NOT TO BE PUBLISHED

OPINION

VANMETER, Judge.

Marcus Demetrius Jackson appeals from an order from the McCracken Circuit Court denying his CR1 60.02(f) motion. For the following reasons, we affirm.

I. Procedural and Factual Background

At a jury trial in 1991, Jackson was convicted of four crimes: I. second-degree assault; II. first-degree wanton endangerment; III. complicity to wanton endangerment; and IV. terroristic threatening. Allegedly, these crimes were the result of racial violence between two gangs. Counts I and II stem from a drive-by shooting that took place on August 18, 1991. The victims of the shooting reported that a red car with a sun roof drove by several times, with a gun out the window, firing the weapon multiple times. Count III stems from a separate drive-by shooting incident.

Jackson was sentenced to nine years: five years for count I, three years for count II, and one year for count III, to run consecutively. On direct appeal, in May 1993, Jackson's sentence was partially reversed, with instructions that his sentence instead run concurrently for a total of five years.

In February 2012, nearly twenty years after the original trial, Jackson filed a pro se CR 60.02 motion, based on affidavits from Gloria Harris, the owner of the car used in the first drive-by shooting incident, and Dante Sains (now known as Rahim Shabazz; hereinafter Shabazz), one of the alleged gunmen. An evidentiary hearing was held in April 2012, at which Ms. Harris testified, but Shabazz did not. The trial court entered an order denying this CR 60.02 relief on May 9, 2012.

While Jackson's appeal of his first CR 60.02 motion was pending, in April 2013, Marvin Hamilton, one of the other alleged gunmen, executed an affidavit similar to Harris's and Shabazz's. As a result of this affidavit, Jackson filed a successive CR 60.02 motion on June 4, 2013. Jackson further appended a letter from Ms. Harris claiming that she had committed perjury at the original trial. Another evidentiary hearing was held in November 2013, at which Jackson attempted to introduce the testimony of both Hamilton and Shabazz; however, the trial judge expressed concern that they might incriminate themselves without the presence of counsel. Both Hamilton and Shabazz consulted court-appointed counsel and invoked their Fifth Amendment right against self-incrimination, and the trial court declared both Hamilton and Shabazz to be unavailable. Jackson then called Brad Milburn, an investigator with the Department of Public Advocacy, to testify as to what Hamilton and Shabazz told him about their affidavits. The Commonwealth opposed this testimony as requiring corroboration, and thus Milburn's testimony came in only as proffer. The trial court entered an order denying the second CR 60.02 motion on May 8, 2014. Jackson now appeals the denial of his successive CR 60.02 motion.

Upon the trial court's denial of Jackson's successive CR 60.02 motion, Jackson's newly court-appointed counsel filed the present appeal as well as a motion to consolidate the appeals of the first and second CR 60.02 motions, 2012-CA-001256 and 2014-CA-000916, respectively. This court granted the consolidation of the two cases, which are now considered together on the merits. Any necessary additional facts will be discussed with the relevant argument.

II. Custody Status

Jackson served his original sentence, and was released on parole on May 19, 1994. The appellate court will generally dismiss a post-conviction relief appeal for mootness once the defendant has completely served out his sentence. See Parrish v. Commonwealth, 283 S.W.3d 675, 677 (Ky. 2009). However, his CR 60.02 is not moot because he is still considered "in custody" as an aggregate term of imprisonment under this original conviction pursuant to KRS2 532.120(1)(b).3

In 1997, Jackson was sentenced to twenty-years' imprisonment, for trafficking in a controlled substance in the first degree (cocaine), and being a persistent felony offender in the second degree. In 1998, this sentence was affirmed, and he served time until 2001 when he was again released on parole. In 2007, Jackson was again convicted, this time for trafficking in marijuana, greater than five pounds, and being a persistent felony offender in the first degree. He was sentenced to fifteen years, and his sentence was affirmed in 2010. Jackson is currently serving this sentence, and will not be eligible for parole until January 2019. Setting aside this 1991 conviction would affect Jackson's classification as a persistent felony offender, and may reduce his current sentence.

III. Standard of Review

"Given the high standard for granting a CR 60.02 motion, a trial court's ruling on the motion receives great deference on appeal and will not be overturned except for an abuse of discretion" Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998).4 The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Therefore, the lower court's decision will be affirmed unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). In considering whether the denial of a CR 60.02 was an abuse of discretion, the two factors to be considered are whether the movant had a fair opportunity to present his claim and whether the granting of the relief sought would be inequitable to the other parties. Edmonds v. Commonwealth, No. 2013-CA-001808-MR, 2015 WL 2357474, at *6 (Ky. App. May 15, 2015) (citing Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky. 1957)).

IV. Arguments

Jackson makes four arguments on appeal. First, he argues that his successive CR 60.02 motions are procedurally proper. Second, he argues that the trial court abused its discretion in holding that Marvin Hamilton's statement against interest was not corroborated and is therefore inadmissible. Third, Jackson argues the trial court abused its discretion in finding that the testimony of Harris and Shabazz would not meet the burden required by CR 60.02(f). Fourth, Jackson argues that he is entitled to an evidentiary hearing at which Steven Laird can testify to Jackson's innocence as to the complicity to wanton endangerment charge.5

A. Timeliness under CR 60.02

CR 60.02 reads, in relevant part,

The Kentucky Supreme Court has addressed the procedure for collateral appeal via CR 60.02 in Gross, stating that

648 S.W.2d at 856 (original emphasis).

Relief may be granted under CR 60.02(b) within one year after judgment for any newly discovered evidence which due diligence could not have discovered in time to move for a new trial. See CR 60.02; McQueen v. Commonwealth, 948 S.W.2d 415, 417 (Ky. 1997). If a claimant is time-barred from bringing a claim under CR 60.02(b), he may still be entitled to relief under CR 60.02(f). See Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014). "CR 60.02(f) is a catch-all provision that encompasses those grounds, which would justify relief pursuant to writ of coram nobis, that are not otherwise set forth in the rule."7 Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999). The trial judge may properly consider, in granting or denying a CR 60.02 motion, whether the passage of time between judgment and motion was reasonable in light of the fading memories of witnesses. Harris v. Commonwealth, 296 S.W.2d 700, 702 (Ky. 1956); Gross, 648 S.W.2d at 858.

In this case, Jackson argues that his motion is properly raised under CR 60.02(f), not 60.02(b), and was brought within the reasonable time required. The Commonwealth counters that Jackson does not address why his motion should not be treated as a motion for a new trial based on newly discovered evidence under CR 60.02(b), and that even if Jackson's motion is considered under CR 60.02(f), his motion was not brought within a reasonable time.

In this case, both Harris and Shabazz were present and testified at the original trial in 1991. Although the affidavits of Harris and Shabazz were not executed until 2011, and Hamilton's in 2013, this evidence is time-barred under CR 60.02(f). A CR 60.02(f) motion filed over twenty years after the original trial and based on evidence and witnesses who were available at the original trial cannot be considered brought within a reasonable time, even if the testimony differs from the witness's original testimony. The trial court did not abuse its discretion in finding this CR 60.02(f) motion was untimely.

B. Extraordinary Relief under CR 60.02(f)

Since Jackson's successive CR 60.02 motions were not timely, we will not consider the merits of this appeal. However, even if we were to consider the merits, in the light of the evidence and testimony produced at the original trial as to Jackson's guilt, we view these additional affidavits, over twenty years later, with skepticism.

Relief under CR 60.02(f) may be granted for any reason of an extraordinary nature justifying relief, "which will issue for the judicial correction of a wrong committed in the administration of criminal justice resulting in the deprivation of life or liberty without due process of law." Spaulding, 991 S.W.2d at 655; see Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009) (stating that CR 60.02(f) stands in place of the writ of coram nobis, which required a petitioner "to convince the court that `real facts as later presented . . . rendered the original trial tantamount to none at all[.]'"). "To prevail upon a claim of newly discovered evidence per CR 60.02(f), a claimant must demonstrate that the newly discovered evidence is `of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result[.]'" Foley, 425 S.W.3d at 886 (quoting Jennings v. Commonwealth, 380 S.W.2d 284, 285-86 (Ky. 1964)). "CR 60.02 allows appeals based upon claims of error that `were unknown and could not have been known to the moving party by exercise of reasonable diligence and in time to have been otherwise presented to the court.'" Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011). In other words, CR 60.02 allows a judgment to be collaterally vacated based on facts or on grounds that do not appear in the record, which were not available on direct appeal, and were not discovered until after the judgment was rendered, but without fault of the party putting forth the motion.

Jackson relies on the affidavits of Harris, Shabazz, and Hamilton to introduce new evidence, which he contends would change the outcome of his trial. We disagree. Although these affidavits introduce new facets of the drive-by shootings, their testimony is not new and does not rise to a level meriting the extraordinary relief imagined by CR 60.02(f).

At the original trial, Harris testified that Jackson was not the person to whom she loaned her car and that she did not know what had become of her car that evening. Assuming she perjured herself at the original trial, she did so in a way that did not harm Jackson. Her subsequent affidavit and testimony at the evidentiary hearing greatly elaborates on her involvement and knowledge of what occurred that night. However, her testimony regarding Jackson's involvement did not change; even in her later affidavit, she testified that in 1991, she told both the police and Jackson's parents that he was not involved with the shooting.

A motion based on perjured testimony at the defendant's trial is properly brought under CR 60.02(f) only if the conviction would probably not have been rendered without the false testimony, and is tantamount to a denial of due process. See Spaulding, 991 S.W.2d at 655-57. A mere showing that a prosecuting witness has made subsequent contradictory statements or is now willing to testify that his trial testimony was perjured is not sufficient to sustain a CR 60.02(f) motion. See Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48, 52 (1943). We agree with the trial court that Jackson has not shown that Harris's current testimony would have changed the trial outcome, especially since she testified at the original trial.

Although Shabazz testified that Jackson was not in the gang involved in the shooting, he does not implicate himself in the shooting as required under KRE 804(b)(3)8 and his affidavit only minimally mentions Jackson. Therefore, Shabazz's testimony would likely be inadmissible, and would not be likely to change the outcome of Jackson's trial. Finally, although Hamilton's affidavit exculpates Jackson, as with Shabazz, Hamilton's testimony has not been shown to be admissible under KRE 804(b)(3), and thus could not be said to change the trial outcome. The additional contradictory testimonies of Harris, Shabazz, and Hamilton are not sufficient to sustain this CR 60.02(f) motion.

V. Conclusion

The trial court did not abuse its discretion in finding that Jackson's CR 60.02(f) motion was not brought in a timely manner, that the additional contradictory testimony of Harris, Shabazz, and Hamilton was not of the extraordinary nature required by CR 60.02(f), and that these affidavits would not likely change the outcome of a new trial. The order of the McCracken Circuit Court is affirmed.

ALL CONCUR.