NOT TO BE PUBLISHED
OPINION
MOORE, JUDGE.
Matthew A. Franklin appeals the Hardin Circuit Court's order granting in part and denying in part his motion brought under CR1 60.02. After a careful review of the record, we reverse the circuit court's decision concerning counts fifteen and eighteen of the indictment, as the Commonwealth concedes that Franklin's convictions on both of those counts violates his right against double jeopardy, and we remand that part of the case for further proceedings. The remainder of the circuit court's order is affirmed because Franklin's remaining claims were not properly brought under CR 60.02.
I. FACTUAL AND PROCEDURAL BACKGROUND
Franklin was indicted on twenty-two counts: (a) Counts one through three charged him with first-degree sodomy, Class "A" felonies under KRS2 510.070; (b) Counts four through six charged him with incest, Class "A" felonies under KRS 530.020; (c) Counts seven through nine charged him with first-degree rape, Class "B" felonies under KRS 510.040; (d) Counts ten through twelve charged him with first-degree sodomy, Class "B" felonies because the child was over twelve years old, pursuant to KRS 510.070; (e) Counts thirteen through fifteen charged him with promoting a sexual performance by a minor, Class "B" felonies under KRS 531.320; (f) Counts sixteen through eighteen charged him with use of a minor in a sexual performance, Class "B" felonies under KRS 531.310; (g) Count nineteen charged him with first-degree sexual abuse, a Class "C" felony under KRS 510.110; (h) Counts twenty and twenty-one charged him with first-degree sexual abuse, Class "D" felonies under KRS 510.110; and (i) Count twenty-two charged him with being a first-degree persistent felony offender (PFO 1st) under KRS 532.080.
The Commonwealth made an offer to Franklin on a plea of guilty. The Commonwealth's offer stated in pertinent part, as follows:
Thirty (30) years, to serve, on counts one (1) through eighteen (18); Twenty (20) years, to serve, on count nineteen (19); and Ten (10) years, to serve, on counts twenty (20) and twenty-one (21), with all counts being enhanced by First-Degree Persistent Felony Offender, all to run concurrently, one with the other, for a total of Thirty (30) years, to serve. Fine as set by the Hardin Circuit Court Judge. Franklin moved to enter a guilty plea in accord with the
Commonwealth's offer on a plea of guilty. The circuit court accepted Franklin's guilty plea.
Prior to sentencing, Franklin filed a pro se motion to withdraw his guilty plea, claiming, inter alia, that his attorney had lied to him and misled him into pleading guilty. After reviewing the record and the videotape of Franklin's plea colloquy and after holding a hearing on Franklin's motion to withdraw his guilty plea, the circuit court denied the motion.
The court entered its judgment against Franklin and sentenced him, in pertinent part, as follows:
Thirty (30) years, to serve, on counts one (1) through [e]ighteen (18), with said charges being First-Degree Sodomy, PFO 1st (3 Cts); Incest, PFO 1st (3 Cts); First-Degree Rape, PFO 1st (3 Cts); First-Degree Sodomy, PFO 1st (3 Cts); Promoting a Sexual Performance by a Minor, PFO 1st (3 Cts)[;] and Use of a Minor in a Sexual Performance (3 Cts), PFO 1st[.] Twenty (20) years, to serve, on count nineteen (19), with said charge being, First-Degree Sexual Abuse, PFO 1st[,] and Ten (10) years, to serve, on counts twenty (20) and twenty-one (21), with said charges being, First-Degree Sexual Abuse, PFO 1st, all to run concurrently, one with the other, for a total of Thirty (30) years, to serve, under the custody of the Department of Corrections, to run consecutively to [any] other sentence the Defendant may have or receive from any court proceeding . . . .
(Emphasis removed).
Franklin filed a pro se motion to vacate the circuit court's judgment pursuant to RCr3 11.42, asserting various claims of the ineffective assistance of trial counsel. His motion was denied.
Franklin then filed his CR 60.02 motion in the circuit court, arguing that: (a) the indictment was invalid because it was "multiplicitous in content of the charges contained" therein; (b) his right to the effective assistance of trial counsel was violated because there was a conflict of interest and a breakdown in communications between himself and his defense counsel; (c) his right to the effective assistance of trial counsel was violated when defense counsel refused to file a motion to withdraw the guilty plea on Franklin's behalf and when the circuit court permitted Franklin to represent himself during the hearing on his pro se motion to withdraw his guilty plea; (d) two of the judges committed judicial misconduct during the proceedings prior to the entry of the court's judgment and sentence; and (e) his guilty plea was invalid because he was coerced into entering it.
The circuit court granted the CR 60.02 motion in part and denied it in part, held a hearing for its determination of one issue, and appointed counsel to represent Franklin during that hearing. In the order granting the CR 60.02 motion in part and denying it in part, the circuit court ordered a hearing to be held "to determine the factual basis for, and the distinction between, counts 13 and 14, and counts 16 and 17 of the original indictment in this case." The court also found that Franklin's remaining claims of the "multiplicitous" indictment (i.e., concerning all counts except 13, 14, 16, and 17) lacked merit; that his claim regarding judicial misconduct lacked merit; and that his remaining claims could have and should have been brought in his prior RCr 11.42 motion, rather than in his CR 60.02 motion. Before the hearing was held, the court entered an "Agreed Order to Vacate Guilty Pleas of Counts Thirteen, Fourteen, Sixteen, and Seventeen," and the Commonwealth had no objection to the order. The order resolved all issues for which the hearing had been granted. Specifically, the order provided that counts thirteen and fourteen were vacated because they were duplicates of count fifteen, i.e., promoting a sexual performance by a minor. The order also provided that counts sixteen and seventeen were vacated because they were duplicates of count eighteen, i.e., use of a minor in a sexual performance.
Franklin now appeals, contending that: (a) the circuit court should have conducted an evidentiary hearing regarding all of his CR 60.02 claims; (b) the circuit court should have found that other charges against Franklin, in addition to counts thirteen, fourteen, sixteen, and seventeen, were "multiplicitous"; (c) he received the ineffective assistance of counsel when counsel continued to represent him, despite having a conflict of interest; (d) the trial court judge engaged in judicial misconduct by failing to recuse; and (e) the circuit court erred in finding that Franklin's guilty plea was entered knowingly, voluntarily, and intelligently without first conducting an evidentiary hearing on the issue during the CR 60.02 proceedings. Additionally, in his reply brief on appeal, Franklin alleges that he received the ineffective assistance of appellate counsel on direct appeal and that he received the ineffective assistance of post-conviction counsel during his RCr 11.42 proceedings because he proceeded pro se in his post-conviction proceedings.
II. STANDARD OF REVIEW
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. "A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further allege[s] special circumstances that justify CR 60.02 relief." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (internal quotation marks and citation omitted).
The Kentucky Supreme Court has held that "Civil Rule 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." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks and citation omitted). Civil Rule 60.02 "is not 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." Id.
III. ANALYSIS
A. EVIDENTIARY HEARING
Franklin first contends that the circuit court should have conducted an evidentiary hearing regarding all of his CR 60.02 claims. However, as we previously noted, a "movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further allege[s] special circumstances that justify CR 60.02 relief." White, 32 S.W.3d at 86 (internal quotation marks and citation omitted). The circuit court chose to hold a hearing concerning Franklin's claim of a "multiplicitous" indictment, but denied his request for an evidentiary hearing regarding his remaining claims because the court found that those remaining claims were not properly brought in his CR 60.02 motion. Because we agree that those remaining claims were not properly brought in this CR 60.02 proceeding, as discussed infra, the circuit court did not err in denying Franklin's request for an evidentiary hearing concerning those claims.
B. "MULTIPLICITOUS" INDICTMENT
Franklin next asserts the circuit court should have found that, in addition to counts thirteen, fourteen, sixteen, and seventeen, the remaining charges against him were "multiplicitous." In its appellate brief, the Commonwealth concedes that counts fifteen and eighteen of the indictment violate Franklin's right against double jeopardy pursuant to Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky. 2008). Because the Commonwealth has conceded this point and does not challenge Franklin's claim of multiplicity concerning counts fifteen and eighteen, we reverse the circuit court's order regarding those two charges and remand for further consideration pursuant to Clark.
Yet, Franklin has not shown that the circuit court erred regarding his other claims of multiplicity. Furthermore, Franklin's remaining multiplicity claims could have been brought on direct appeal or in his RCr 11.42 motion. Thus, his remaining multiplicity claims fail.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Franklin next alleges that he received the ineffective assistance of counsel when counsel continued to represent him, despite having a conflict of interest. This conflict of interest allegedly became apparent during the trial court proceedings, before Franklin was sentenced. Franklin raised this claim of ineffective assistance of counsel based upon a conflict of interest in his RCr 11.42 motion. Therefore, it was not properly brought in his CR 60.02 motion, and the circuit court did not err in denying relief based upon this claim.
D. JUDICIAL MISCONDUCT
In his next claim, Franklin asserts that the trial court judge engaged in judicial misconduct by failing to recuse. The trial court judge entered a "Memorandum and Order of Disqualification," which explained that before the judge was elected and sworn as circuit judge, he served as the Hardin County Attorney for over eighteen years. The judge stated in the order that "[w]hile the undersigned may or may not have personal knowledge or information concerning [Franklin's] case, the undersigned did in fact have overall prosecutorial responsibilities and supervision of others with personal knowledge and involvement in the above case." Therefore, the judge disqualified himself from presiding in Franklin's case. However, the order provided that:
If the parties agree to remit the disqualification as provided by Canon 3F [of the Kentucky Code of Judicial Conduct], the parties shall properly execute a remittal of disqualification form which is available from the Clerk of the Court. Absen[t] such remittal of disqualification, this case shall be transferred to Senior Judge Janet P. Coleman pursuant to general order of Judge William J. Wehr, Senior Judge Administrator, for any cases where Senior Judge Janet P. Coleman is also disqualified, the Judge of another division of the Hardin Circuit Court may be assigned or a Special or Senior Judge may be assigned.
The parties, including Franklin and his counsel, signed and submitted to the court a "Remittal of Disqualification," which waived the disqualification and asked for the case to be remitted to the judge. The judge accepted the remittal and signed the document.
Franklin now contends that the judge engaged in judicial misconduct by failing to recuse. However, Franklin consented to the judge remaining on the case and, in fact, requested that the judge remain on the case. Furthermore, this claim could have been brought either on direct appeal or in Franklin's RCr 11.42 motion. Therefore, it was not properly raised in his CR 60.02 motion, and it is not properly before us.
E. VALIDITY OF GUILTY PLEA
Franklin also contends that the circuit court erred in finding that Franklin's guilty plea was entered knowingly, voluntarily, and intelligently without first conducting an evidentiary hearing on the issue during the CR 60.02 proceedings. However, this claim should have been brought on direct appeal or in Franklin's RCr 11.42 motion. Therefore, it is not properly before us in this CR 60.02 proceeding.
F. REPLY BRIEF CLAIMS
Finally, in his reply brief on appeal, Franklin alleges that he received the ineffective assistance of appellate counsel on direct appeal and that he received the ineffective assistance of post-conviction counsel because he proceeded pro se in his RCr 11.42 proceedings. However, Franklin did not raise these claims in his opening appellate brief. "Reply briefs shall be confined to points raised in the briefs to which they are addressed. . . ." CR 76.12(4)(e). Thus, because new issues may not be raised in a reply brief, see Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979), we will not consider these assertions by Franklin.
Accordingly, the order of the Hardin Circuit Court is reversed in part concerning the multiplicity of counts fifteen and eighteen of the indictment, and that part of the case is remanded for further consideration. The remainder of the Hardin Circuit Court's order is affirmed.
ALL CONCUR.
