Opinion
NO. 2013-CA-001640-MR
10-10-2014
STEELY THACKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steely Thacker, Pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT COSTANZO, JUDGE
ACTION NO. 80-CR-00052
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND TAYLOR, JUDGES. CAPERTON, JUDGE: The Appellant, Steely Thacker, is currently serving three life sentences for murder. He appeals the August 29, 2013, order of the Bell Circuit Court denying his successive Kentucky Rules of Civil Procedure (CR) 60.02 motion for a new trial. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Thacker was indicted and tried for three murders which occurred in 1980. The circumstances of those crimes were summarized by our Kentucky Supreme Court as follows:
Steely Thacker was convicted for the murders of Connie Bolton, Vonna Gail Baird, and Andrew Maiden, and sentenced to life imprisonment. The mainstay of the Commonwealth's case against the Appellant was an eyewitness, Johnny Mazingo. Mazingo testified that he, the three victims, and the Appellant, were drinking at A.C. Hamblen's bar in Clairefield, Tennessee on the night of February 29, 1980. Appellant consented to [give] the four of them a ride to a friend's house, but upon his request, they instead accompanied Appellant to his house trailer in order to have some beer. After the group had been at Appellant's trailer for half an hour or so, Appellant indicated that he wanted to have sex with either of the two girls. Maiden became upset and wanted to leave, but Appellant refused to drive him to his car. When Maiden persisted, Appellant drew an eight-shot automatic .380 caliber pistol, and told Maiden than [sic] he would shoot him if he attempted to leave. Apparently the disagreement escalated, and Appellant shot Maiden three times. Appellant then unloaded his gun on Mazingo and the two women. After reloading his gun, Appellant continued shooting until he had convinced himself that everyone was dead. However, Mazingo was still alive. Thinking that Mazingo was dead, Appellant and his brother loaded him and the three others into a pickup truck. Mazingo managed to roll out of the truck about a mile from Appellant's trailer and crawled to the home of Michael Partin. As he entered the trailer, more shots were fired at him by Appellant's brother, Ralph. The bodies of the three murder victims were found at a strip mine on March 7, 1980.
The final judgment of conviction was entered on March 2, 1980. Following Thacker's conviction, he appealed as a matter of right. In that appeal, Thacker raised two issues: (1) Error in the admission of certain evidence, and (2) Failure to instruct on manslaughter in the first degree for extreme emotional disturbance (EED). On October 13, 1981, the Kentucky Supreme Court issued a unanimous opinion affirming Thacker's convictions.
In relation to the issue of EED, the Kentucky Supreme Court stated, "There is no evidence in this record which illustrates that appellant may have been operating under extreme emotional disturbance."
Following the affirmation of his convictions, Thacker began filing a series of post-conviction motions. On October 29, 1984, Thacker filed a motion to vacate pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. He alleged ineffective assistance of counsel for failing to request a competency hearing and argued that there was insufficient evidence to support a conviction. That motion was denied on March 27, 1985. Thacker appealed that denial, and on June 26, 1986, this Court issued an opinion affirming the denial. Subsequently, on August 26, 1998, Thacker filed a motion to suspend further execution of his sentence. That motion was denied by the trial court. Thereafter, on December 18, 2003, Thacker filed a motion for modification of his sentence, asserting among other things that he had changed his life. That motion was also denied.
Thacker then filed a December 2, 2005, motion pursuant to CR 60.02 requesting that his convictions be set aside. In that motion, Thacker essentially argued ineffective assistance of counsel, asserting: (1) Counsel did not assert EED as a defense at trial; (2) Counsel did not investigate; (3) Counsel did not seek a mental evaluation of Thacker; (4) Counsel did not secure expert testimony; (5) Counsel failed to move to a mistrial after prejudicial photographs were admitted; (6) Counsel did not seek DNA testing; (7) Counsel did not obtain all discoverable materials; and (8) Counsel did not oppose a mistrial after Thacker's first trial ended in a hung jury.
On December 28, 2005, the Bell Circuit Court entered an order denying Thacker's CR 60.02 motion. In so doing, the court concluded:
The Court has reviewed the Defendant's motion and finds that it raises issues identical to those previously determined by the Kentucky Supreme Court in the appeal of the defendant's conviction. Additionally, the motion alleges ineffective assistance of counsel. Rule 60.02 cannot be used as a back door to sneak an 11.42 motion into the record. The time limit has long expired for an 11.42 motion. The facts alleged in the motion were all known at the time of trial and no fundamental constitutional right has been recognized or asserted since Defendant's conviction that would permit him to proceed under RCr 11.42.Following the denial, Thacker filed a motion for CR 59.05 review and a motion to have his CR 60.02 motion converted into an RCr 11.42 motion. Those motions were also denied.
Thacker then appealed the denial of his CR 60.02 motion to this Court. On June 1, 2007, this Court rendered an opinion affirming the decision of the Bell Circuit Court on June 1, 2007. In so doing, this Court concluded that Thacker's CR 60.02 motion was procedurally barred because all of the issues raised could have been raised in a prior proceeding. The Kentucky Supreme Court declined to grant discretionary review.
Thereafter, on May 10, 2013, Thacker began filing the motions that would eventually become the subject of this appeal. He filed a motion for a new trial pursuant to RCr 10.02, a second motion pursuant to CR 60.02, as well as a supplemental CR 60.02 motion. The Bell Circuit Court entered an order denying the CR 60.02 motion on August 29, 2013. In so doing, the trial court found that Thacker's CR 60.02 motion was untimely; procedurally barred, as the issues could have been raised in another proceedings; and finally, that it failed on the merits. It is from that order that Thacker now appeals to this Court.
We note that on appeal, Thacker only presents arguments concerning his CR 60.02 motion and does not advance his RCr 10.02 arguments. Accordingly, we consider those arguments waived and decline to address that motion further herein.
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Prior to reviewing the arguments of the parties, we note that a trial court's denial of a petitioner's CR 60.02 motion will only be disturbed on appeal by a showing that the court abused its discretion. Bethlehem Minerals Co. v. Church and Mullins Corp., 887 S.W.2d 327 (Ky. 1994). 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).
On appeal, Thacker argues that the circuit court abused its discretion when it denied his CR 60.02 motion, and that the motion should have been granted because he presented facts and evidence of an extraordinary nature justifying relief. Thacker discusses the defense of extreme emotional disturbance, and argues that the circumstances surrounding the crimes at issue support his assertion of this defense. He also argues that he was factually innocent, and finally, that the court abused its discretion in violation of ex post facto law by misconstruing Kentucky Revised Statutes 507.020.
In response, the Commonwealth argues that all of the issues raised by Thacker in the instant appeal are not properly before this Court since they should have been raised in his direct appeal or through prior collateral attacks, and further, that Thacker's CR 60.02 motion is untimely and should accordingly be dismissed.
Upon review of the record, the arguments of the parties, and the applicable law, we are in agreement with the Commonwealth and the court below that the claims which Thacker asserts herein could have, and should have, been raised in a direct appeal or in an RCr 11.42 motion, and are not the proper subject matter for a CR 60.02 motion. Thacker's second CR 60.02 motion asserted that error occurred in the denial of his motion for directed verdict, that he was factually innocent, and that the court failed to give a directed verdict on the grounds of EED, which Thacker asserts was warranted. We are in agreement with both the Commonwealth and the court below that each of these grounds could have been brought to the court's attention in a direct appeal, or in an RCr 11.42 motion, or in a prior CR 60.02 motion, all of which Thacker filed, and all of which were denied.
As we have repeatedly held, a CR 60.02 motion is not a substitute for an appeal. Cinnamon v. Commonwealth, 455 S.W.2d 583 (Ky. 1970). Indeed, CR 60.02 is: "[N]ot a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." McQueen v. Commonwealth, 948 S.W.2d 415 (Ky. 1997). Finding that Thacker has had ample opportunities to advance the issues now presented on appeal, we believe that the court below appropriately denied his request to relitigate these issues again.
In so finding, we note the clear language of CR 60.02, which states that:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion 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. A motion under this rule does not affect the finality of a judgment or suspend its operation.Clearly, motions made pursuant to CR 60.02 must be "made within a reasonable time." In this case, the final judgment was entered against Thacker on March 2, 1981. His second CR 60.02 motion was brought approximately 32 years thereafter. Upon review of the record, we find no newly discovered evidence or any other reason of an extraordinary nature which would justify presentation of a successive CR 60.02 motion more than 30 years after Thacker's conviction. Accordingly, we affirm.
Wherefore, for the foregoing reasons, we hereby affirm the August 29, 2013, order of the Bell Circuit Court denying Thacker's CR 60.02 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Steely Thacker, Pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky