Opinion
NO. 2015-CA-001895-MR
11-18-2016
JOSEPH S. GONCALVES, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joseph S. Goncalves, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 08-CR-00028 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON AND NICKELL, JUDGES. COMBS, JUDGE: Appellant, Joseph Goncalves, filed a motion pursuant to CR 60.02 for relief from his 2010 conviction for robbery in the first degree and persistent felony offender in the first degree. He appeals its denial by the Nelson Circuit Court. After our review, we affirm.
Kentucky Rules of Civil Procedure. --------
On February 19, 2010, Goncalves was convicted and sentenced to thirty-five years' imprisonment. He appealed to the Supreme Court of Kentucky, which affirmed his conviction on March 14, 2013, excepting an issue concerning costs and fees. Goncalves v. Commonwealth, 404 S.W.3d 180 (Ky. 2013).
In January 2014, Goncalves filed a motion pursuant to CR 60.02 seeking to vacate his sentence of imprisonment. Goncalves argued that under CR 60.02 and CR 60.03, he is entitled to relief due to "fraud and/or extraordinary nature which cannot be raised in other proceedings." Specifically, Goncalves contended that the Commonwealth's Attorney intentionally destroyed the original video surveillance footage of the robbery. He argued that the Commonwealth's actions were a deliberate act of bad faith preventing him from presenting exculpatory evidence at trial.
By order entered on August 21, 2015, the trial court denied the CR 60.02 motion, finding that Goncalves had previously raised the same issue in his direct appeal. Goncalves contends that the Nelson Circuit Court erred by denying his motion. However, we do not agree.
The standard of review concerning a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). "The test for abuse of discretion is whether the judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
On direct appeal, Goncalves alleged that the surveillance footage was altered by agents of the Commonwealth. He also contended that his due process rights were violated when the Commonwealth failed to preserve the original copy of the surveillance footage. Our Supreme Court held that a missing evidence instruction given by the trial court cured any possible prejudice caused by the Commonwealth's failure to preserve the computer hard drive containing the original surveillance footage. Goncalves, 404 S.W.3d at 195-97. Goncalves raised the identical issue in his subsequent CR 60.02 motion.
CR 60.02 is an extraordinary remedy which is available only to correct a substantial miscarriage of justice. Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983); Wilson v. Commonwealth, 403 S.W.2d 710 (Ky. 1966). CR 60.02 is not a substitute for an appeal; only those issues that were not -- and could not have been -- addressed in other proceedings are proper for review in a CR 60.02 motion. McQueen v. Commonwealth, 948 S.W.2d 415 (Ky. 1997). The rule is not intended to provide an avenue for defendants to relitigate issues presented on direct appeal. Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky. 2008). In the case before us, the trial court correctly denied the CR 60.02 motion in which Goncalves attempted to raise once again an issue that had already been decided by the Supreme Court on direct appeal. Consequently, there was no abuse of discretion.
For the foregoing reasons, the order of the Nelson County Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph S. Goncalves, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd Ferguson
Assistant Attorney General
Frankfort, Kentucky