Opinion
NO. 2019-CA-000956-MR
02-21-2020
JAMES HIGHTOWER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: James Hightower, pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, SPECIAL JUDGE
ACTION NO. 03-CR-00342 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES. LAMBERT, JUDGE: James Hightower appeals from the McCracken Circuit Court's order denying his combined motion for relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 and for a new trial pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.06. We affirm.
In 2003, Hightower entered an unconditional guilty plea on charges of first-degree attempted rape, kidnapping, and being a second-degree persistent felony offender (PFO). The trial court sentenced Hightower to ten years' imprisonment for attempted rape and twenty years' imprisonment for kidnapping. The trial court ordered these terms to run consecutively, for a total sentence of thirty years, then enhanced the sentence to a term of life imprisonment by virtue of the PFO.
Following his conviction, Hightower filed two simultaneous motions, asking the trial court to produce his records and to grant relief under RCr 11.42 for ineffective assistance of counsel. The trial court denied both motions. In a consolidated opinion and order, we dismissed Hightower's appeal on production of his records as untimely filed, and we affirmed the trial court's denial of relief under RCr 11.42. Hightower v. Commonwealth, Nos. 2004-CA-002539-MR and 2004-CA-002543-MR, 2005 WL 2323472 (Ky. App. Sept. 23, 2005).
Over the next several years, Hightower engaged in a lengthy series of collateral attacks on his conviction. On January 23, 2007, Hightower filed a motion under CR 60.02, challenging the constitutionality of his indictment. The trial court summarily denied the motion, and we affirmed the trial court's denial of relief on appeal. Hightower v. Commonwealth, No. 2007-CA-000523-MR, 2008 WL 540887 (Ky. App. Feb. 29, 2008). Next, in 2011, Hightower filed a second motion under CR 60.02 and RCr 10.26, this time arguing he was erroneously sentenced. The trial court denied the motion, stating Hightower's motion was untimely and he had failed to meet his burden of proof under the rules. Again, we affirmed the trial court's denial of relief. Hightower v. Commonwealth, No. 2011-CA-002208-MR, 2013 WL 844301 (Ky. App. Mar. 8, 2013). Undeterred, in 2013, Hightower filed a motion under CR 61.02, in which he requested a new trial on the basis of substantial error. The trial court summarily denied relief, and we dismissed Hightower's appeal on procedural grounds. Hightower v. Commonwealth, No. 2014-CA-000153-MR, dismissed on the court's own motion (Ky. App. Sept. 4, 2015).
Coming to the present action, more than fifteen years after his conviction, Hightower once again moved the trial court for a new trial, pursuant to CR 60.02(e)-(f) and RCr 10.06. Hightower's motion centered around claims of a defective plea colloquy and attacks on the sufficiency of the evidence. He later supplemented his motion, adding a claim that his guilty plea was involuntary. On May 17, 2019, the trial court entered an order denying Hightower's motion. In its order, the trial court initially found the motion "was not made within a reasonable time and is barred for that reason." The trial court then proceeded to an analysis of the plea colloquy and found no grounds for relief. Finally, the trial court noted how Hightower's guilty plea "waives all defenses except that the Indictment fails to charge a public offense[,]" citing Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994). This appeal followed.
This appeal stems from the trial court's denial of a combined motion pursuant to CR 60.02 and RCr 10.06. "We review the denial of a CR 60.02 motion for an abuse of discretion." Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). "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). "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) (citations and internal quotation marks omitted). "[W]e will affirm the lower court's decision unless there is a showing of some 'flagrant miscarriage of justice.'" Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
In a motion for a new trial brought under RCr 10.06, "[c]laims premised on newly discovered evidence may be brought within one year of the judgment, or at a later time if the trial court finds that 'good cause so permits.'" Commonwealth v. Carneal, 274 S.W.3d 420, 431 (Ky. 2008) (quoting RCr 10.06(1)). "The decision to grant a new trial lies within the sound discretion of the trial court, and there must be a showing that this discretion was abused to warrant reversal." Id. (citing Foley v. Commonwealth, 55 S.W.3d 809 (Ky. 2000)).
We need not consider the merits of Hightower's arguments because the trial court correctly concluded Hightower's CR 60.02 motion was untimely. CR 60.02 provides in pertinent part that motions under the Rule "shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken." Hightower specified CR 60.02(e) and (f) as grounds for relief, meaning he was required to bring his motion within "a reasonable time." "What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross, 648 S.W.2d at 858. The Supreme Court of Kentucky has affirmed a trial court's denial of a CR 60.02 motion as untimely when filed five years post-judgment. Id. Similarly, this Court has reasoned that denial of a CR 60.02 motion filed four years post-judgment would be within a trial court's discretion. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007). Hightower filed his CR 60.02 motion over fifteen years after the entry of his guilty plea and subsequent conviction. The trial court did not abuse its discretion in finding this motion untimely.
Additionally, as argued in its brief, the Commonwealth urges us to affirm because Hightower has submitted an impermissibly successive post- conviction motion. Although the trial court did not consider the successiveness issue, "it is well-settled that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009) (citation omitted). The Commonwealth correctly asserts Hightower has filed multiple post-conviction motions, including two previous motions under CR 60.02.
"CR 60.02 does not permit successive post-judgment motions, and the rule may be utilized only in extraordinary situations when relief is not available on direct appeal or under RCr 11.42." Foley, 425 S.W.3d at 884 (citing McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997)). "Our rules of civil procedure do not permit successive motions or the relitigation of issues which could have been raised in prior proceedings." Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009). Hightower's current motion presents no issues which could not have been raised in his previous efforts. "The courts have much more to do than occupy themselves with successive 'reruns' of [postconviction] motions stating grounds that have or should have been presented earlier." Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970) (citing Kennedy v. Commonwealth, 451 S.W.2d 158, 159 (Ky. 1970)).
Finally, the trial court's order denying relief implicitly denied Hightower's motion under RCr 10.06. Based on the aforementioned factors, as well as the trial court's order detailing the lack of merit in Hightower's arguments, we conclude the trial court did not abuse its sound discretion under the rule in denying a motion for a new trial.
For the foregoing reasons, we affirm the McCracken Circuit Court's order entered on May 17, 2019, denying Hightower's motions for relief.
ALL CONCUR. BRIEFS FOR APPELLANT: James Hightower, pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky