Opinion
2024-CA-0009-MR
10-25-2024
JIMMY DEAN CORNETTE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jimmy Dean Cornette, Jr., pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Matthew B. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MARTIN CIRCUIT COURTHONORABLE JOHN K. HOLBROOK, JUDGE ACTION NO. 10-CR-00116
BRIEF FOR APPELLANT: Jimmy Dean Cornette, Jr., pro se LaGrange, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Matthew B. Krygiel Assistant Attorney General Frankfort, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
OPINION
KAREM, JUDGE
A jury convicted Jimmy Dean Cornette, Jr., of murder, and he received a sentence of life in prison. Cornette appeals the Martin Circuit Court's denial of his most recent post-conviction motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Kentucky Supreme Court summarized the facts surrounding Cornette's case as follows:
On June 23, 2002, Patrick Blackburn was discovered unconscious in the backseat of his car. The vehicle was lodged against a tree, preventing it from going down the side of a small hill. Blackburn suffered severe, blunt force trauma to the head and died four days later. His death was declared a homicide.
For eight years, the crime went unsolved, partly because the car in which Blackburn was found contained no valuable physical evidence. However, in 2010, Appellant, Jimmy Cornette, Jr., was indicted for Blackburn's murder, along with David Jude and Jerry Stepp. The three men were tried separately.
The Commonwealth's evidence at trial established that Blackburn was a cocaine user who had purchased the drug on credit from [Cornette] shortly before his death. [Cornette] became increasingly angry as the debt remained unpaid for some time. The victim's brother witnessed [Cornette] threatening physical harm to Blackburn if he was not repaid.
Days later, Blackburn and his wife encountered [Cornette's] uncle, who informed Blackburn that David Jude had cocaine to sell. Blackburn contacted Jude to purchase the cocaine. [Cornette] learned of this and was infuriated that Blackburn was buying more cocaine instead of repaying his debt. Again, witnesses overheard [Cornette] threaten to kill and "whip" Blackburn.
Evidently unaware of these threats, Blackburn went to property belonging to [Cornette's] father to obtain cocaine from Jude. [Cornette], Jude and Stepp were present. There was testimony that, among others, [Cornette's] wife and sister were also present.
Blackburn was viciously attacked when he arrived. Stepp testified that [Cornette] and Jude together assaulted Blackburn as soon as he exited his vehicle. Jude, however, testified that Stepp was not present at the time
and that his friend, Paul Gibson, had participated in the attack. After the fight, [Cornette] ran over Blackburn's head with an ATV and then loaded the victim into the trunk of Blackburn's car. [Cornette] drove the victim's car while Stepp and Jude followed in a van. They moved Blackburn to the backseat of the car and pushed it over a hill.Cornette v. Commonwealth, No. 2011-SC-000479-MR, 2013 WL 658127, at *1 (Ky. Feb. 21, 2013).
This case is included pursuant to Kentucky Rule of Appellate Procedure ("RAP") 41.
In 2011, a jury convicted Cornette of murder, and the trial court sentenced Cornette to life in prison. Id. at *2. The Kentucky Supreme Court ultimately affirmed Cornette's conviction and sentence on direct appeal. Id. at *6. Approximately eight (8) years after his conviction and five (5) years after his direct appeal, Cornette filed a post-conviction motion under Kentucky Rule of Civil Procedure ("CR") 60.02 and Kentucky Rules of Criminal Procedure ("RCr") 10.02 and 10.06. See Cornette v. Commonwealth, No. 2018-CA-0595-MR, 2019 WL 5092381 (Ky. App. Oct. 11, 2019). A panel of this Court affirmed the trial court's conclusion that Cornette's motion was untimely. Id. at *3-4.
This case is included pursuant to RAP 41.
On November 7, 2022, approximately ten (10) years after the Kentucky Supreme Court affirmed his conviction on direct appeal, Cornette filed another CR 60.02 motion making new allegations of error. Again, the trial court denied Cornette's motion as untimely. Alternatively, the trial court considered Cornette's claim that his indictment failed to specify whether the murder was intentional or wanton. The trial court concluded that the indictment gave proper notice and that no double jeopardy or ineffective assistance of counsel concerns existed. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
1. Standard of Review
This Court reviews orders on CR 60.02 motions for abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation omitted). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). "The burden of proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (internal quotation marks and citations omitted). We must affirm the trial court's decision unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
2. Discussion
As the Kentucky Supreme Court discussed, "CR 60.02 is an extraordinary remedy and is available only when a substantial miscarriage of justice will result from the effect of the final judgment." Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). Moreover, "[t]he structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete." Gross, 648 S.W.2d at 856. As the Kentucky Supreme Court explained:
That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 . . . is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief.Id. (emphasis in original). The purpose of CR 60.02 is to correct errors upon showing "facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were discovered after the rendition of the judgment without fault of the party seeking relief." Harris v. Commonwealth, 296 S.W.2d 700, 701 (Ky. 1956). Indeed, "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." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
In this case, we agree with the trial court that Cornette's motion was improper and successive. A subsequent CR 60.02 motion brought upon any ground that a defendant could have been raised in a prior CR 60.02 proceeding is impermissibly successive. Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009). "CR 60.02 does not permit successive post-judgment motions[.]" Foley, 425 S.W.3d at 884. Nothing prevented Cornette from bringing his current allegations of error in his first CR 60.02 motion.
Indeed, Cornette could have and should have raised all of his current claims - other than his ineffective assistance of counsel claim - during his direct appeal. "CR 60.02 . . . is for relief that is not available by direct appeal and not available under RCr 11.42." Gross, 648 S.W.2d at 856. All the pertinent facts and information were accessible during Cornette's prior direct appeal.
Cornette further claims that his trial counsel was ineffective for failing to recognize and correct certain errors, such as Cornette's claims that the indictment was faulty, he was tried in violation of his double jeopardy rights, and his jury instructions were flawed. "[A]s a general rule . . . claims of ineffective assistance . . . must proceed by way of a post-trial motion under RCr 11.42[.]" Furnish v. Commonwealth, 95 S.W.3d 34, 52 (Ky. 2002) (citation omitted). Moreover, RCr 11.42(10) provides in pertinent part that "[a]ny motion under this rule shall be filed within three years after the judgment becomes final[.]" Because Cornette should have raised his ineffective assistance of counsel claims in an RCr 11.42 motion, the trial court did not err.
Cornette's CR 60.02(e)-(f) claims are also untimely. Motions made under CR 60.02(d)-(f) "shall be made within a reasonable time." Gross, 648 S.W.2d at 858 (determining that five years was not reasonable). Further, the "reasonable time" determination is within the trial court's discretion. Gross, 648 S.W.2d at 858. In this case, the trial court determined, and the Court of Appeals affirmed, that Cornette's previous CR 60.02 motion was untimely. Because the claims raised in the present motion are all issues that Cornette knew or should have known at trial, this motion is similarly untimely.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Martin Circuit Court.
ALL CONCUR.