Opinion
NO. 2017-CA-001792-MR
03-22-2019
ROBERT SHELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Michael J. Curtis Ashland, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, SPECIAL JUDGE
ACTION NO. 04-CR-00029 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; L. THOMPSON, JUDGE; AND HENRY, SPECIAL JUDGE. HENRY, SPECIAL JUDGE: Robert Shelton appeals from the Greenup Circuit Court's order denying his motion to set aside, correct, or amend judgment pursuant to CR 60.02, entered October 12, 2017. We affirm the circuit court's judgment.
Special Judge Michael L. Henry sitting by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Kentucky Rules of Civil Procedure.
In the early morning hours of January 1, 2004, following a New Year's Eve party, Shelton engaged in a heated argument with his uncle, Darrell Shelton, at Darrell's home in rural Greenup County. Shelton left Darrell's home and returned fifteen minutes later with an AK-47 assault rifle. Shelton circled Darrell's home, firing between fifty and seventy rounds into the building. Finally, he entered the home and shot Darrell several times through the door of his bedroom. Darrell's companion, Kay Harman, was hiding in the bedroom closet. She heard Shelton enter the bedroom and tell Darrell, "Take this pretty boy," before shooting him again.
Following Shelton's arrest, the Greenup County grand jury indicted him for Darrell's murder, first-degree burglary, the attempted murder of Ms. Harman, and first-degree criminal mischief. The Commonwealth provided notification of its intent to seek the death penalty. Shelton subsequently negotiated a guilty plea with the Commonwealth, which included an Alford plea to the attempted murder of Ms. Harmon. In exchange, the Commonwealth agreed to recommend a concurrent sentence of life without the possibility of parole for twenty-five years for the murder charge, two terms of twenty years' imprisonment on the burglary and attempted murder charges, and five years' imprisonment on the criminal mischief charge. After a thorough plea colloquy, the Greenup Circuit Court entered final judgment and sentenced Shelton in accordance with the negotiated guilty plea. The court entered its final judgment and sentence of imprisonment on November 3, 2005.
Kentucky Revised Statutes (KRS) 507.020, a capital offense.
KRS 511.020, a Class B felony.
KRS 507.020. The criminal attempt statute, KRS 506.010, assigns a lesser degree of culpability for attempts than for completed offenses. Murder, a capital offense upon completion, is punishable as a Class B felony under KRS 506.010(4)(b).
KRS 512.020, a Class D felony.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). An Alford plea "permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence." Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004). "The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty." Id. at 102 (internal quotation marks omitted).
The record reflects no further activity in Shelton's case until March 19, 2012, when he moved the circuit court to set aside his guilty plea pursuant to CR 60.02(e) and (f), alleging ineffective assistance of trial counsel. Shelton alleged, inter alia, his trial counsel failed to investigate his case, failed to retain experts on his behalf, and failed to explain Shelton's possible defenses to him. Additionally, Shelton contended his trial counsel suffered from a drug addiction, which impaired his judgment during the course of his representation. The circuit court held an evidentiary hearing before denying Shelton's motion in a detailed, thirty-seven-page order, entered October 12, 2017. This appeal followed.
The current appeal stems from the circuit court's denial of a CR 60.02 motion. "We review the denial of a CR 60.02 motion for an abuse of discretion." Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The burden of proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (citations and internal quotation marks omitted). "[W]e will affirm the lower court's decision unless there is a showing of some 'flagrant miscarriage of justice.'" Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
Shelton contends the circuit court erroneously denied his CR 60.02 motion and maintains his trial counsel was so ineffective as to not function as counsel guaranteed by the Sixth Amendment of the United States Constitution, as described in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). In its order, the circuit court found Shelton's motion was procedurally improper, untimely, and lacking merit. We agree with the circuit court's reasoning as to the first two matters; therefore, we need not consider Shelton's issues on the merits.
The circuit court found Shelton's CR 60.02 motion to be procedurally barred, because the claims asserted should have been brought in a motion pursuant to RCr 11.42. We agree.
Kentucky Rules of Criminal Procedure.
The interrelationship between CR 60.02 and RCr 11.42 was carefully delineated in Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983). In a criminal case, these rules are not overlapping, but separate and distinct. A defendant who is in custody under sentence or on probation, parole or conditional discharge, is required to avail himself of RCr 11.42 as to any ground of which he is aware, or should be aware, during the period when the remedy is available to him. Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could "reasonably have been presented" by direct appeal or RCr 11.42 proceedings.McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). All of Shelton's claims assert ineffective assistance of counsel. All of Shelton's claims were known to him or should have been known to him at sentencing or shortly thereafter. All of Shelton's claims should have been asserted in a timely RCr 11.42 motion. "CR 60.02 is not intended to provide relief for grounds that could be attacked through direct appeals or collateral motions such as grounds under RCr 11.42." Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017). The circuit court did not err in finding Shelton's RCr 11.42 motion masquerading as a CR 60.02 motion to be procedurally improper.
Next, the circuit court found Shelton's CR 60.02 motion untimely. CR 60.02 provides, in relevant part, that motions under the Rule "shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order or proceeding was entered or taken." Shelton specified CR 60.02(e) and (f) as grounds for relief, meaning he was required to bring his motion within "a reasonable time." "What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross, 648 S.W.2d at 858. In Gross, the Supreme Court of Kentucky affirmed a trial court's denial of a CR 60.02 motion as untimely when filed five years post-judgment. Id. Similarly, a panel of this court has reasoned, albeit in dicta, that denial of a CR 60.02 motion filed four years post-judgment would be within a trial court's discretion. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007). Here, Shelton filed his CR 60.02 motion over six years post-judgment. The circuit court did not abuse its discretion in finding Shelton's motion untimely.
For the foregoing reasons, we affirm the Greenup Circuit Court's order denying relief pursuant to CR 60.02.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael J. Curtis
Ashland, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky