Opinion
NO. 2016-CA-000149-MR
01-13-2017
LARRY R. SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Larry R. Smith, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 98-CR-00374 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE AND STUMBO, JUDGES. COMBS, JUDGE: Larry R. Smith appeals from the Fayette Circuit Court's order of January 11, 2016, denying his motion to vacate sentence pursuant to CR 60.02. After our review, we affirm.
Kentucky Rules of Civil Procedure.
In a jury trial held on August 31, 1998, Larry R. Smith was found guilty of two counts of incest (KRS 530.020) and of being a second-degree persistent felony offender (PFO) (KRS 532.080). The jury fixed Smith's sentence at two terms of twelve and one-half years each. The trial court entered its final judgment on October 20, 1998, sentencing Smith to a total of twenty-five years' imprisonment pursuant to the jury's verdict. The Supreme Court of Kentucky upheld Smith's conviction on direct appeal in an unpublished opinion rendered August 26, 1999.
Kentucky Revised Statutes.
98-SC-0936-MR.
Smith has extensively litigated his case ever since his conviction. The Fayette Circuit Court denied his motion to vacate sentence pursuant to RCr 11.42 on October 3, 2001, and it also denied his CR 60.02 motion for concurrent sentencing on November 8, 2001. The circuit court was affirmed on both denials by a panel of this Court in a consolidated appeal. In the meantime, however, Smith, pro se, filed another CR 60.02 motion in which he contested the constitutionality of the PFO statute. The circuit court denied that motion on March 26, 2002. Smith, pro se, filed another CR 60.02 motion on a variety of issues, which was also denied by the circuit court on October 27, 2003. In its denial, the circuit court noted that the CR 60.02 motion was successive. Smith, pro se, then filed a motion under CR 61.02 attacking his indictment, which the circuit court denied on March 16, 2005. Pro se, he then filed another motion for a new trial under RCr 10.26 and CR 61.02 in which he alleged substantial error. The circuit court denied the motion in an order entered on August 22, 2005. Smith, pro se, filed another motion to vacate pursuant to RCr 10.26 and CR 61.02, which was denied by the circuit court and was appealed to a panel of this Court. We affirmed the circuit court in an unpublished opinion.
Much of the following procedural history is adapted from a previous unpublished opinion relating to the appellant's case, Smith v. Commonwealth, No. 2006-CA-000945-MR, 2007 WL 2343766 (Ky. App. Aug. 17, 2007).
Kentucky Rules of Criminal Procedure.
Smith v. Commonwealth, Nos. 2001-CA-002781-MR & 2001-CA-002783-MR, 2003 WL 21714590 (Ky. App. July 25, 2003).
Smith v. Commonwealth, No. 2006-CA-000945-MR, 2007 WL 2343766 (Ky. App. Aug. 17, 2007).
With respect to the subject of the present appeal, on January 6, 2016, Smith, pro se, filed another CR 60.02 motion on grounds alleging that his conviction violates the constitutional prohibition against double jeopardy. That motion was denied by the circuit court on January 11, 2016. This appeal follows.
"The Fifth Amendment prohibition against double jeopardy applies to the states via the Due Process clause of the Fourteenth Amendment." Keeling v. Commonwealth, 381 S.W.3d 248, 257 n.10 (Ky. 2012) (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)).
Smith contends that his convictions on two counts of incest amounted to two convictions for the same offense. The circuit court found that indictments charging multiple counts of incest did not result in a double jeopardy violation pursuant to Johnson v. Commonwealth, 292 S.W.3d 889 (Ky. 2009). Johnson held that incest was not a crime with a durational requirement constituting a "continuing course of conduct" but that each act of sexual intercourse represents a separate offense for which a defendant may be charged and convicted. Id. at 896.
KRS 505.020. --------
We concur with the circuit court's analysis on the double jeopardy issue, and we also agree with the Commonwealth that Smith's arguments are procedurally barred. Motions under CR 60.02 must be filed in a timely fashion in order to be considered. CR 60.02 states that a motion pursuant to 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." "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 v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). 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. 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 subject to the discretion of the trial court. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007). In the case before us, the CR 60.02 motion was filed more than seventeen years post-judgment -- far beyond the point of being merely "untimely."
Furthermore, "[CR 60.02] is not intended as merely an additional opportunity to raise claims which could and should have been raised in prior proceedings, but, rather, 'is for relief that is not available by direct appeal and not available under RCr 11.42.'" Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting Gross, 648 S.W.2d at 856). "Our rules of civil procedure do not permit successive motions or the relitigation of issues which could have been raised in prior proceedings." Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009). To summarize, the CR 60.02 motion before us is untimely, successive, and unmeritorious.
We affirm the order of January 11, 2016, of the Fayette Circuit Court denying relief.
ALL CONCUR. BRIEF FOR APPELLANT: Larry R. Smith, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky