Opinion
NO. 2011-CA-001179-MR
01-25-2013
JOHN DANIELS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John L. Daniel, Pro Se Wheelwright, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 82-CR-001409, 82-CR-001602, 82-CR-001690
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. DIXON, JUDGE: John Daniels appeals from the Jefferson Circuit Court's order denying his motion for post-conviction relief pursuant to CR 60.02(f). Finding no error, we affirm.
On November 24, 1982, Daniels pled guilty to several burglary and theft charges to resolve three criminal indictments that were pending against him. Daniels was sentenced to an aggregate term of twenty-five years' imprisonment. In his appellate brief, Daniels admits that he has filed "numerous" motions pursuant to RCr 11.42 and CR 60.02, and the record on appeal supports this assertion. The lengthy appellate record indicates that this Court affirmed the denial of his first RCr 11.42 motion in 1988. In 1990, Daniels sought CR 60.02 relief, which the Jefferson Circuit Court denied.
Daniels v. Commonwealth, 86-CA-02543-MR (Nov. 11, 1988).
In March 2010, twenty-seven years after his conviction, Daniels filed a motion to vacate the judgment against him pursuant to CR 60.02(f). Daniels alleged the circuit court imposed an unauthorized sentence that exceeded the maximum statutory penalty. The court summarily denied Daniels's motion, and this appeal followed.
We review the lower court's denial of a CR 60.02 motion under the abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000).
The Commonwealth contends Daniels's motion was untimely and that his challenge to the validity of his sentence was already raised in a previous post-conviction motion.
Where, as here, a movant seeks relief pursuant to CR 60.02(f), the rule requires that the motion must be filed "within a reasonable time." Furthermore, in Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983), the Kentucky Supreme Court outlined the availability of post-conviction relief as follows:
[A] defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this
remedy is available to him. Final disposition of that motion, or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding. The language of RCr 11.42 forecloses the defendant from raising any questions under CR 60.02 which are 'issues that could reasonably have been presented' by RCr 11.42 proceedings.
Here, appellate review is foreclosed for several reasons. This was a successive post-conviction motion, and Daniels had the opportunity to raise these arguments in his earlier motions. "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). Moreover, this motion was not brought within a "reasonable time" as required by the rule. Twenty-seven years had elapsed since his conviction when Daniels filed the underlying motion. Furthermore, although the record is unclear on this issue, it is at least possible that Daniels has served the sentence upon which the underlying motion was based. "Logic would dictate that a sentence cannot be amended after it has been served." Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App. 2004). After careful review, we conclude that the trial court did not abuse its discretion by summarily denying Daniels's CR 60.02 motion.
In Daniels v. Commonwealth, 2008 WL 2312645, 2007-CA-000470-MR (June 6, 2008), this Court affirmed an order of the Oldham Circuit Court dismissing Daniels's petition for a declaration of rights. Daniels alleged that the Department of Corrections had erroneously calculated his sentence. This Court noted as follows: "The aggregate number of Daniels' multiple sentences total forty-seven-years. Although Daniels claims that number should be less because he served two sentences in full, the DOC took those years into account when it determined that he already served twenty-two of his forty-seven years. After careful review of the DOC sentencing records, as well as the governing statutes, we find no error in the DOC calculation of Daniels' sentences and its credit for his time served." (Slip op. at 1-2).
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For the reasons stated herein, we affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: John L. Daniel, Pro Se
Wheelwright, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky