JAMES R. THOMAS v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 19, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
96-CA-3414-MR
JAMES R. THOMAS
APPELLANT
APPEAL FROM OWEN CIRCUIT COURT
HONORABLE RAY CORNS, SPECIAL JUDGE
ACTION NO. 95-CR-00033
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
BUCKINGHAM, KNOPF, and SCHRODER, JUDGES.
KNOPF, JUDGE.
James Thomas appeals from an order of the Owen
Circuit Court entered on November 22, 1996, denying his motion
for a new trial.
Finding no error, we affirm.
On June 2, 1995, following a two (2) day trial, a jury
found Thomas guilty of the following felonies: one (1) count of
trafficking in marijuana
)
five (5) pounds or more (KRS
218A.1421), one (1) count of cultivating five (5) or more
marijuana plants while in possession of a firearm (KRS 218A.1423
and 218A.992), one (1) count of first-degree possession of a
controlled substance (cocaine) while in possession of a firearm
(KRS 218A.1415 and 218A.992), and one (1) count of possession of
drug paraphernalia while in possession of a firearm (KRS 218A.500
and 218A.992).
On June 23, the circuit court sentenced Thomas,
consistent with the penalties fixed by the jury, to twenty (20)
years on the trafficking in marijuana offense, ten (10) years on
the cultivating marijuana offense, ten (10) years on the firstdegree possession of cocaine offense, and five (5) years on the
possession of drug paraphernalia offense.
All sentences were to
run concurrently for a total sentence of twenty (20) years in
prison.
On June 26, 1995, Thomas appealed his conviction
directly to the Kentucky Supreme Court challenging the search of
his residence and the introduction of the firearm seized by the
police.
The Supreme Court affirmed the conviction in an
unpublished opinion.
Thomas v. Commonwealth, 95-SC-579 (rendered
May 23, 1996).
On September 23, 1996, Thomas filed a motion for a new
trial citing to RCr 10.26.
Thomas requested a new trial based on
an alleged violation of a parent-child privilege related to
information given police by Thomas's daughter that led to the
search and seizure of the physical evidence used to convict him.
The Commonwealth filed a response challenging both the timeliness
and the merits of the motion.
On November 22, 1996, the circuit
court summarily denied the motion for a new trial.
Thomas
appealed the order denying the motion.
The Commonwealth asserts that Thomas's motion was
properly denied because it was filed beyond the time limitation
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for a new trial motion imposed by RCr 10.06.
This argument in
effect raises the issue of the trial court's jurisdiction to
entertain the motion and the procedural issues involved in this
case.
Under RCr 10.06, a motion for a new trial shall be served
within five (5) days after the verdict unless the motion is based
on newly discovered evidence, which may be made within one (1)
year after entry of the judgment.
September
Thomas's motion was filed on
23, 1996 and served by mail on approximately September
20, 1996, as indicated by the certificate of service.
This was
clearly outside either the five (5) day or one (1) year time
limit of RCr 10.06(1).
However, Thomas's motion merely cites RCr 10.26, which
contains no explicit time limitation, as the rule supporting the
request for a new trial.
RCr 10.26 states:
A palpable error which affects the
substantial rights of a party may be
considered by the court on a motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
This rule expresses a substantive basis for granting
relief upon review of an error, rather than establishing an
independent procedural mechanism creating jurisdiction in a trial
court.
Review for palpable error under RCr 10.26 is available
upon direct appeal, but is not appropriate for review on
collateral attack of a conviction.
See Humphrey v. Commonwealth,
Ky., ___ S.W.2d ___, 1998 WL 79154 (Ky. Sup. Ct. Feb. 19, 1998).
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The recognized mechanism for post-conviction review of trial
errors is through RCr 11.42 or CR 60.02.
Ky., 648 S.W.2d 853 (1983).
Gross v. Commonwealth,
These rules create jurisdiction in
the trial court to grant relief in a collateral proceeding
outside the time limitations of a direct appeal or motion for a
new trial under RCr 10.06.
694 S.W.2d 689 (1985);
See, e.g., Commonwealth v. Wine, Ky.,
McBride v. Commonwealth, Ky., 432 S.W.2d
410 (1968) (construing motion for concurrent sentences outside
time limit of direct appeal as RCr 11.42 motion).
An RCr 11.42
motion generally must be filed within three (3) years after the
judgment becomes final, with two (2) exceptions. RCr 11.24(5).
Based on the specific grounds for the requested relief, a CR
60.02 motion must be filed within one (1) year or reasonable time
after the judgment becomes final.
RCr 11.42 and CR 60.02 were
not, however, intended to provide an appellant an opportunity to
raise issues that could or should have been raised upon direct
appeal.
See Gross, supra; Cinnamon v. Commonwealth, Ky., 455
S.W.2d 583, 584 (1970), cert. denied, 401 U.S. 941, 91 S. Ct.
942, 28 L. Ed. 2d 221 (1971)(post-conviction proceeding under RCr
11.42 or CR 60.02 is not a substitute for appeal).
Consequently,
even construing Thomas's motion liberally as possibly filed under
RCr 11.42 or CR 60.02 for purposes of satisfying the time
constraints for a motion to vacate a sentence and providing
jurisdiction in the trial court to consider the motion, Thomas is
not entitled to relief because the issue of a possible parentchild privilege was readily apparent at the time of the trial and
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could have been raised on his direct appeal.
Thomas has not
claimed ineffective assistance of counsel with respect to
counsel's failure to raise the issue of privilege, which would be
available under RCr 11.42.
The issue of ineffective assistance
of counsel cannot be considered on appeal unless it has already
been raised before the trial court, so we will not address this
issue.
See White v. Commonwealth, Ky. App., 695 S.W.2d 438
(1985).
In any event, Thomas's request for a new trial may be
rejected on substantive grounds.
Only a few lower courts in New
York have recognized a parent-child privilege, while all state
supreme courts and federal appellate courts addressing the issue
have refused to adopt this privilege.
See In Re Grand Jury, 103
F.3d 1140 (3rd Cir.), cert. denied, ___ U.S. ___, 117 S. Ct.
2412, 138 L. Ed. 2d 177 (1997).
The Kentucky Rules of Evidence
were recently adopted without including a parent-child privilege.
Claims of testimonial privilege generally are disfavored because
they impede access to relevant or material evidence.
v. Redmond,
U.S.
See Jaffee
, 116 S. Ct. 1923, 135 L. Ed. 2d 337
(1996); Meenach v. General Motors Corp., Ky., 891 S.W.2d 398, 402
(1995).
KRE 501 expresses an intent to restrict recognition or
creation of common-law privileges.
Consequently, Thomas has
failed to establish the existence of a parent-child privilege.
For the foregoing reasons, we affirm the order of the
Owen Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James R. Thomas, Pro Se
Frankfort, Kentucky
A.B. Chandler III
Attorney General
William Daniel
Assistant Attorney General
Frankfort, Kentucky
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