Opinion
NO. 2016-CA-000606-MR
06-02-2017
JOHN TURNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John Turner, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 72-CR-15946 OPINION
AFFIRMING
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BEFORE: DIXON, JOHNSON, AND MAZE, JUDGES. MAZE, JUDGE: John Turner appeals from an order of the Kenton Circuit Court denying his Motion for Relief filed pursuant to CR 60.02. We affirm.
Kentucky Rules of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
On February 3, 1972, John Turner, who was 17 years-old at the time, entered a woman's restroom at the YWCA, crawled under the door of the bathroom cubicle, and dragged his victim out of the cubicle while holding a knife to her throat. He then proceeded to rape, rob, and stab her in the stomach before exiting the restroom. Turner's victim survived the incident, and based on her description of the assailant, the police arrested Turner. She later identified Turner as her attacker, and he was subsequently charged as a juvenile and transferred for further proceedings as an adult.
On April 12, 1972, a Kenton County grand jury indicted Turner under Indictment No. 15946 on one count of forcible rape (then existing as KRS 439.090) and armed robbery (then existing as KRS 433.140) relating to the rape of the victim. Turner received appointed counsel, and on June 27, 1972, he entered a plea of guilty to forcible rape pursuant to a recommendation of the Commonwealth for a sentence of life in prison. As part of the plea, Turner signed a "Waiver of Further Proceeding Upon Arraignment, with Petition to Enter Guilty Plea," which stated the following: "Guilty to the charge of rape. I understand I could have a jury set my punishment at less than life or even death but I waive the jury and agree that the court may sentence me to life without a jury." The next day, the circuit court entered an Order and Judgment finding Turner guilty of forcible rape with the count of armed robbery having been "filed away" or dismissed, and sentenced him to life in prison consistent with the Commonwealth's recommendation.
Kentucky Revised Statutes.
Shortly thereafter, Turner began filing challenges to his plea and sentence. Between August 1972 and October 2014, Turner filed at least six post-conviction motions asserting various theories and authorities for relief, including one motion pursuant to RCr 11.42 and two pursuant to CR 60.02. Though the various trial courts granted Turner hearings on some of these motions, they ultimately overruled all of Turner's motions.
Kentucky Rules of Criminal Procedure. --------
On September 8, 2015, Turner filed a Motion to Set Aside, Vacate or Correct Sentence pursuant to CR 60.02, the subject of this appeal. In the motion, he contended that his guilty plea was involuntary and counsel was ineffective because he felt compelled to accept the plea offer of life in prison after his attorney advised him that he likely would be sentenced to death or life without parole at trial. He also alleged the life sentence constitutes cruel and unusual punishment given the reduction in sentences applicable to juveniles under current jurisprudence. On April 1, 2016, the circuit court overruled the motion because it was untimely and offered no new evidence or grounds to justify relief. This appeal followed.
STANDARD OF REVIEW
The standard of review concerning a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996); White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "The test for abuse of discretion is whether the judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," the order of the circuit court should be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
ANALYSIS
The circuit court overruled Turner's CR 60.02 motion on several procedural grounds. The court first held that the motion was untimely. A motion to vacate under CR 60.02(e) and (f) must be made within a "reasonable time." Determining "[w]hat constitutes a reasonable time . . . under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross, 648 S.W.2d at 858. A circuit court is not required to conduct an evidentiary hearing if it appears on the face of the record that the CR 60.02 motion was not filed within a "reasonable time." Id. Further, the trial judge may properly consider, in granting or denying a CR 60.02 motion, whether the passage of time between judgment and the motion was reasonable in light of the fading memories of witnesses. Harris v. Commonwealth, 296 S.W.2d 700 (Ky. 1956); Gross at 858.
Turner filed the underlying CR 60.02 motion more than forty-three years after the judgment was entered. Given this fact, the trial court's finding that Turner failed to move for CR 60.02 relief within a "reasonable time" was not an abuse of its discretion. See Baze v. Commonwealth, 276 S.W.3d 761, 768 (Ky. 2008) (holding that defendant's CR 60.02 motion filed approximately fourteen years after trial was unreasonable); Gross, 648 S.W.2d at 858 (holding that the trial court did not abuse its discretion by finding that the passage of five years between the final judgment and the CR 60.02 motion exceeded a reasonable time).
The circuit court also indicated that Turner's motion did not present any new evidence or raise any new issue that was not raised in his prior motions, in effect finding that the motion was procedurally barred under the successive motion principle. "The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02." Id. The obvious purpose of this principle is to prevent the relitigation of issues which either were or could have been litigated in a similar proceeding. Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999). Indeed, 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. See Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014); McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). 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 RCr 11.42 proceedings. RCr 11.42(3); Gross, supra at 855, 856.
Turner either did or could have raised issues concerning the voluntary nature of his guilty plea and the advice given him by his trial counsel in his earlier post-judgment proceedings. In his 1973 RCr 11.42 motion, he alleged ineffective assistance of counsel. In the first CR 60.02 motion, he challenged the conviction based on his juvenile status. In his second CR 60.02 motion, he raised the issue of the constitutionality of the range of sentences when he entered his guilty plea. Accordingly, the current, third CR 60.02 motion represents a successive motion that is procedurally barred.
CONCLUSION
For the foregoing reasons, Turner's CR 60.02 motion was procedurally barred, and we do not reach its merits. Accordingly, the April 1, 2016, order of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John Turner, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky