Opinion
NO. 2018-CA-001050-MR
05-17-2019
DON REED APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Don Reed, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE EDDY COLEMAN, SPECIAL JUDGE
ACTION NO. 07-CR-00038 OPINION
AFFIRMING
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BEFORE: DIXON, SPALDING, AND TAYLOR, JUDGES. DIXON, JUDGE: Don Reed, proceeding pro se, appeals an order of the Magoffin Circuit Court denying his request for post-conviction relief pursuant to RCr 10.26. Because Reed's motion is procedurally improper, we affirm.
Kentucky Rules of Criminal Procedure.
Reed was convicted of murder, tampering with physical evidence, and abuse of a corpse by a Magoffin County jury and was sentenced to life in prison. The Supreme Court of Kentucky affirmed his conviction. Reed v. Commonwealth, 2008-SC-000117-MR, 2009 WL 735884, at *1 (Ky. Mar. 19, 2009).
Kentucky Revised Statutes (KRS) 507.020, a capital offense.
KRS 524.100, a Class D felony.
KRS 525.120, a Class A misdemeanor.
Reed later filed a combined RCr 11.42 and CR 60.02 motion to vacate his judgment and sentence. The trial court held an evidentiary hearing on February 15, 2011. Reed's motion was denied by order entered January 26, 2012, and this Court affirmed the trial court's decision upon appeal. Reed v. Commonwealth, 2012-CA-000697-MR, 2013 WL 6050768 (Ky. App. Nov. 15, 2013).
Kentucky Rules of Civil Procedure. --------
On May 16, 2018, Reed filed a "Motion for Relief Pursuant to RCr 10.26 Substantial Error," in which he argued: (1) the indictment improperly labeled murder as a Class A felony; (2) the indictment did not differentiate between intentional and wanton murder; (3) the judge set his penalty instead of the jury; and (4) his counsel was ineffective. The trial court denied Reed's motion by order entered May 24, 2018. This appeal followed.
On appeal, Reed raises the same arguments addressed by the trial court's order denying relief. Although the trial court discussed the merits of Reed's claims, we decline to do so because his motion was procedurally improper. See Lynn v. Commonwealth, 257 S.W.3d 596, 599 (Ky. App. 2008). Reed requests relief pursuant to RCr 10.26, known as the palpable error rule, which provides:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
Reed's motion raises issues that should have been litigated in his prior post-conviction proceedings, so they are not reviewable in the present proceedings. "[T]he proper procedure for a defendant aggrieved by a judgment in a criminal case is to directly appeal that judgment, stating every ground of error which it is reasonable to expect that he or his counsel is aware of when the appeal is taken." Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Then, a defendant must "avail himself of RCr 11.42[,]" which "conclude[s] all issues that reasonably could have been presented in that proceeding." Id. Finally, a defendant may request relief pursuant to CR 60.02. Id. Successive post-judgment motions are prohibited, and CR 60.02 "may be utilized only in extraordinary situations when relief is not available on direct appeal or under RCr 11.42." Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014) (citing McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997)).
Here, Reed directly appealed his judgment and requested relief pursuant to RCr 11.42 and CR 60.02 in a joint motion. All claims at issue should have been raised in Reed's previous requests for post-conviction relief. Additionally, RCr 10.26 is not a proper rule under which to collaterally attack a judgment because it is a statutory standard of review that applies only on direct appeal. Stoker v. Commonwealth, 289 S.W.3d 592, 598 (Ky. App. 2009). Therefore, because Reed's motion is successive and procedurally improper, we cannot reach the merits of his claim.
For the foregoing reasons, the order of the Magoffin Circuit Court denying Reed's motion for post-conviction relief is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Don Reed, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky