Filed: Jun. 22, 2012
Latest Update: Jun. 22, 2012
Summary: NOT TO BE PUBLISHED OPINION DIXON, JUDGE. Appellant, Gene Smith, appeals pro se from an order of the Jefferson Circuit Court denying his motion to vacate his sentence pursuant to RCr 60.02. Finding no error, we affirm. In April 2009, Appellant was convicted of three counts of first-degree robbery, and of being a second-degree persistent felony offender. He was sentenced to imprisonment for twenty-five years on each count, to run concurrently. The convictions stemmed from the September 8, 2
Summary: NOT TO BE PUBLISHED OPINION DIXON, JUDGE. Appellant, Gene Smith, appeals pro se from an order of the Jefferson Circuit Court denying his motion to vacate his sentence pursuant to RCr 60.02. Finding no error, we affirm. In April 2009, Appellant was convicted of three counts of first-degree robbery, and of being a second-degree persistent felony offender. He was sentenced to imprisonment for twenty-five years on each count, to run concurrently. The convictions stemmed from the September 8, 20..
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NOT TO BE PUBLISHED
OPINION
DIXON, JUDGE.
Appellant, Gene Smith, appeals pro se from an order of the Jefferson Circuit Court denying his motion to vacate his sentence pursuant to RCr 60.02. Finding no error, we affirm.
In April 2009, Appellant was convicted of three counts of first-degree robbery, and of being a second-degree persistent felony offender. He was sentenced to imprisonment for twenty-five years on each count, to run concurrently. The convictions stemmed from the September 8, 2008, robbery of a Cash Express store in Louisville by Appellant and two accomplices, Brandon Hooten and Ray Easton. Hooten and Easton both accepted plea agreements in exchange for their testimony against Appellant. Appellant's convictions and sentence were subsequently affirmed on appeal in an unpublished decision by the Kentucky Supreme Court. Smith v. Commonwealth, 2009-SC-000364-MR (June 17, 2010).
On January 2, 2011, Appellant filed a pro se CR 60.02 motion alleging that prosecutorial misconduct during closing arguments warranted vacating his sentence. Appellant also moved for the appointment of counsel and for an evidentiary hearing. On April 7, 2011, the trial court denied all motions. This appeal followed.
The standard for reviewing the denial of a CR 60.02 motion is whether or not the trial court abused its discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
Relief under CR 60.02 is limited to the following circumstances:
1) The first three grounds specified in the rule [(a) mistake, inadvertence, surprise or excusable neglect, (b) newly discovered evidence, (c) perjury] are limited to application for relief "not more than one year after the judgment."
2) The additional specified grounds for relief are (a) fraud, (b) the judgment is void, vacated in another case, satisfied and released, or otherwise no longer equitable, or (c) other reasons of an "extraordinary nature" justifying relief. These grounds are specific and explicit.
Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Importantly, however, our Supreme Court in Gross emphasized,
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. CR 60.02 is not intended merely as an additional opportunity to raise [ ] defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief.
Id. at 856. Thus, to attack a final judgment of a trial court, an appellant is first to proceed on direct appeal, and then under RCr 11.42, raising any ground of which the defendant is aware, or should be aware, during the period of time when this remedy is available. Thereafter, a defendant may proceed under CR 60.02. Id. Final disposition of an RCr 11.42 motion "shall conclude all issues that could reasonably have been presented in the same proceeding." RCr 11.42(3). In other words, "[t]he 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." Gross, 648 S.W.2d at 857.
Appellant argues herein that the Commonwealth committed prosecutorial misconduct during closing arguments by wrongly asserting that (1) the gun was in working order during the robbery; (2) Appellant planned the crime; and (3) Appellant threw the gun out of the car window following the robbery. Clearly, the facts underlying Appellant's motion were known to him at the time of his direct appeal. Accordingly, the arguments that Appellant presents in his CR 60.02 motion are ones that could or should have been raised on direct appeal or in a subsequent motion for RCr 11.42 relief. As Appellant did not avail himself of those avenues, he is procedurally barred from raising such claims under CR 60.02.
The order of the Jefferson Circuit Court denying Appellant's motion for relief pursuant to CR 60.02 is affirmed.
ALL CONCUR.
