Opinion
NO. 2014-CA-001670-MR
05-19-2017
LARRY KNUCKLES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Meredith Krause Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LESLIE CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 82-CR-00039 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: Larry Knuckles brings this appeal from the Leslie Circuit Court's denial of his motion under CR 60.02 and RCr 10.26. He argues that his convictions for conspiracy, murder, and first-degree robbery violate our statutory prohibition against double jeopardy under KRS 505.020. Because his motion was not filed within a reasonable time, we affirm.
Kentucky Rules of Civil Procedure.
Kentucky Rules of Criminal Procedure.
Kentucky Revised Statutes.
Knuckles was indicted for one count of conspiracy, two counts of first-degree robbery, and one count of murder. On December 13, 1984, Knuckles pled guilty to each of these charges. He was sentenced to ten years' imprisonment for his conspiracy conviction, twenty years' imprisonment for each of his robbery convictions, and forty years' imprisonment for his murder conviction. The court ran Knuckles' conspiracy conviction and his murder conviction concurrently and his remaining convictions consecutively, for a total of eighty years' imprisonment.
KRS 506.040. The circuit court's judgment has a single count listed for "conspiracy to commit robbery and murder." We note Knuckles' indictment is not included in the record, but the charges for which he was indicted are listed in the judgment on his guilty plea.
On September 13, 2013, Knuckles filed a motion under CR 60.02 and RCr 10.26, alleging that his convictions violated the bar against double jeopardy. The circuit court denied Knuckles' motion.
During Knuckles' appeal, he became aware that the record in his case had gone missing. The circuit court entered an order stating it was unable to locate all of the documents in Knuckles' case filed prior to September 13, 2013 and all video records made prior to April 6, 2015. It further stated it did not rely upon those records in ruling upon Knuckles' CR 60.02 motion. "It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Knuckles' sole argument on appeal is that he should be entitled to an evidentiary hearing to determine whether his conspiracy conviction, together with his murder and first-degree robbery convictions, violate KRS 505.020. He argues that his judgment is void under CR 60.02(e) and that a double jeopardy violation is an extraordinary reason justifying relief under CR 60.02(f).
Knuckles has also requested palpable error relief under RCr 10.26. Palpable error review is improper in a CR 60.02 motion. Stoker v. Commonwealth, 289 S.W.3d 592, 598 (Ky. App. 2009). --------
Relief under CR 60.02 is "available only when a substantial miscarriage of justice will result from the effect of the final judgment." Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). "Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). We review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000).
We agree with the Commonwealth that Knuckles' claims are procedurally barred. Claims under CR 60.02(e) and (f) "shall be made within a reasonable time[.]" Knuckles' final judgment was entered on December 13, 1984, and he did not file a CR 60.02 motion until September 13, 2013, approximately twenty-nine years later. The Kentucky Supreme Court has held that a circuit court did not abuse its discretion in holding that five years was unreasonable amount of time to wait before filing a motion under CR 60.02(f). Gross, 648 S.W.2d at 858. Knuckles offers no reason for his extended delay in bringing this issue to light. Although the trial court did not find Knuckles' motion untimely, we "may affirm a lower court for any reason supported by the record." Carter v. Commonwealth, 449 S.W.3d 771, 776-77 (Ky. App. 2014). It is clear that Knuckles' motion was untimely filed.
Finally, Knuckles claims he is entitled to a hearing because his convictions "possibly" violate double jeopardy and "a violation of double jeopardy cannot be refuted." Knuckles has failed to present any details regarding his alleged double jeopardy violation other than the bare allegation that he was charged twice for the same offense. This Court has held that "[a]bsent specific allegations, [a criminal defendant] cannot set forth a claim for relief under CR 60.02." Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009). Knuckles has not made his claim with the requisite specificity to present a claim under CR 60.02.
Because we affirm, we do not address the Commonwealth's argument that Knuckles should have raised his argument in his previous motions.
We hold that Knuckles' motion is untimely and that he is unable to present this Court with more than bare speculation. The order of the Leslie Circuit Court denying Knuckles relief under CR 60.02 is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Meredith Krause
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky