Opinion
NO. 2013-CA-001181-MR
03-28-2014
NATHAN COLE MEACHAM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Nathan C. Meacham LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 94-CR-00014
OPINION
AFFIRMING
BEFORE: DIXON, NICKELL AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Nathan Cole Meacham, appeals pro se from an order of the Mason Circuit Court denying his motion to modify or correct his sentence under CR 60.02. Finding no error, we affirm.
In 1994, Appellant and his brother were indicted by a Mason County Grand Jury for first-degree burglary, three counts of first-degree rape, four counts of first-degree kidnapping, first-degree rape and first-degree sexual abuse. On April 21, 1995, both entered into a plea agreement with the Commonwealth wherein they each agreed to an aggregate term of forty-five years' imprisonment. As part of Appellant's plea agreement, he admitted the following details:
I forcibly entered the second story of the locked residence of the Tom and Barbara Clarke family without permission; I took personal property from three of the residents at gunpoint; I held the four residents at gun point against their will; I subjected Barbara Clarke to sexual contact against her will; I aided Lance Meacham in engaging in sexual intercourse with one resident [Sally Clarke] against her will by forcible compulsion while armed with a deadly weapon.On May 22, 1995, the trial court entered judgment accordingly.
On March 6, 2013, almost eighteen years after the judgment, Appellant filed a pro se CR 60.02 motion in the trial court to modify his sentence on the grounds that prosecution for burglary and robbery with the same handgun, as well as prosecution for rape and sexual assault, violated the prohibition against double jeopardy. On April 1, 2013, the trial court denied the motion for relief. This appeal ensued.
In this Court, Appellant argues that the trial court erred in ruling that burglary and robbery are distinct offenses. Rather, Appellant contends that both occurred as a continuing course of conduct and could not be prosecuted separately. We disagree.
At the outset we must agree with the Commonwealth that Appellant's CR 60.02 claim is not only obviously untimely, as it has been eighteen years since his sentence was imposed, but also an improper procedural vehicle. Our Supreme Court has consistently limited the availability of CR 60.02 relief in criminal cases, holding in McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997), cert. denied, 521 U.S. 1130 (1997):
The interrelationship between CR 60.02 and RCr 11.42 was carefully delineated in Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983). In a criminal case, these rules are not overlapping, but separate and distinct. 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 ground of which he is aware, or should be aware, during the period when the remedy is available to him. Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could "reasonably have been presented" by direct appeal or RCr 11.42 proceedings. RCr 11.42(3); Gross v. Commonwealth, supra, at 855, 856. The obvious purpose of this principle is to prevent the relitigation of issues which either were or could have been litigated in a similar proceeding. . . . In summary, CR 60.02 is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings.Appellant chose not to avail himself of the RCr 11.42 process and thus is precluded from asserting his current claim via CR 60.02.
Notwithstanding the procedural defect, Appellant's claim is wholly without merit. As the trial court ruled, burglary and robbery are separate distinct offenses. Jordan v. Commonwealth, 703 S.W.2d 870, 873 (Ky. 1985). The legislature clearly contemplated that burglary is an offense against property inasmuch as it mandates unlawful entry into a building to obtain a conviction. Such entry, however, is not a part of the evidence necessary to convict of first-degree robbery which is an offense against persons. Prosecution and conviction on both offenses in a single indictment, albeit premised on the same incident, constitutes "merely a single prosecution for separate statutory crimes[,]" and does not violate the prohibition against double jeopardy. Id.
The order of the Mason Circuit Court denying Appellant's motion for relief pursuant to CR 60.02 is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Nathan C. Meacham
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky