Opinion
NO. 2015-CA-000927-MR
02-17-2017
TYRONE MARSHALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Tyrone P. Marshall LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 99-CR-00042 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Tyrone P. Marshall (Marshall) brings this appeal from the Oldham Circuit Court's denial of his motion pursuant to Kentucky Rule of Civil Procedure (CR) 60.02 and Kentucky Rule of Criminal Procedure (RCr) 10.06(1). He argues that an affidavit from a co-defendant impeaching the testimony of a trial witness constitutes newly discovered evidence. Because we hold that Marshall's motion was untimely, successive and meritless, we affirm.
Facts
Marshall was convicted in the Oldham Circuit Court of murder, criminal attempt to commit murder and burglary in the first degree. He was sentenced to life in prison without the possibility of parole for twenty-five years for the murder conviction and to twenty years each on the attempted murder and burglary in the first degree convictions, each to run concurrently with the life sentence. He appealed to the Kentucky Supreme Court as a matter of right, and our Supreme Court affirmed Marshall's convictions. Marshall v. Commonwealth, 60 S.W.3d 513, 516 (Ky. 2001). Marshall then filed a motion under RCr 11.42, and appealed the denial of that motion to this Court. We affirmed. Marshall v. Commonwealth, No. 2003-CA-000249-MR, 2004 WL 1535607 (Ky. App. July 9, 2004). Marshall filed a petition for habeas corpus in the United States District Court for the Western District of Kentucky, which denied his petition. He appealed that decision to the United States Sixth Circuit Court of appeals, which affirmed. Marshall v. Morgan, 260 F. App'x 789, 790 (6th Cir. 2008). Marshall then filed a motion under CR 60.02 and appealed the denial of that motion to this Court. Marshall v. Commonwealth, No. 2011-CA-001582-MR, 2013 WL 489670 (Ky. App. Feb. 8, 2013). In that case, Marshall argued, in part, that "his co-defendants['] affidavits directly contradict the testimony of two trial witnesses." Id. at *1. We affirmed. Id. at *2. Marshall then filed his second motion pursuant to CR 60.02. The circuit court denied that motion, and this appeal follows.
Analysis
Marshall's sole issue on appeal is that he has newly discovered exculpatory evidence in the form of an affidavit by Richard Strode, stating that Strode's girlfriend told him that she would receive a favorable sentence for herself and Strode in exchange for testifying against Marshall.
The trial court's denial of a CR 60.02 motion is reviewed for an abuse of discretion. Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010). A trial court abuses its discretion when its decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted). The Kentucky Supreme Court "has attempted to make abundantly clear . . . that CR 60.02 and RCr 11.42 motions are not to be used to relitigate previously determined issues." Baze v. Commonwealth, 276 S.W.3d 761, 765-66 (Ky. 2008).
We agree with the Commonwealth that the motion in the present case is successive. "Our courts do not favor successive collateral challenges to a final judgment of conviction which attempt to relitigate issues properly presented in a prior proceeding." Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009). Marshall previously filed a motion pursuant to CR 60.02, which he appealed to this Court. He has provided no explanation as to why he could not have brought the arguments in this case in that motion. In fact, his current claim is based upon an affidavit from his co-defendant, Strode, yet he was in contact with Strode before his prior CR 60.02 motion was filed. This is evident because another affidavit by Strode was submitted in support of Marshall's prior CR 60.02 motion. Thus, Marshall could have obtained the current information from Strode before he filed his prior CR 60.02 motion. "Our interest in the finality of judgments and the timely imposition of sentences is axiomatic. Both the patience and resources of this Court are stretched by repeated motions for post-conviction relief . . . ." Baze v. Commonwealth, 276 S.W.3d 761, 768 (Ky. 2008). Simply stated, "CR 60.02 does not permit successive post-judgment motions . . . ." Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014).
As this Court stated when we affirmed Marshall's first CR 60.02 motion:
The affidavits of appellant's co-defendants do not constitute newly discovered evidence pursuant to CR 60.02(b). To constitute newly discovered evidence, such evidence must not have been available before or during trial. So, a known witness who comes forward with alleged exculpatory evidence after trial does not constitute newly discovered evidence. Carwile v. Com., 694 S.W.2d 469 (Ky. App. 1985). And, the allegations of error raised in appellant's CR 60.02 motion should have been raised by direct appeal and are not within the purview of CR 60.02. Accordingly, we conclude that the circuit court properly denied appellant's CR 60.02 motion.Marshall, 2013 WL 489670, at *1. The evidence Marshall requests the Court to consider now - an affidavit from a former potential witness who allegedly came forward with exculpatory evidence - is of the same type that Marshall offered in his previous CR 60.02 motion. Indeed, Strode provided an affidavit in Marshall's previous CR 60.02.
Marshall's motion was also untimely. Final judgment was entered on September 17, 1999, and his current CR 60.02 motion was filed on October 23, 2014. Marshall waited over fifteen years to file this motion. Our Supreme Court has previously held that a trial court did not abuse its discretion in holding that five years was an unreasonable amount of time to wait before filing a motion under CR 60.02(f). Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Moreover, as noted by the circuit court, Strode's affidavit is based entirely on hearsay, and Marshall has not shown that any exceptions to the hearsay rule apply. Consequently, the court did not err in denying Marshall's CR 60.02 motion.
To the extent Marshall alleges that the circuit court should have granted his motion for a new trial under RCr 10.06(1) due to his allegation that the affidavit constitutes "newly discovered evidence," his claim fails. First, as previously explained, the affidavit is not "evidence" because it is based on hearsay. Thus, it does not constitute "newly discovered evidence." Second, even if it were "evidence," Marshall's RCr 10.06(1) motion would still fail because it was filed too late, i.e., more than one year after the judgment was entered against him. See RCr 10.06(1).
We caution Marshall in seeking in forma pauperis status in the future before collaterally attacking his conviction. This was Marshall's third successive post-conviction motion, and it was frivolous. In Cardwell v. Commonwealth, 354 S.W.3d 582 (Ky. App. 2011), upon the filing of a pro se litigant's fourth successive post-conviction motion, a panel of this Court noted that "where a pro se litigant files repetitious and frivolous claims, a court may bar prospective filings to prevent the deleterious effect of such filings on scarce judicial resources." Cardwell, 354 S.W.3d at 585. This Court then "direct[ed] the circuit court to deny all future requests for in forma pauperis status [the appellant might] file[] to pursue subsequent collateral attacks on this conviction." Id. The Cardwell Court also noted, "the judiciary's conciliatory attitude toward unrepresented parties is not boundless." Id. at 585.
Because Marshall's motion was untimely, successive and meritless, the judgment of the Oldham Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Tyrone P. Marshall
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky