Filed: Jan. 16, 2015
Latest Update: Jan. 16, 2015
Summary: NOT TO BE PUBLISHED OPINION DIXON, Judge. Deshawn R. Moffett, pro se, appeals from an order of the Jefferson Circuit Court denying his motion for post-conviction relief. We affirm. In Moffett v. Commonwealth, 2009 WL 3526653 (2008-SC-000264-MR) (Oct. 29, 2009), the Kentucky Supreme Court set forth the following background information in Moffett's direct appeal: In the early part of 2005, in Jefferson County, Appellants, Overson Jackson and Deshawn Moffett, were members of a group known
Summary: NOT TO BE PUBLISHED OPINION DIXON, Judge. Deshawn R. Moffett, pro se, appeals from an order of the Jefferson Circuit Court denying his motion for post-conviction relief. We affirm. In Moffett v. Commonwealth, 2009 WL 3526653 (2008-SC-000264-MR) (Oct. 29, 2009), the Kentucky Supreme Court set forth the following background information in Moffett's direct appeal: In the early part of 2005, in Jefferson County, Appellants, Overson Jackson and Deshawn Moffett, were members of a group known a..
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NOT TO BE PUBLISHED
OPINION
DIXON, Judge.
Deshawn R. Moffett, pro se, appeals from an order of the Jefferson Circuit Court denying his motion for post-conviction relief. We affirm.
In Moffett v. Commonwealth, 2009 WL 3526653 (2008-SC-000264-MR) (Oct. 29, 2009), the Kentucky Supreme Court set forth the following background information in Moffett's direct appeal:
In the early part of 2005, in Jefferson County, Appellants, Overson Jackson and Deshawn Moffett, were members of a group known as the `Click Tight' gang or the `Stick Em Up' kids. Jackson suggested that the group begin robbing people to get money. These robberies eventually escalated into a series of burglaries. During one of these burglaries, a Hispanic female known as E.D. was raped and sodomized.
Jackson and Moffett were tried as codefendants in a joint trial. Other members of the group accepted plea bargains and testified against both individuals.
. . .
Moffett was tried for 72 offenses and was found guilty of one count of complicity to rape, one count of complicity to sodomy, two counts of complicity to kidnapping, four counts of complicity to burglary in the first degree, thirty-three counts of complicity to robbery in the first degree, and one count of being a persistent felony offender in the second degree. The jury recommended a sentence of 321 years, and the trial court reduced the recommendation, pursuant to KRS 532.110(1)(c), to 70 years.
The Kentucky Supreme Court affirmed Moffett's conviction and sentence; however, the Court vacated a portion of the trial court's judgment that imposed court costs and fines. On December 15, 2009, the Jefferson Circuit Court entered an order dismissing the court costs and fines associated with Moffett's case.
On June 26, 2013, Moffett filed a petition for independent action pursuant to CR 60.03, which urged the trial court to vacate his conviction due to ineffective assistance of trial counsel. The trial court denied Moffett's motion as untimely, and this appeal followed.
In Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983), the Kentucky Supreme Court outlined the availability of post-conviction relief as follows:
[A] defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him. Final disposition of that motion, or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding. The language of RCr 11.42 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.
In the case at bar, Moffett failed to bring his claim of ineffective assistance of counsel in a timely RCr 11.42 motion; instead, he filed an independent action pursuant to CR 60.03. We also note that, even if Moffett had correctly filed an RCr 11.42 motion, his claim of ineffective assistance was untimely. A motion pursuant to RCr 11.42 "shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves . . . that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence . . . ." RCr 11.42(10)(a). Moffett's claim of ineffective assistance of counsel could have been ascertained within the three-year limitation period prescribed by the rule; consequently, he should have been aware of the alleged error and raised it in a timely manner pursuant to RCr 11.42. After careful review, we conclude the trial court properly denied Moffett's motion for post-judgment relief.
For the reasons stated herein, we affirm the order of the Jefferson Circuit Court.
ALL CONCUR.
