Opinion
NO. 2011-CA-000859-MR
07-13-2012
DAMIEN A. SUBLETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Damien A. Sublett, pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NOS. 03-CR-002331 AND 03-CR-003202
OPINION
AFFIRMING
BEFORE: TAYLOR, CLAYTON AND MAZE, JUDGES. MAZE, JUDGE: Damien A. Sublett appeals from a Jefferson Circuit Court opinion and order denying his motion to vacate or set aside judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e). Sublett argues that the trial court erred in applying the wrong legal standard in denying an earlier motion he made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Because Sublett could have raised these arguments in an appeal of the denial of the RCr 11.42 motion, we affirm.
Sublett entered a plea of guilty to twenty-two counts of first-degree robbery and to being a first-degree persistent felony offender, conditioned on his right to appeal the trial court's denial of his motions to suppress statements and evidence. He received a twenty-five-year prison sentence. The Kentucky Supreme Court affirmed his convictions on direct appeal. See Sublett v. Commonwealth, 203 S.W.3d 701 (Ky. 2006).
On May 4, 2009, Sublett filed a pro se motion pursuant to RCr 11.42, raising several claims of ineffective assistance of counsel. On May 29, 2009, the trial court entered an order denying the motion on the grounds that the Kentucky Supreme Court had already ruled on his arguments relating to the suppression of the evidence. As support for its ruling, the trial court cited Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001), overruled on other grounds, for the proposition that any issues raised and rejected on direct appeal may not be relitigated by simply claiming that they amount to ineffective assistance of counsel. Haight, 41 S.W.3d at 441. Of particular significance for the resolution of this present appeal is the fact that Sublett did not appeal from that order of May 29, 2009.
More than eighteen months later, Sublett filed a pro se motion pursuant to CR 60.02(e) seeking to reopen the RCr 11.42 proceeding. The trial court denied the motion and this appeal followed.
We review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). To warrant relief, the trial court's decision must have been "arbitrary, unreasonable, unfair, or unsupported by sound legal principals." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). A movant must demonstrate that "he is entitled to this special, extraordinary relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). We will affirm the trial court's decision absent a "flagrant miscarriage of justice." Id. at 858.
Sublett argues that he is entitled to CR 60.02 relief because his RCr 11.42 motion was wrongly denied in reliance on Haight, an opinion whose holding has been overruled. In Leonard v. Commonwealth, 279 S.W.3d 151(Ky. 2009), the Kentucky Supreme Court expressly adopted the holding of Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006), which
recognized the difference between an alleged error and a separate collateral claim of ineffective assistance of counsel related to the alleged error, and held that a claim of the latter may be maintained even after the former has been addressed on direct appeal, so long as they are actually different issues.Leonard, 279 S.W.3d at 158. The Court held that to the extent that numerous cases, including Haight, hold otherwise and thus contradict Martin, they are overruled. Id. at 159.
The Leonard opinion became final on January 22, 2009, more than three months before Sublett filed his RCr 11.42 motion, and four months before the entry of the trial court's order denying the motion. Sublett had every opportunity to raise his argument regarding the trial court's allegedly improper reliance on Haight, either in a motion to alter, amend or vacate, or in a direct appeal of the order denying the motion.
"The structure provided in Kentucky for attacking the final judgment of the trial court in a criminal case is not haphazard and overlapping, but is organized and complete. . . . [CR 60.02] is for relief that is not available by direct appeal and not available under RCr 11.42." Gross, 648 S.W.2d at 856. The final resolution of an RCr 11.42 motion "forecloses the defendant from raising any questions under CR 60.02 which are 'issues that could reasonably have been presented' by RCr 11.42 proceedings." Id. at 857. Because Sublett could reasonably have presented his arguments regarding the trial court's reliance on Haight in the earlier proceedings, he is procedurally barred from raising them in a CR 60.02 motion. His other arguments alleging ineffective assistance of counsel are not cognizable in a CR 60.02 proceeding because they were, or could have been, raised in his RCr 11.42 motion. "(W)e should not afford the defendant a second bite at the apple." Id.
Sublett's reliance on Bowman v. Commonwealth, 2010 WL 1814811 (Ky. App. 2010) (2007-CA-000993-MR) is misplaced because the facts of that case are entirely distinguishable. Bowman filed a direct appeal of the denial of his RCr 11.42 motion. This Court affirmed, but then, on discretionary review, the Supreme Court remanded the case for reconsideration of Bowman's arguments in light of Leonard. By contrast, Sublett failed to file a direct appeal of the denial of his RCr 11.42 motion. He cannot be allowed to file what is in effect a subsequent RCr 11.42 motion. "If such a procedure were allowed there would be no end to the successive applications for post-conviction relief." Lycans v. Commonwealth, 511 S.W.2d 232, 233 (Ky. 1974).
For the foregoing reasons, we affirm the opinion and order of the Jefferson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Damien A. Sublett, pro se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky