Opinion
2024-CA-0167-MR
10-25-2024
CECIL SALYERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Cecil Salyers, pro se La Grange, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Todd Dryden Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT HONORABLE CHRISTOPHER B. OGLESBY, JUDGE ACTION NO. 11-CR-00249 & 12-CR-00111
BRIEF FOR APPELLANT: Cecil Salyers, pro se La Grange, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Todd Dryden Ferguson Assistant Attorney General Frankfort, Kentucky
BEFORE: CETRULO, L. JONES, MCNEILL, JUDGES.
OPINION
JONES, L., JUDGE
Cecil Salyers ("Salyers"), proceeding pro se, appeals the January 12, 2024, order of the Hopkins Circuit Court denying his request for postconviction relief pursuant to CR 60.02 as impermissibly successive and untimely. Finding no error, we affirm.
Kentucky Rule of Civil Procedure.
This is not Salyers's first collateral attack upon his sentence. His prior attempts at direct appeal and post-conviction relief were summarized by a prior panel of this Court:
Salyers was convicted of four counts of first-degree sexual abuse; two counts of using a minor in a sexual performance; and third-degree unlawful transaction with a minor. He was sentenced to forty years' imprisonment. On direct appeal, the Supreme Court of Kentucky affirmed his conviction. Salyers v. Commonwealth, No. 2014-SC-000186-MR, 2015 WL 2340368 (Ky. May 14, 2015).
Salyers has challenged his conviction in four separate post-conviction motions. First, on November 12, 2015, Salyers filed a pro se RCr 11.42, which the trial court denied on February 1, 2017. On January 10, 2020, this Court affirmed the trial court's denial of the motion.
Second, on April 26, 2018, Salyers filed a motion to vacate his judgment under CR 60.02. The Commonwealth responded, and the trial court denied the motion. Salyers did not appeal the trial court's order.
Third, on May 8, 2020, Salyers filed a second CR 60.02 motion raising thirteen issues. The Commonwealth responded. The trial court denied the motion, finding, among other things, it was barred as a second CR 60.02 motion. Although Salyers attempted a belated appeal, this Court dismissed it.
Finally, on July 2, 2021, Salyers filed his third CR 60.02 motion, raising the same thirteen issues in his second CR 60.02 motion. The Commonwealth responded. The trial court denied Salyers' motion finding it was procedurally
barred for several reasons, including that it was successive and time barred.Salyers v. Commonwealth, No. 2021-CA-1082-MR, 2022 WL 15526551 (Ky. App. Oct. 28, 2022) (footnote omitted). This Court affirmed the trial court's order in Salyers, agreeing with the trial court that Salyers's July 2, 2021, post-conviction motion was an improper, successive motion. Id.
Kentucky Rules of Criminal Procedure.
Undeterred, Salyers filed a new CR 60.02 motion on December 20, 2023. In this new motion, Salyers alleged one of the law enforcement officers involved in the criminal investigation committed acts of fraud which led to his conviction. On January 12, 2024, the trial court entered an order denying that motion finding that "[Salyers's] current CR 60.02 Motion [is] impermissibly successive and not filed within a reasonable time." We agree.
This Court will review denial of CR 60.02 motion for abuse of discretion. Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). "The test for abuse of discretion is whether the trial judge's decision was unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
"CR 60.02 does not permit successive post-judgment motions[.]" Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014). Whether or not Salyers's December 20, 2023, CR 60.02 motion raises new issues or simply addresses other issues is of no moment; "CR 60.02 was never meant to be used as just another vehicle to revisit issues that should have been included or could have been included in prior requests for relief." Id. Thus, Salyers's December 20, 2023, CR 60.02 motion is just as procedurally barred as his prior CR 60.02
Salyers appears to admit in his December 20, 2023, motion that this issue has been addressed before in at least some form:
Now as we move on to the real issue of [Salyers's] case, it has been determined that the Lead Detective in [this] case, Officer Scott [Gipson] of the Madisonville Police Department is under investigation for timecard fraud. This is new to everyone except [Salyers] himself; [Salyers] has been trying to explain this was taking place from the time he filed his first CR.60.02. (sic)(Emphasis added.)
Motion. We agree with the trial court that the December 20, 2023, motion was impermissibly successive.
While the trial court briefly addressed the timeliness of Salyers's claims in his CR 60.02 motion (and the Commonwealth more fully discussed the timeliness issue in its brief), we need not address those grounds as successiveness alone was sufficient reason for the trial court to deny the motion.
For the foregoing reasons, we AFFIRM the order of the Hopkins Circuit Court.
ALL CONCUR.