Opinion
NO. 2017-CA-001754-MR
12-21-2018
WILLIE J. STEWART APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Willie J. Stewart, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 84-CR-00501 OPINION
AFFIRMING
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BEFORE: COMBS, SMALLWOOD, AND TAYLOR, JUDGES. COMBS, JUDGE: Willie J. Stewart, pro se, appeals from an order of the Warren Circuit Court denying his CR 60.02 motion for post-conviction relief. After our review, we affirm.
Judge Gene Smallwood concurred in this opinion prior to the expiration of his term of office. Release of the opinion was delayed by administrative handling.
Kentucky Rules of Civil Procedure.
On October 30, 1984, Stewart was convicted of four counts of first-degree rape and four counts of second-degree rape. He received a sentence of four concurrent life sentences and four concurrent ten-year sentences. His convictions were upheld on direct appeal. In the years following his direct appeal, Stewart has unsuccessfully filed multiple motions for post-conviction relief under RCr 11.42, CR 60.02, and CR 60.03. Now, Stewart has once again moved for post-conviction relief under CR 60.02(f). The trial court denied his motion on October 9, 2017. This appeal followed.
Kentucky Rules of Criminal Procedure.
Stewart contends that the trial court erred in denying his motion because the court failed to follow the statutory presentencing procedures at the time of sentencing. Specifically, he argues that a comprehensive sex offender evaluation should have been conducted prior to sentencing and that the evaluation should have been included in the PSI report in accordance with KRS 532.050(4). In opposition, the Commonwealth contends that the trial court appropriately denied Stewart's motion for post-conviction relief because it is procedurally barred.
Kentucky Revised Statutes. --------
A trial court's denial of a CR 60.02 motion is reviewed for abuse of discretion. Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Pursuant to CR 60.02(f), relief may be granted for "any other reason of an extraordinary nature justifying relief." Such relief is only available to correct a substantial miscarriage of justice. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). The motion for relief must be made within a reasonable time. Id.; CR 60.02.
We agree with the Commonwealth that Stewart is precluded from invoking relief pursuant to CR 60.02. First, Stewart's motion is not timely. Since final sentencing occurred in this case, thirty-four years have passed -- deemed not to be a reasonable time as required by CR 60.02. Stewart provides no explanation for this delay.
Second, Stewart has filed multiple motions for post-conviction relief over the last three decades. Successive motions for post-conviction relief are procedurally improper.
CR 60.02 does not permit successive post-judgment motions, and the rule may be utilized only in extraordinary situations when relief is not available on direct appeal or under RCr 11.42. That is, CR 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 an RCr 11.42 proceeding.Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014) (internal citations omitted).
Stewart claims that the trial court did not follow the statutory sentencing procedures in 1984. However, this claim should have been raised in Stewart's direct appeal or in his previous motions for post-conviction relief, and he fails to include any viable reason as to why he did not raise this issue earlier. There is nothing legally extraordinary about his claim warranting our review for relief.
In fact, a review of the record reveals that Stewart did raise this precise issue of non-compliance with KRS 532.050(4) in a previous CR 60.02 motion. In Stewart v. Commonwealth, No. 2010-CA-000300-MR, 2011 WL 1565422 *3 (Ky. App. April 22, 2011), we found Stewart's claims to be meritless and stated that:
contrary to Stewart's assertions, the record shows that a presentence investigation was done, the trial court considered it (after Stewart's counsel mentioned it), and counsel said that there was nothing in the report that he wished to controvert.We may not review the merits of his claim for a second time.
Furthermore, in the trial court's orders entered February 9, 1995, and July 13, 1998, Stewart has previously been informed that successive post-conviction motions are not permitted where the issues asserted could have been raised in prior motions. Stewart is well aware of this rule at this point. We now remind Stewart that the court's leniency given to parties proceeding pro se is not boundless. Caldwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011). Thus, the trial court did not abuse its discretion in denying Stewart's motion.
Accordingly, we affirm the judgment of the Warren Circuit Court denying Stewart's CR 60.02 motion for post-conviction relief.
ALL CONCUR. BRIEF FOR APPELLANT: Willie J. Stewart, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky