Not to be published

OPINION

COMBS, Judge.

James Solomon appeals orders of the Calloway Circuit Court denying his motion to show cause and his motion to vacate his conviction and sentence pursuant to Kentucky Rule(s) of Criminal Procedure (RCr) 11.42. The appeals have been consolidated. After our review of the record and the pertinent law, we affirm.

Solomon was convicted of second-degree rape and of being a persistent felony offender (PFO) in the first degree in 2002. He received a sentence of ten-years. Since then, Solomon has filed numerous motions and many appeals. The first motion underlying this appeal is an RCr 11.42 motion filed in January 2008. The trial court held an evidentiary hearing in December 2008 and issued an order denying the motion on April 30, 2009. Solomon's notice of appeal was entered on June 2, 2009.

The other matter involved in this appeal concerns a "motion to show cause and grant relief under RCr 10.26." Solomon asked the court to hold a hearing to determine why the rape victim should not be arrested for falsifying a police report and committing perjury. On June 4, 2009, the trial court denied the motion. The notice of appeal was entered on June 15, 2009. The appeals were consolidated by an order of the Court of Appeals on September 22, 2009.

As a preliminary matter, we note that both parties to this appeal have fallen short of compliance with our appellate rules. The Commonwealth's brief does not address the appeal of the motion to show cause. Kentucky Rule(s) of Civil Procedure (CR) 76.12(8)(c)(iii) allows us to consider the failure to brief as a confession of error. However, we have searched the record in order to allow the appeal to proceed fully on the merits.

Solomon's brief does not contain any citations to the lengthy record; nor does it include all necessary orders in the appendix as required by CR 76.12(4)(c)(iv) and CR 76.12(4)(c)(vii). However, our courts have a policy of treating pro se litigants' briefs with leniency and have generally sought to reach the substantive merits of a case despite procedural flaws. See Miller v. Commonwealth, 458 S.W.2d 453 (Ky. 1970).

RCr 10.26 provides that "a palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal[.]" Additionally, "appropriate relief may be granted upon a determination that manifest injustice resulted from the error."

In its order addressing Solomon's RCr 10.26 motion, the trial court denied the motion, finding that it simply did not have any merit. We agree. Solomon did not make the motion as a motion for a new trial. He also failed to indicate or demonstrate how manifest injustice resulted from the court's failure to issue a warrant for his victim's arrest.

RCr 11.42 allows a person who has been convicted of a crime to collaterally attack his sentence. The motion must be made within three years of final judgment unless the facts were unknown before that time or a constitutional right was not established until after the time limit. RCr 11.42(3).

Solomon's RCr 11.42 motion was filed six years after his conviction. Furthermore, he has not presented any issues that had not previously been adjudicated. The record reveals many motions — including a previous RCr 11.42 — asserting the grounds that Solomon now presents in this appeal: that his trial counsel failed to conduct adequate investigation; that his trial counsel improperly represented him in spite of an alleged conflict of interest; and that his trial counsel made improper remarks to the jury. It is well settled that we "will not review matters which have been or should have been raised and reviewed in prior motions to vacate." Shepherd v. Commonwealth, 477 S.W.2d 798, 799 (Ky. 1972).

Solomon's arguments have been heard many times by the Calloway Circuit Court. We cannot conclude that it erred in denying Solomon's motions. Accordingly, we affirm the orders of the Calloway Circuit Court.

ALL CONCUR.