Opinion
NO. 2012-CA-001127-MR
05-10-2013
KEITH R. GUY, SR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Keith R. Guy, Sr., pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky William Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 00-CR-00070
OPINION
AFFIRMING
BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES. COMBS, JUDGE: Keith R. Guy, pro se, appeals from the Fayette Circuit Court order summarily denying his motion to vacate, set aside, or correct his sentence pursuant to Kentucky Rule[s] of Civil Procedure (CR) 60.02 (f). After our review, we affirm.
In 2002, Guy was convicted by a jury for the kidnapping and first-degree sodomy of a child less than twelve (12) years of age. In 2004, Guy's conviction was affirmed by the Supreme Court of Kentucky in a matter-of-right appeal. In 2007, we affirmed the trial court's denial of Guy's motion for post-conviction relief filed pursuant to the provisions of Kentucky Rule[s] of Criminal Procedure (RCr) 11.42.
In January 2012, after initiating post-conviction proceedings in federal court, Guy filed a motion in Fayette Circuit Court to vacate the judgment of conviction pursuant to the provisions of CR 60.02(f). In his motion, Guy alleged that the Commonwealth failed to disclose exculpatory evidence prior to trial, conducted an illegal search and seizure, altered evidence to suit its needs, and otherwise engaged in a pattern of misconduct. In an opinion and order entered on June 8, 2012, the circuit court denied the motion as untimely. The court also commented that even if it were to ignore the procedural bar and consider Guy's motion on its merits, it would, nevertheless, be denied substantively. This appeal followed.
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83 (Ky. App. 2000). The rule provides that the court "may, upon such terms as are just, relieve a party from its final judgment. . . ." CR 60.02. (Emphasis added). It also provides that "the motion shall be made within a reasonable time. . . ." Id. Finally, CR 60.02(f) provides that relief from the judgment may be had only upon grounds "of an extraordinary nature." Id.
Guy contends on appeal that the circuit court erred by failing to appoint counsel for him and by failing to conduct an evidentiary hearing with respect to his motion for post-conviction relief. We disagree.
In Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), the Supreme Court of Kentucky observed that, unlike the provisions of RCr 11.42, the provisions of CR 60.02 do not allow for the appointment of counsel. The court also rejected the contention that the language of Kentucky Revised Statute[s] (KRS) 31.110 (pertaining to the appointment of counsel to needy persons in post-conviction proceedings) included proceedings involving the provisions of CR 60.02.
Furthermore, where the trial court has determined that the motion was not filed within a reasonable time, there is no need for an evidentiary hearing to consider the merits of the movant's claims. The trial court has sole discretion to determine what constitutes a "reasonable time" in which to move to vacate a judgment under the provisions of CR 60.02. Gross, supra. Under the facts of this case, it was not an abuse of the trial court's discretion to deny Guy's motion without addressing its merits. The trial court was entitled to make this determination without conducting a hearing to decide whether the "reasonable time" restriction should apply. Id.
Guy did not qualify for the appointment of counsel; his motion for relief was untimely; he failed to present any facts or legal grounds sufficient to invalidate his sentence; and a hearing to assist the trial court in reaching these conclusions was unnecessary. Since there was no flagrant miscarriage of justice in this case, the trial court did not abuse its discretion by summarily denying Guy's CR 60.02 motion.
We affirm the order of the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Keith R. Guy, Sr., pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky