appellant's CR 60.02 motion.
For the foregoing reasons, the order of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Domenico Vilardo, pro se
Eddyville, Kentucky
BRIEF FOR APPELLEES: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky