Opinion
NO. 2011-CA-001535-MR
03-08-2013
BOBBY PHILLIPS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Bobby Phillips, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE DOUGLAS M. GEORGE, JUDGE
ACTION NO. 02-CR-00070
OPINION
AFFIRMING
BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES. KELLER, JUDGE: Bobby Phillips (Phillips) appeals from the circuit court's denial of his Kentucky Rule of Civil Procedure (CR) 60.02 motion. On appeal, Phillips argues that he and the trial judge are distant relatives and that there is "a lot of hatred in the family history" between Phillips's side of the family and the judge's. Phillips also argues that his trial counsel was ineffective for failing to adequately inform him about a plea offer and for failing to adequately prepare for trial. The Commonwealth argues that Phillips's action is barred because he failed to raise these issues in his previous direct appeal, his previous Kentucky Rules of Criminal Procedure (RCr) 11.42 action, and his previous CR 60.02 action. For the following reasons, we agree with the Commonwealth and affirm.
FACTS
We take our recitation of the underlying facts from our Opinion on direct appeal.
On September 16, 2002, Phillips was indicted by the Clinton County grand jury for robbery in the first degree and assault in the fourth degree. Charles Jolly, a 78-year-old man who was acquainted with Phillips, had alleged that on September 2, 2002, when he gave Phillips a ride, Phillips held a knife to Jolly's throat causing him physical injury. Jolly accused Phillips of robbing him of his billfold and automobile.Phillips v. Commonwealth, 2003-CA-000359-MR, 2004 WL 2634525, at *1 (Ky. App. Nov. 19, 2004).
At a jury trial held on December 11, 2002, the trial court granted Phillips a directed verdict of acquittal on the assault charge on the basis that the assault charge merged into the robbery charge. However, the jury found Phillips guilty of robbery in the first degree and recommended a prison sentence of 17 1/2 years. The trial court subsequently entered a final judgment and sentence consistent with the jury's verdict and recommendation.
Phillips filed a direct appeal arguing that the court erroneously admitted a computer printout of his criminal record containing inadmissible evidence of past charges. This Court, noting that the issue was not properly preserved, affirmed Phillips's conviction and sentence. Furthermore, this Court stated that any issue Phillips had with counsel's failure to object to the admission of the printout was proper for an RCr 11.42 claim, not a direct appeal. Id. at *1-2.
Thereafter, Phillips filed an RCr 11.42 claim arguing that his trial counsel: had a conflict of interest; was ineffective for failing to object to the introduction of the printout; and failed to subject the prosecution's case "to meaningful adversarial testing." Phillips v. Commonwealth, 2006-CA-001391-MR, 2007 WL 1794908, at *4 (Ky. App. June 22, 2007). Following an evidentiary hearing, the trial court denied Phillips's motion and this Court affirmed. Id.
Phillips then filed a CR 60.02(e) and (f) and RCr 10.26 motion arguing that: his trial counsel "had established a pattern of abuse in failing to take action on his clients [sic] claims and in their behalf;" the Commonwealth failed to establish in what jurisdiction the crime occurred; one of the jurors was biased; and he was "denied the right to present to the Trial Jury evidence of actual innocence." The trial court denied Phillips's motion, and he appealed to this Court. This Court summarily dismissed Phillips's appeal because he did not file a brief.
Phillips then filed a second CR 60.02 motion, making the same arguments he makes here. Because of the allegations Phillips made against the trial judge, the Supreme Court of Kentucky appointed a special judge to handle Phillips's motion. That judge appointed counsel; however, apparently on motion by the Department of Public Advocacy (DPA), the judge permitted DPA to withdraw. The judge then issued an order denying Phillips's motion. Phillips now appeals from that order.
STANDARD OF REVIEW
"The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). To amount to an abuse of discretion, the trial court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principals." Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). Absent a "flagrant miscarriage of justice," we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
ANALYSIS
The purpose of CR 60.02 is to provide relief which is not available by direct appeal or under RCr 11.42. Gross, 648 S.W.2d at 856. CR 60.02 is not intended as an additional opportunity to re-litigate the same issues that could have been presented by direct appeal or in RCr 11.42 proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Furthermore, to be entitled to a hearing on his motion, the movant "must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify . . . relief." Gross 648 S.W.2d at 856.
Phillips could have and should have raised the issue of judicial bias at the trial court level before trial or, at the latest, in his first CR 60.02 motion. Because he failed to do so, he is foreclosed from doing so now. Furthermore, even if not foreclosed from raising the issue, Phillips's motion is defective because he failed to affirmatively set forth how the trial judge's alleged bias negatively impacted the proceedings.
As to Phillips's claim of ineffective assistance of counsel, this should have been included in his RCr 11.42 motion. RCr 11.42(3) provides that:
The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.
In a handwritten document filed on February 18, 2003, Phillips lists a number of complaints against his trial attorney. One of those complaints is that he was not adequately advised about plea negotiations. Therefore, it is clear that Phillips knew of this potential claim at the time he filed his RCr 11.42 motion and his failure to include it in that motion forecloses him from raising it now.
CONCLUSION
For the foregoing reasons, we affirm the circuit court's denial of Phillips's CR 60.02 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Bobby Phillips, pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky