Opinion
NO. 2011-CA-002332-MR
02-01-2013
SHAFI ULLAH KHAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shafi Ullah Khan, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 96-CR-00047
OPINION
AFFIRMING
BEFORE: MAZE, MOORE AND TAYLOR, JUDGES. MAZE, JUDGE: In October of 1995, a Daviess County grand jury returned an indictment charging Shafi Ullah Khan with murder and two counts of first-degree sodomy in the death of four-year-old Phillip Strain. In April of 1996, the grand jury returned an additional indictment of first-degree rape, which the trial court ordered consolidated with the prior indictment. The Commonwealth gave notice of its intent to present evidence of aggravating circumstances. Eventually, the trial court dismissed the count of first-degree sodomy and ordered venue transferred to the Butler Circuit Court due to pretrial publicity.
On November 25, 1998, Khan accepted the Commonwealth's offer on a plea of guilty to murder with an aggravating circumstance and first-degree rape. Under the offer, the sentence was life imprisonment without possibility of parole for 25 years on the murder conviction and life imprisonment on the rape conviction, with the sentences to run concurrently. The trial court accepted the guilty plea and sentenced Khan in accordance with the plea agreement on January 4, 1999. Prior to his final sentencing, Khan filed a motion to withdraw his guilty plea. After reviewing the record, the trial court determined that the plea was entered voluntarily, knowingly, intelligently and with the advice of counsel. Consequently, the court denied the motion.
On March 19, 2001, Khan filed a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to set aside his conviction. He also sought relief under RCr 10.26 and Kentucky Rules of Civil Procedure (CR) 60.02(f). Khan asserted that the Commonwealth had failed to present sufficient evidence supporting the aggravating circumstances and that his plea was not voluntary. On April 18, 2001, the trial court denied the motions without an evidentiary hearing or appointment of counsel. This Court affirmed the trial court's order on appeal. Shafi Ullah Khan v. Commonwealth, 2003 WL 21039108 (Ky. App. 2003)(2001- CA-000989-MR). The Kentucky Supreme Court later denied his motion for discretionary review.
On September 19, 2011, Khan filed a new motion to set aside his conviction pursuant to CR 60.02(f) and RCr 10.26. He again alleged that his plea was not knowing and voluntary due to a lack of evidence supporting the aggravating factors. Khan also maintains that his trial counsel pressured him into pleading guilty and failed to bring a timely motion to withdraw the guilty plea. On October 20, 2011, the trial court denied the motions without an evidentiary hearing or appointment of counsel. This appeal followed.
A defendant who is in custody under sentence or on probation, parole, or conditional discharge is required to avail himself of RCr 11.42 as to any grounds of which he is aware, or should be aware, during the period when the remedy is available to him. CR 60.02 is not intended merely as an additional opportunity to re-litigate the same issues which were or could "reasonably have been presented" by direct appeal or RCr 11.42 proceedings. RCr 11.42(2); Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). See also McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
In this case, Khan raises the same issues which he presented in his prior RCr 11.42 proceeding. In the prior appeal, this Court found that Khan had failed to support his assertions that his trial counsel: (1) failed to advise him that the evidence against him was insufficient to support the rape conviction; and (2) failed to advise him that whether there was sufficient evidence to establish that he had committed murder in the course of committing rape. Khan is not entitled to re-litigate those same issues in this proceeding.
Finally, we also conclude that RCr 10.26 is not a proper vehicle to raise this claim. That rule addresses the failure to preserve a trial error that affects the substantial rights of a party and permits review of an unpreserved error on appeal. The rule does not afford a separate basis for relief under RCr 11.42 or CR 60.02. Stoker v. Commonwealth, 289 S.W.3d 592 (Ky. App. 2009).
Accordingly, the order of the Butler Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Shafi Ullah Khan, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky