Opinion
NO. 2011-CA-001977-MR
02-22-2013
TIMOTHY LEE MORRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Timothy Lee Morris, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, SPECIAL JUDGE
ACTION NO. 04-CR-00507
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. TAYLOR, JUDGE: Timothy Lee Morris brings this pro se appeal from a September 16, 2011, order of the McCracken Circuit Court, denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate. We affirm.
Pursuant to a plea agreement with the Commonwealth, appellant pleaded guilty to first-degree robbery and was sentenced to fifteen-years' imprisonment on June 6, 2005. Some six years thereafter, appellant filed a pro se CR 60.02 motion seeking vacation of his sentence of imprisonment. By order entered September 16, 2011, the circuit court denied the motion, thus precipitating this appeal.
Appellant contends that the circuit court erred by denying his CR 60.02 motion. Appellant argues: (1) he did not possess a gun during the commission of the robbery, thus his conviction of first-degree robbery was improper, and (2) he did not adequately understand the charges against him.
A CR 60.02 motion is an extraordinary remedy only available to remedy a "substantial miscarriage of justice." Wilson v. Com., 403 S.W.2d 710, 712 (Ky. 1966). And, it is well-settled that CR 60.02 is not a substitute for a direct appeal or a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. CR 60.02 relief is only available for issues that could not have been raised via direct appeal or RCr 11.42 motion. McQueen v. Com., 948 S.W.2d 415 (Ky. 1997); Gross v. Com., 648 S.W.2d 853 (Ky. 1983).
Appellant has set forth allegations concerning the sufficiency of evidence to convict him of first-degree robbery and his lack of understanding as to the charges. These allegations should have properly been raised either by direct appeal or by an RCr 11.42 motion. However, as appellant entered a guilty plea, he thereby admitted to the sufficiency of the evidence. Nevertheless, appellant has not presented allegations of error entitling him to relief pursuant to CR 60.02. Thus, we conclude the circuit court did not abuse its discretion by denying appellant's CR 60.02 motion. See Brown v. Com., 932 S.W.2d 359 (Ky. 1996).
For the foregoing reasons, the order of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy Lee Morris, Pro Se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky