NOT TO BE PUBLISHED
OPINION
NICKELL, Judge.
In 2005, Kevin Jett pled guilty to murder, robbery in the first degree, burglary in the first degree and tampering with physical evidence. When a psychological evaluation showed him to have below average intelligence in the range of mental retardation, he avoided the death penalty and the Commonwealth offered to recommend a sentence of 35 years in return for his guilty plea. Jett accepted the deal and since that time has attacked the sentence.
In February 2008, he filed an RCr1 11.42 motion seeking to vacate his guilty plea claiming he was incompetent when he committed the crimes, incompetent when he entered his guilty plea, and should have received a competency hearing. The trial court's denial of the motion to vacate was affirmed by a panel of this Court in Jett v. Commonwealth, No. 2008-CA-000769-MR, 2009 WL 3486645 (Ky. App. 2009).
In 2010, Jett filed a motion under CR2 60.02 seeking to modify his sentence. He alleged the trial court erroneously attributed a statement to him that was actually made by the trial court; allowed him to plead guilty when he could not legally understand what he was doing; did not investigate his mental health and prior mental health records; and, allowed him to involuntarily plead guilty. On September 8, 2010, the Jefferson Circuit Court denied the motion finding Jett had failed to establish grounds for extraordinary relief under CR 60.02 and had merely rehashed issues previously raised and rejected under RCr 11.42. It is from this opinion and order that Jett has filed this pro se appeal and we affirm.
ANALYSIS
CR 60.02 is an extraordinary remedy. The movant must make a substantial showing to justify relief. Ringo v. Commonwealth, 455 S.W.2d 49 (Ky. 1970). CR 60.02 "is for relief that is not available by direct appeal and not available under RCr 11.42." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Moreover, issues that could have been raised in a direct appeal or as part of an RCr 11.42 motion will not be considered under CR 60.02 as grounds for relief. Id.
We review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). "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). We will affirm the lower court's decision unless there is a showing of a "flagrant miscarriage of justice." Gross, 648 S.W.2d at 858.
Jett is proceeding pro se. As such, he is not held to the same rigorous standards to which we hold attorneys. Commonwealth v. Miller, 416 S.W.2d 358, 360 (Ky. 1967). While we will relax the rules of appellate procedure for pro se litigants, we will not totally disregard them. Jett's failure to follow the format for briefs set forth in CR 76.12 makes our review difficult.
Jett's first complaint is the trial court abused its discretion in allowing the Department of Public Advocacy (DPA) to withdraw from representing him because he is black. He admits the claim is unpreserved and requests palpable error review pursuant to RCr 10.26.
Jett cites no evidence in support of this accusation and we seriously doubt such proof exists. In his reply brief, he suggests race is the only explanation for DPA not filing a brief on his behalf because the attorney assigned to his case has filed briefs on behalf of white prisoners and had their convictions successfully overturned. The Commonwealth suggests DPA withdrew from the case because the issues raised in the CR 60.02 motion were repetitive of the ill-fated RCr 11.42 motion. There being no proof justifying a grant of extraordinary relief under CR 60.02, we affirm and say nothing more on this issue.
Jett's second argument is the trial court abused its discretion in denying his CR 60.02 motion because it repeated claims previously brought in his RCr 11.42 motion. Jett claims the trial court was wrong because he was unaware of the current claims he raises about his mental capacity and therefore, could not have raised them in the motion to vacate. Jett fails to specify any detail about his mental state he knows today that he did not know when he filed his RCr 11.42 motion in 2008—he does, however, say there were some points he wished he had previously made but did not. Jett has waited until his reply brief to mention these items, thus denying the Commonwealth an opportunity to respond. Still, the schizophrenia he now untimely mentions was noted in this Court's 2009 opinion, so that information is not new.
Nevertheless, the Commonwealth correctly argues CR 60.02 cannot be used to raise issues that could have been, and were, raised in other proceedings. If Jett wanted to challenge his mental capacity, he should not have pled guilty—by pleading guilty he waived all defenses except the indictment failed to charge an offense. Centers v. Commonwealth, 799 S.W.2d 51, 55 (Ky. 1990).
In 2005, a forensic psychologist found Jett to have "below average intelligence in the range of mental retardation." Jett, at *1. As a result, Jett avoided the death penalty and the Commonwealth offered a sentence of 35 years in return for his guilty plea. Jett accepted the plea agreement. In his RCr 11.42 motion, Jett claimed he was statutorily entitled to a competency hearing; could have asserted mental illness as a defense; the trial court should have held a competency hearing; and, the trial court should have held an evidentiary hearing before denying his RCr 11.42 motion. In affirming denial of the motion to vacate, a prior panel of this Court wrote, in pertinent part:
Defense counsel indicated that prior to the hearing he had an exhaustive discussion with the Defendant, and believed the Defendant had the capacity to make a knowing and voluntary plea. The Court asked the Defendant on the record about the evaluation of his IQ. Defense counsel indicated that the Defendant had "deficits" and "problems in formative behavior" during his youth. However, counsel reiterated the Defendant had the capacity to plead knowingly and voluntarily. Furthermore, defense counsel indicated his belief that the Defendant understood the Court proceedings and could participate rationally in his own defense. Defense counsel indicated Defendant's competence in that regard was clear because the Defendant asked counsel just before the hearing on the guilty plea if he could "waive final sentencing."
In addition to counsel's inquiry and discussion, the Court conducted a thorough colloquy with the Defendant regarding his plea. The Defendant indicated that he was satisfied with his attorney's advice and that he had had sufficient time to discuss the case, his rights and any defenses with counsel. The Court inquired into the Defendant's prior mental illness, and the Defendant stated that those issues were resolved a "long, long time ago." The Defendant testified that he was currently prescribed medication and that helped him and made him think clearly. The Defendant repeatedly stated that he understood everything with regard to his case. The Defendant testified that he had been convicted of several felonies in the past, as well as numerous misdemeanors, and received sentences from Courts for those crimes. He testified that he had never been found incompetent by a Court or incapable of handling his own affairs. He said that he knew what he was doing, and he testified that he wanted to plead guilty pursuant to his own free will. He specifically testified that he understood he would receive a 35-year sentence from this Court for his plea. The Court entered a finding that the Defendant's plea [was] knowing and voluntary.
Jett, at *2. In light of the foregoing, Jett never placed his competence in issue, and had he done so, it would have been difficult to overcome a belief that he was competent. Thus, as held in Jett, at *3, no competency hearing was required.
In Jett's third argument, he claims this Court should have held this appeal in abeyance to give the trial court an opportunity to rule on newly discovered evidence about his mental state—evidence he has yet to reveal. This Court received a pro se motion to hold the appeal in abeyance. The Commonwealth did not respond. A motion panel of this Court denied the request. We perceive no error in this denial.
For the foregoing reasons, we affirm the denial of Jett's CR 60.02 motion.
All concur.
