Opinion
NO. 2012-CA-000108-MR
02-15-2013
BARRY BUFORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Barry Buford, pro se St. Mary, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 07-CR-00364
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Barry Buford appeals from an order overruling his motion for relief from judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We find no error and affirm.
On November 1, 2007, Buford pled guilty, pursuant to a plea bargain, to one count of first-degree trafficking in a controlled substance, second offense. Buford was sentenced to a term of fifteen years' imprisonment. The final judgment was signed by Hon. Steve Alan Wilson. No direct appeal was taken. On March 21, 2008, Buford filed a motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 alleging three claims of ineffective assistance of trial counsel. The trial court overruled this motion and a previous panel of this Court affirmed.
On July 22, 2011, Buford filed the underlying CR 60.02 motion, arguing that the trial judge who presided over his indictment, judgment, and sentencing should have recused himself pursuant to Kentucky Revised Statutes (KRS) 26A.015(2)(e). Buford argued that the trial judge was a former prosecutor who had prosecuted him for previous and unrelated charges in the 1990s. The motion was overruled and this appeal followed.
CR 60.02 states:
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: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.KRS 26A.015(2)(e) states: "Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding . . . (e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned."
First, we find that this issue is not available for our review. A CR 60.02 motion to vacate or set aside a prior final judgment of conviction is not intended merely as an additional opportunity to challenge a conviction and judgment; it is for relief that is not available by direct appeal or in post-conviction relief proceedings. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Buford could have raised this issue by direct appeal or in his previous RCr 11.42 motion, but did not. In addition, "an unconditional guilty plea waives all defenses except that the indictment does not charge a public offense." Jackson v. Commonwealth, 363 S.W.3d 11, 15 (Ky. 2012).
Assuming, arguendo, that this issue is preserved for review, we find Judge Wilson did not need to recuse himself. Even if Judge Wilson was the Commonwealth Attorney during the 1990s and prosecuted Buford, he had no previous involvement with the 2007 trafficking case. Judge Wilson was under no obligation to recuse himself. See Commonwealth v. Carter, 701 S.W.2d 409 (Ky. 1985); Matthews v. Commonwealth, 371 S.W.3d 743 (Ky. App. 2011).
These two cited cases involve recusal pursuant to KRS 26A.015(2)(b), but the reasoning is just as sound when applied to KRS 26A.015(2)(e).
For the foregoing reasons we affirm the judgment of the trial court.
ALL CONCUR BRIEF FOR APPELLANT: Barry Buford, pro se
St. Mary, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky