Opinion
NO. 2011-CA-001319-MR NO. 2012-CA-000541-MR
03-27-2015
JOSEPH ROACH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Katherine M. Dittmeier Holm Assistant Public Advocate LaGrange, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM JEFFERSON CIRCUIT COURT
HONORABLE IRV MAZE, JUDGE
ACTION NO. 02-CR-000273
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Joseph Roach appeals from two orders of the Jefferson Circuit Court, the first entered on June 30, 2011, denying his motion for RCr 11.42 relief, and the second entered on March 5, 2012, denying his motion for CR 60.02 relief. We affirm.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
I. Facts and Procedure
In 2005, Roach was convicted of murder, misdemeanor theft by unlawful taking, and misdemeanor sexual abuse. He was sentenced to life imprisonment. Roach appealed as a matter of right to the Kentucky Supreme Court; the Court affirmed Roach's convictions. Roach v. Commonwealth, 2005-SC-0211-MR, 2006 WL 2986492, at *1 (Ky. Oct. 19, 2006). In so doing, the Court summarized the facts of the underlying criminal matter as follows:
Roach and another male [John Drake] went to the apartment of the victim . . . where Roach and the woman smoked crack cocaine. Roach asked [John] to leave because he intended to have sex with the victim in exchange for giving her more crack cocaine. Roach later woke [John] who was sleeping in the car and they both returned to the apartment. The victim had been severely beaten about the head with what was believed to be a golf club and she had been choked. She was found dead by a neighbor the next day. Roach and [John] had tried to wash the victim's body and cleaned off fingerprints from her apartment. They also took several video tapes and a VCR from the apartment. The VCR was located at [John's] apartment while Roach retained possession of several video tapes.Id. No DNA or fingerprints belonging to Roach or John were found in the victim's apartment.
Before Roach's trial, John pleaded guilty to facilitation to murder and robbery in exchange for his testimony against Roach. John was sentenced to serve fifteen years in prison.
On June 19, 2007, Roach, pro se, sought relief from his conviction under RCr 11.42, alleging ineffective assistance of counsel. Roach claimed his trial counsel failed to: (i) interview John's brother, Hugh Drake; and (ii) request supplemental mitochondrial DNA testing.
Almost four years later, on March 15, 2011, Roach filed a pro se supplemental RCr 11.42 motion asserting, for the first time, a claim of ineffective assistance of appellate counsel (IAAC). Specifically, Roach asserted the circuit court erroneously refused to permit his trial counsel to present expert testimony by avowal. Roach argued that his appellate counsel failed to raise on direct appeal what he considered the trial court's clear error.
By order entered June 30, 2011, the circuit court denied Roach's RCr 11.42 motion without explanation. Roach timely appealed.
Concomitantly with his supplemental RCr 11.42 motion, on March 17, 2011, Roach moved to modify his sentence pursuant to CR 60.02(e) and (f) based upon newly discovered evidence that allegedly revealed John, not Roach, had murdered the victim. Specifically, Roach asserted that John, while incarcerated, repeatedly confessed to murdering the victim himself, admitted that Roach did not partake in the killing, and admitted he perjured himself at Roach's trial to obtain a more lenient sentence. To substantiate his claim, Roach submitted three affidavits from other inmates who claimed to have heard John's confessions.
The Commonwealth opposed Roach's CR 60.02(e), (f) motion, describing it as a CR 60.02(b) motion in disguise, and arguing that it was time-barred because it was predicated upon an allegation of newly discovered evidence which is subject to a one-year time limitation. The circuit court agreed, finding that "Roach's motion rests entirely upon newly discovered evidence . . . . [Therefore,] CR 60.02(b) applies, and as this motion is made in excess of one year from the date of judgment, the motion is time barred[.]" (R. at 1523-24). By order entered March 5, 2012, the circuit court denied Roach's CR 60.02 motion. Roach also appealed from this order.
We have consolidated these appeals in the interest of judicial economy.
II. RCr 11.42
Roach argues the circuit court erred when it denied his RCr 11.42 motion without first conducting an evidentiary hearing. Roach contends that the record offers no explanation as to why appellate counsel failed to raise the avowal issue on direct appeal, and is likewise silent as to why trial counsel failed to interview Hugh Drake prior to trial. Because these issues cannot be resolved by resorting to the record alone, Roach contends, an evidentiary hearing was warranted.
A. Standards Governing Our Review
Not every claim of ineffective assistance merits an evidentiary hearing. Nor is an RCr 11.42 movant automatically entitled to one. See Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). The law on this issue is clear: the circuit court need only conduct an evidentiary hearing if (i) the movant establishes that the error, if true, entitles him or her to relief under RCr 11.42; and (ii) the motion raises an issue of fact that "cannot be determined on the face of the record." Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (citation omitted). With respect to the former, to warrant RCr 11.42 relief, "[f]irst, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
An evidentiary hearing is certainly not necessary to consider issues already refuted by the record. Stanford, 854 S.W.2d at 743-44. Neither this Court nor the circuit court, however, is permitted to casually "disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). Accordingly, absent evidence in the record refuting the allegations raised, provided it would otherwise warrant relief under RCr 11.42, an evidentiary hearing must be conducted. Parrish, 272 S.W.3d at 166.
It has been said often that a defendant only has a right to "counsel likely to render reasonably effective assistance" and "is not guaranteed errorless counsel, or counsel judged ineffective by hindsight[.]" Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). With the above standards in mind, we turn to Roach's ineffective-assistance allegations.
B. Ineffective Assistance of Appellate Counsel
Roach contends the circuit court erred by overruling his IAAC claim without first conducting an evidentiary hearing. In Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010), as modified (April 21, 2011), the Supreme Court announced for the first time that criminal defendants may collaterally attack their convictions on the grounds that they received ineffective assistance of appellate counsel. Id. at 434. Before turning to the merits of Roach's argument, we first address the Commonwealth's contention that we need not consider this argument because Roach's IAAC was raised in an untimely supplemental RCr 11.42 motion that did not relate back to his original motion.
In Kentucky, a defendant has "three years after the judgment [of conviction] becomes final" to file any motion to vacate under the rule. RCr 11.42(10). The time for filing an RCr 11.42 motion runs from the date on which the appellate court enters its judgment on direct appeal, rather than from the date on which the trial court entered the judgment of conviction. Palmer v. Commonwealth, 3 S.W.3d 763, 764-65 (Ky. App. 1999).
In this case, the circuit court entered its judgment of conviction and sentence in February 2005. The Kentucky Supreme Court affirmed Roach's conviction on direct appeal on October 19, 2006, and the decision became final on November 9, 2006. CR 76.30(2)(a) ("An opinion of the Supreme Court becomes final on the 21st day after the date of its rendition unless a petition under Rule 76.32 has been timely filed[.]"). Thus, Roach had until November 9, 2009, to seek relief pursuant to RCr 11.42. Without question, Roach's original motion, filed on June 19, 2007, fell within the three-year time limit of RCr 11.42(10). The issue lies with Roach's supplemental RCr 11.42 motion, which was not filed until March 15, 2011 - one and one-half years after the three-year period had elapsed.
In Roach v. Commonwealth, 384 S.W.3d 131 (Ky. 2012), our Supreme Court held that the movant's amended RCr 11.42 motion, which raised claims factually unrelated to the claims raised in his original motion, did not relate back and were untimely. Id. at 138. The Court noted that "[n]either RCr 11.42 itself, nor any other provision of the Criminal Rules, addresses whether and how motions under the rule may be amended" or supplemented. Id. at 135. Invoking the authority of RCr 13.04, the Court turned to CR 15, which allows "amendments [to pleadings] offered after the statute of limitations has run [to] relate back to the date of the (timely) original pleading provided that the 'claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'" Id. at 135-36 (quoting CR 15.03(1)).
The movant/appellant, Terry Roach, in the cited Supreme Court opinion is not the same movant/appellant, Joseph Roach, in the case currently before us.
That rule states that "[t]he Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure." RCr 13.04.
Unfortunately, neither Roach nor the cases it cites for this principle explains why rules designed solely to provide a means by which "[a] party may amend his pleading[,]" CR 15.01 (emphasis added), so that "the amendment relates back to the date of the original pleading[,]" CR 15.03 (emphasis added), can be used to amend and relate back to the original RCr 11.42 motion. The civil rules, CR 7.01 and CR 7.02, clearly distinguish between pleadings and motions; a motion is not a pleading. See also Kentucky Lake Vacation Land, Inc. v. State Property and Bldgs. Comm'n, 333 S.W.2d 779, 781 (Ky. 1960)(citing CR 7.01 and 7.02).
The Supreme Court in Roach cited Hodge v. Commonwealth, 116 S.W.3d 463, 472 (Ky. 2003) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)), and Bowling v. Commonwealth, 926 S.W.2d 667, 670 (Ky. 1996).
Notwithstanding Roach's lack of explicit articulation of the rationale for applying CR 15, the holding is consistent with our procedural rules. However, because that rationale is not explicitly stated anywhere, some may be led to blur the distinction between pleadings and motions in other contexts, or to presume that RCr 11.42 provides an exception to the distinction. The reasoning that reconciles Roach with these procedural rules is implicit and discernible from the jurisprudence.
"Before the adoption of [RCr 11.42], such defects [as ineffective assistance of counsel] might be reached and corrected by the writ of habeas corpus[.]" Tipton v. Commonwealth, 376 S.W.2d 290, 291 (Ky. 1964) (Moreman, J., concurring). In the early 1960s, "[w]e . . . chang[ed] the rule in Kentucky applicable to habeas corpus, so that it will conform to the [more relaxed] federal rule[.]" Id. Soon, the Supreme Court adopted RCr 11.42 to allow a criminal defendant to "proceed directly by motion" to set aside a "sentence [that] is subject to collateral attack[.]" RCr 11.42. The rule was "designed to furnish a new and more satisfactory form of remedy than habeas corpus," Tipton, 376 S.W.2d at 290 (emphasis omitted), and to "replace coram nobis." RCr 11.42, Supreme Court Commentary 1962.
Before the rule, pursuit of a writ of habeas corpus or writ of coram nobis was a collateral attack upon a judgment, initiated by the filing of a petition. After the rule, the proceeding remains "at root and in essence a collateral attack on the judgment, and RCr 11.42 is, in our comprehensive scheme of post-conviction review, the stage at which such an attack is to be raised." Hollon, 334 S.W.3d at 439. Therefore, notwithstanding the rule's use of the word "motion," the document initiating the proceeding, in its nature, remains a petition and a petition is a pleading. This is why CR 15 is applicable to amendments to the pleading that initiates post-conviction relief under RCr 11.42.
This is the same reasoning justifying application of Federal Rule of Civil Procedure 15 to motions brought under 28 U.S.C § 2255 to vacate, set aside, or correct the sentence, i.e., a habeas corpus proceeding. The reasoning is simply that post-conviction motions are in the nature of petitions for writs and petitions are pleadings. Anderson v. U.S., 39 Fed.Appx. 132, passim (6th Cir. 2002); see also Artiaga v. Money, No. 3:04-cv-7121, 2006 WL 1966612, at *15 (N.D.Ohio, July 11, 2006) ("'Pleadings' under the Federal Rules of Civil Procedure are exclusively the complaint, an answer, and in some cases a reply. Fed.R.Civ.P. 7. The 'original pleading' in a habeas proceeding is the original habeas petition. Gibson v. Wolfe, No. 2:04-cv-272, 2006 U.S. Dist. LEXIS 30082 at *14 (S.D.Ohio Apr. 17, 2006)").
Roach is much more explicit when it comes to how to apply CR 15 to RCr 11.42 proceedings. The Supreme Court acknowledged that application was not without difficulties. In the end, however, the Court found the relevant inquiry to be whether the new, untimely claims "are related to the original ones by shared facts such that the claims can genuinely be said to have arisen from the same 'conduct, transaction, or occurrence.'" Id. at 137. The Court construed the "conduct, transaction, or occurrence" standard narrowly. "New claims based on facts of a different time or type will not meet that standard[.]" Id.; Mayle v. Felix, 545 U.S. 644, 659, 125 S.Ct. 2562, 2572, 162 L.E.2d 582 (2005) (cited with approval in Roach) ("[R]elation back depends on the existence of a common 'core of operative facts' uniting the original and newly asserted claims." (Citation omitted)). Applying the "same conduct, transaction, or occurrence" standard, the Supreme Court concluded that the movant's untimely claim that his trial counsel failed to investigate a witness did not relate back to movant's timely claims that trial counsel misinterpreted the sentencing laws and failed to seek suppression of certain evidence. Id. at 138; Mayle, 545 U.S. at 659, 126 S.Ct. at 2572 (petitioner's untimely Fifth Amendment claim that his pretrial statement to police had been coerced did not relate back to his timely Sixth Amendment claim that a witness's videotaped police statement had been improperly admitted at trial).
In the case before us, we agree with the Commonwealth that Roach's untimely supplemental RCr 11.42 motion identifies a new ground for relief supported by facts that differ both in time and in type from those he identified in support of his timely claims of ineffective assistance. Roach's original ineffective-assistance claims address trial counsel's alleged failure to investigate and request additional DNA testing, while his untimely ineffective-assistance claim addresses appellate counsel's failure to raise an allegedly meritorious issue on direct appeal. The claims do not share a single fact in common. Indeed, the claims do not even involve the same attorney. At most, it can be said that the claims relate generally to Roach's trial. But such a broad reading of the "conduct, transaction, and occurrence" standard finds no support in Kentucky jurisprudence. See Roach, 384 S.W.3d at 136 (noting with approval the United State Supreme Court's rejection in Mayle of the petitioner's "broad reading" of the "transaction or occurrence" standard to mean any claim related to the petitioner's trial and conviction). Accordingly, we find Roach's new claim of ineffective assistance of appellate counsel cannot be said to have arisen from the same "conduct, transaction, or occurrence" as the original, timely claims of ineffective assistance, and therefore "does not qualify for relation back under CR 15.03(1)." Roach, 384 S.W.3d at 138.
Roach vehemently argues that the Commonwealth may not offer this ground (timeliness) to us because: (i) it failed to raise it before the trial court; and (ii) it is an affirmative defense which the Commonwealth waived. However, "it is well-settled that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009); Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky. 2009) ("[A]n appellate court may affirm a lower court's decision on other grounds as long as the lower court reached the correct result."). We choose to address the issue.
Roach asserts Hollon permits this Court to consider his IAAC claim - despite the fact that it was filed outside the three-year limitations period - because, therein, the Supreme Court held: "[Our ruling] applies to this case, to cases pending on appeal in which the issue has been raised and preserved, and to cases currently in or hereafter brought in the trial court in which the issue is raised." Hollon, 334 S.W.3d at 439 (emphasis added). Because Roach raised his IAAC argument in a supplemental filing while his case was still pending in the trial court, Roach argues this Court should consider the argument. We disagree with Roach's interpretation of Hollon. In our view, Hollon only applies if the IAAC claim was raised in the trial court before Hollon was rendered, or is raised post-Hollon in a timely RCr 11.42 motion. We think the Supreme Court sought not to prejudice those with the foresight to assert an IAAC claim despite the fact that, until Hollon, Kentucky had stubbornly refused to recognize such a claim. After all, "[e]ven a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid." Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). We do not think our Supreme Court intended to create an escape hatch by which movants could circumvent the time mandates of RCr 11.42(10).
Roach also claims he was entitled to raise the issue outside the limitations period based on RCr 11.42(10)(b). Roach correctly asserts that, in certain circumstances the three-year period may be extended under RCr 11.42(10)(b) if the fundamental constitutional right asserted by the movant was not established within the three-year period and the right applies retroactively. Armed with RCr 11.42(10)(b), Roach argues that his failure to raise ineffective assistance of appellate counsel should be excused because, at the time he filed his original RCr 11.42 motion, Kentucky did not recognize IAAC as a cognizable claim. While Roach's assessment of RCr 11.42(10)(b) is certainly on point, his argument is fundamentally flawed. RCr 11.42(10)(b) only extends the three-year limitations period if the new constitutional right applies retroactively. The Court in Hollon, however, explicitly and unequivocally held that its ruling is to have prospective effect only. Hollon, 334 S.W.3d at 439 (emphasis added). Consequently, RCr 11.42(10)(b) provides Roach no relief.
Finally, Roach argues he is entitled to equitable tolling. The doctrine of equitable tolling, as its name suggests, rests on considerations of equity and fair play. In Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005), overruled by Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011), the Kentucky Supreme Court adopted and deemed applicable the equitable-tolling doctrine to cases in which an inmate attempts to timely file a post-conviction motion within the three-year time limit, but fails through no fault of his own. Id. at 792. Several years after Robertson, the Supreme Court adopted "the prison mailbox rule," rendering needless the equitable tolling test espoused in Robertson. Hallum, 347 S.W.3d at 59 ("With the recent enactment of the prison mailbox rule, the burdensome equitable tolling test is now duplicative and superfluous . . .; thus, there is no longer a need for Robertson's equitable tolling provision.").
The continuing applicability of the equitable tolling doctrine to post-convictions motions post-Hallum is certainly in a state of flux. However, we need not address or resolve that issue today. Assuming the Robertson equitable tolling test still applies otherwise than in prison mailbox cases, we nonetheless refuse to apply it in cases, such as this one, where application of the doctrine would frustrate and render meaningless the Supreme Court's clear and unequivocal directive in Hollon that its "ruling is to have prospective effect only." 334 S.W.3d at 439.
At least one panel of this Court has held that the equitable tolling doctrine still applies to post-conviction motions "that do not involve the prison mailbox rule" and "that meet the strict standards of tolling relief." Treat v. Commonwealth, No. 2010-CA-002220-MR, 2012 WL 1886512, at *2 (Ky. App. May 25, 2012).
In sum, we find Roach's IAAC claim was asserted, for the first time, in a supplemental RCr 11.42 motion filed outside the three-year time period of RCr 11.42(10). Accordingly, we affirm the circuit court's denial of Roach's IAAC claim, albeit upon different grounds.
C. Ineffective Assistance of Trial Counsel
Roach next argues that the circuit court erroneously denied his RCr 11.42 motion without holding an evidentiary hearing to resolve his claim of trial counsel's ineffectiveness for failure to investigate and interview Hugh Drake. Roach alleged in his RCr 11.42 motion that trial counsel's file indicated they were aware of Hugh, but they nonetheless failed to locate and interview him prior to Roach's trial. Roach further alleged that Hugh possessed exculpatory evidence vital to Roach's case that trial counsel, if they had interviewed Hugh, would have uncovered. Specifically, in October 2006, Hugh provided a sworn affidavit to Roach, stating that John had essentially confessed to killing the victim, and planned to set someone else up for the murder. Roach maintains that presenting Hugh's testimony at trial would have undermined and discredited John, the Commonwealth's "star witness."
We agree with Roach that the record neither refutes his allegation that trial counsel did not interview Hugh nor provides any concrete explanation for trial counsel's decision. This alone, however, does not entitle Roach to an evidentiary hearing. "[F]or an evidentiary hearing to be required, the RCr 11.42 motion must show entitlement to relief . . . and raise an issue of fact that is not refuted by the record." Parrish, 272 S.W.3d at 168 (emphasis added). Thus, if the ineffective-assistance allegation, taken as true, would not afford the movant relief under the rule, an evidentiary hearing is not mandated. Newsome v. Commonwealth, 456 S.W.2d 686, 687 (Ky.1970) (explaining "[a]n evidentiary hearing [on an RCr 11.42 motion] is not required . . . where the allegations are insufficient" to warrant RCr 11.42 relief).
Trial counsel "has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigation unnecessary under all the circumstances[.]" Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct." Id. Trial counsel's investigation need only be "reasonable under all the circumstances" and we apply "a heavy measure of deference to the judgment of counsel." Id.
Here, Roach has alleged that "trial counsel's file indicated an awareness of Hugh Drake and an intention to locate and interview him." Significantly, Roach has not alleged that trial counsel knew or should have known that Hugh possessed exculpatory information vital to Roach's case. In fact, the record indicates Roach himself had no knowledge that John had allegedly confessed to Hugh until Hugh so informed Roach in October 2006, almost one year after Roach's trial. It is certainly easy, blessed with the benefit of hindsight and knowing now the exculpatory information allegedly in Hugh's possession, to fault Roach's trial counsel for not locating and interviewing Hugh. But that is not our inquiry. Instead, our task is "to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669, 104 S. Ct. at 2055. Viewing Roach's argument through this proper lens, we cannot say that trial counsel's decision not to interview Hugh amounts to deficient performance. Again, there is no allegation that trial counsel knew or should have known Hugh had any relevant and possibly exculpatory information pertinent to Roach's case. Hugh was not a known witness to the crime, and was not identified as being present on the night the victim was killed. He is not even Roach's brother. Instead, he is the brother of a witness. To find counsel deficient for failing to interview a witness's family member, without evidence or an allegation of some triggering event which would render such an interview necessary, would result in a snowball effect, possibly opening the door to a multitude of ineffective-assistance claims against defense counsel anytime he or she fails to interview witness family members. We are convinced trial counsel's investigation was "reasonable under all the circumstances." Haight, 41 S.W.3d at 446. Consequently, the circuit court committed no error when it denied Roach's ineffective assistance of counsel claim.
III. CR 60.02
Roach contends that the circuit court abused its discretion in denying his CR 60.02 motion as time-barred. Implicit in his argument is that the circuit court also wrongfully characterized his motion as one coming under CR 60.02(b), and not 60.02(e) or (f). Despite the Appellant's well-written brief and artfully crafted arguments, we are not persuaded.
We review the circuit court's denial of a CR 60.02 motion for an abuse of discretion. Kurtsinger v. Bd. of Trustees of Kentucky Ret. Sys., 90 S.W.3d 454, 456 (Ky. 2002). To amount to an abuse of discretion, the circuit court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," we will affirm the circuit court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
CR 60.02 provides several mechanisms by which relief from a final judgment may be achieved. The rule may be invoked in six particular instances: "(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence; (c) perjury or falsified evidence; (d) fraud affecting the proceedings; (e) the judgment is void; or (f) any other reason of an extraordinary nature justifying relief." Kurtsinger, 90 S.W.3d at 456. A motion based on subsections (a), (b), or (c) must be filed within one year of the judgment; all other motions under the rule must be made "within a reasonable time[.]" Sanders v. Commonwealth, 339 S.W.3d 427, 436 (Ky. 2011) (quoting CR 60.02).
Before this Court, as he did before the circuit court, Roach identifies his ground for relief as newly discovered evidence. Newly discovered evidence is specifically identified by CR 60.02(b) as a ground for relief. However, to avoid the one-year limitation for bringing such a motion, Roach bases his claim on CR 60.02(e) and (f). Neither subsection applies.
CR 60.02(f) aims "to provide relief where the reasons for the relief are of an extraordinary nature." U.S. Bank, N.A. v. Hasty, 232 S.W.3d 536, 541 (Ky. App. 2007) (citation omitted). CR 60.02(f) is the "catch-all" provision of CR 60.02 and allows a party to request relief from a judgment based on "any other reason of an extraordinary nature justifying relief." Relief under CR 60.02(f) is only available if "none of that rule's [other] specific provisions applies." Snodgrass v. Snodgrass, 297 S.W.3d 878, 884 (Ky. App. 2009) (quoting Alliant Hospitals, Inc. v. Benham, 105 S.W.3d 473, 478 (Ky. App. 2003)); Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999) ("60.02(f) is a catch-all provision that encompasses those grounds, which would justify relief pursuant to writ of coram nobis, that are not otherwise set forth in the rule."). "The point is that subsection (f) was not intended to provide a means for evading the strictures of the other subsections." Alliant Hospitals, 105 S.W.3d at 479. Thus, if the asserted ground for relief plainly falls under subsections (a) - (e) of the rule, then the more specific subsection, rather than the more general CR 60.02(f), applies.
Here, the specific subsection, CR 60.02(b) applies; subsection (f) does not. Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009) (claims for newly discovered evidence are reviewable under CR 60.02(b), not CR 60.02(f)).
Subsection (e) is similarly inapplicable. That subsection "provides an avenue by which a party may move the court to relieve it from a judgment, order, or proceeding on the basis that the judgment is void." Soileau v. Bowman, 382 S.W.3d 888, 890 (Ky. App. 2012). The newly discovered evidence in this case, if true, would not automatically render void the judgment against Roach, but instead would only entitle him to a new trial. See CR 60.02; Grundy v. Commonwealth, 400 S.W.3d 752, 755 (Ky. App. 2013) ("[A] void judgment is a legal nullity[.]"); Black's Law Dictionary JUDGMENT (9th ed. 2009) (a void judgment, from its inception, lacks legal force or effect).
The circuit court properly characterized Roach's motion as one under CR 60.02(b). We agree. We also agree that Roach's motion, seeking relief based upon newly discovered evidenced and filed nearly six years after the date his conviction was entered, was filed outside the one-year limitations period and is therefore untimely. Roach readily acknowledges, and correctly so, that CR 60.02(b) does not contain a provision for extending the time limit beyond one year for reasons of newly discovered evidence. (Appellant's Brief at 9). The circuit court did not abuse its discretion when it denied Roach's 60.02 motion as time-barred.
Because we have found Roach's CR 60.02 motion to be time-barred, we need not address his argument(s) pertaining to the substance of that motion.
Finally, Roach claims the circuit court abused its discretion when it denied his CR 60.02 motion without first conducting an evidentiary hearing. An evidentiary hearing, while often requested by a CR 60.02 movant, is not always warranted. Indeed, "[b]efore [a] movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Gross, 648 S.W.2d at 856. It was readily apparent to the circuit court, as it is to this Court, that Roach's CR 60.02 motion was filed outside the one-year limitations period. No evidentiary hearing was needed or warranted.
IV. Conclusion
We affirm the June 30, 2011 and March 5, 2012 orders of the Jefferson Circuit Court.
STUMBO, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Katherine M. Dittmeier Holm
Assistant Public Advocate
LaGrange, Kentucky
BRIEFS FOR APPELLEE: Jack Conway
Attorney General
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky