Opinion
NO. 2015-CA-001180-MR
05-05-2017
CHARLES DENTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Charles Denton, pro se Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE HUNTER DAUGHERTY, JUDGE
ACTION NO. 01-CR-00016 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT, AND THOMPSON, JUDGES. COMBS, JUDGE: Charles Denton, pro se, appeals from an order of the Jessamine Circuit Court which denied his CR 60.02 motion to vacate his criminal conviction for murder and robbery in the first degree. For reasons set forth below, we affirm.
Kentucky Rules of Civil Procedure.
On December 1, 2000, Denton, who was seventeen years of age, armed with a handgun, walked up to the drive-through window at a Nicholasville Burger King and demanded money. When the victim refused, Denton shot him in the head, killing him. On November 2, 2001, Denton entered a plea of guilty to one count of murder and one count of robbery in the first degree. On December 7, 2001, Denton was sentenced to consecutive sentences of life without the benefit of parole for twenty-five years for the murder and twenty years for the robbery.
On May 1, 2002, Denton filed a motion pursuant to RCr 11.42 to vacate his sentence. In his motion, Denton claimed that his plea had not been made knowingly and voluntarily due to ineffective assistance of trial counsel. The circuit court denied that motion and we affirmed on appeal, finding that the record showed that Denton's guilty plea had been entered knowingly and voluntarily. Denton v. Commonwealth, 2002-CA-001042-MR, 2004 WL 178386 (Ky. App. Jan. 30, 2004).
Kentucky Rules of Criminal Procedure.
On February 20, 2006, Denton filed a "Motion to Grant a New Sentencing Hearing Pursuant to CR 60.02(e) and (f) and RCr 11.42." In his motion, Denton argued that the trial court should reconsider his sentence in light of the United States Supreme Court's holding in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed. 2d 1 (2005). In Roper, the Supreme Court held that executing individuals who were under the age of eighteen at the time of the commission of their crime is prohibited by the Eighth and Fourteenth Amendments of the United States Constitution. Id. 578-79, 1200. The circuit court denied Denton's motion, and he appealed to this Court. On August 3, 2007, we rendered an Opinion and Order affirming Denton's conviction and denying his motion to strike the Commonwealth's brief. Denton v. Commonwealth, 2006-CA-00587-MR, 2007 WL 2332062 (Ky. App. Aug. 3, 2007).
On August 12, 2014, Denton, pro se, moved the circuit court to modify his sentence pursuant to CR 60.02. In that motion, Denton argued that the circuit court erred by failing to hold a pre-trial competency hearing after a competency evaluation had been ordered. The circuit court summarily denied Denton's motion, concluding that Denton had not presented the court with any issue that had not been previously addressed. This appeal followed.
On appeal, Denton argues that the circuit court erroneously: 1) allowed the Commonwealth to seek life without the possibility of parole and the death penalty; 2) failed to hold a competency hearing; 3) allowed Denton to enter a guilty plea before having him evaluated for competency; 4) ordered the Division of Probation and Parole to prepare Denton's presentence investigation report (PSI) rather than the Department of Juvenile Justice; 5) sentenced Denton without determining his competence; and 6) sentenced Denton under KRS 439.3401 contrary to the Kentucky Unified Juvenile Code.
Kentucky Revised Statutes. --------
"The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). We will affirm the lower 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). Where the defendant's motion is merely one of successive motions only stating grounds that were raised or could have been raised, denial of the motion will not be reviewed on appeal. Hampton v. Commonwealth, 454 S.W.2d 672 (Ky. 1970).
We agree that Denton is precluded from relief under CR 60.02 because all of his arguments could have reasonably been presented by direct appeal in his RCr 11.42 proceedings or in his other CR 60.02 motion. CR 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) (quoting RCr. 11.42(3)). The Rule allows a judgment to be corrected or vacated based "upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were not discovered until after rendition of judgment without fault of the parties seeking relief." Barnett v. Commonwealth, 979 S.W.2d 98, 101 (Ky. 1998) (citing Davis v. Home Indemnity Co., 659 S.W.2d 185, 188 (Ky. 1983)).
Denton did not base his motion on any newly discovered grounds or evidence. The competency evaluation order upon which Denton based his motion has been in Denton's file since it was first entered. Therefore, any issues based on that evaluation could have reasonably been raised on direct appeal or when he filed his first motion pursuant to RCr 11.42 in May 2002. Denton's other issues, which he raises for the first time on appeal, also could have reasonably been presented on direct appeal or in his motion for RCr 11.42 relief. Accordingly, CR 60.02 is not the appropriate avenue of relief for the issues Denton has raised. McQueen, supra.
Even assuming, arguendo, that Denton's claims might have been properly brought pursuant to CR 60.02, the rule requires that a motion be filed within a reasonable time. What constitutes a reasonable time is left to the sound discretion of the trial court. Gross, 648 S.W.2d at 857. Although the trial court did not make a finding on this issue, we have previously held that a seven-year delay between the sentence and the motion for relief was not reasonable. Graves v. Commonwealth, 283 S.W.3d 252 (Ky. App. 2009). The circuit court in this instance would have acted well within its discretion if it denied Denton's motion based on the thirteen-year delay.
We conclude the circuit court acted properly when it denied Denton's motion. CR 60.02 was not the proper avenue of relief for Denton's claims, and his motion was untimely.
We affirm the judgment of the Jessamine Circuit court denying the CR 60.02 relief.
ALL CONCUR. BRIEF FOR APPELLANT: Charles Denton, pro se
Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky