ERIC CUNNINGHAM v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 25, 1998: 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-001102-MR
ERIC CUNNINGHAM
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 93-CR-756
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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DYCHE, EMBERTON and JOHNSON, Judges.
JOHNSON, JUDGE: Eric C. Cunningham (Cunningham) appeals from
orders of the Jefferson Circuit Court which denied his Kentucky
Rules of Civil Procedure (CR) 60.02 and 60.03 motion for
modification or reduction of sentence and motions for appointment
of counsel, an evidentiary hearing and production of documents.
We affirm.
In March 1993, Cunningham was indicted on one count of
assault in the second degree for intentionally shooting Dajuan R.
Best (Best) in the lower abdomen.
(KRS) 508.020.
Kentucky Revised Statutes
Cunningham pleaded guilty to one count of assault
under extreme emotional disturbance for which the Commonwealth
recommended a prison sentence of three years.
KRS 508.040.
On
August 24, 1993, final judgment was entered and Cunningham was
sentenced to three years in prison.
Cunningham was granted shock probation on October 21,
1993, after serving 30 days of his three-year sentence.
In 1995,
Cunningham was arrested for various offenses resulting in the
revocation of his shock probation on April 12, 1996.
Cunningham
was ordered to serve the remainder of his three-year sentence.
In April 1997, Cunningham filed a motion for modification or
reduction of sentence pursuant to CR 60.02 and 60.03.
This
motion was denied by an order of the Jefferson Circuit Court
entered on April 9, 1997.
Cunningham then filed motions for
appointment of counsel, an evidentiary hearing and production of
documents.
These motions were denied on April 17, 1997.
This
appeal followed.
Cunningham contends that he possesses “new” evidence
which proves that he acted in self-defense when he shot Best in
1993.
The new evidence presented by Cunningham consists of an
affidavit by Cunningham, an unsworn statement by an individual
named Scott Malone, and the indictment of the victim, Best, for
bank robbery in 1994.
CR 60.02 provides six specific grounds for modifying a
final judgment.
The ground relevant to this case is subsection
(b) which states as follows:
“newly discovered evidence which by
due diligence could not have been discovered in time to move for
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a new trial under Rule 59.02.”
A motion pursuant to subsection
(b) must be filed within one year of the entry of final judgment.
This one-year limitation cannot be avoided by using the residual
ground found in subsection (f).
See Tartar v. Medley, Ky., 371
S.W.2d 480, 481 (1963) (holding that the one-year limitation on a
motion pursuant to subsection (c) cannot be avoided through the
use of ground (f)).
Cunningham was sentenced and final judgment was entered
on August 24, 1993, more than three years before the filing of
his CR 60.02 motion.
Thus, Cunningham’s claim is barred by the
one-year limitation provided by CR 60.02.
Cunningham has also claimed relief pursuant to CR
60.03.
However, CR 60.03 specifically provides that “[r]elief
shall not be granted in an independent action if the ground of
relief sought . . . would be barred because not brought in time
under the provisions of [CR 60.02].”
Thus, his CR 60.03 motion
is also time barred.
Even if Cunningham’s motion had been timely filed, the
evidence he has presented does not justify relief under CR
60.02(b).
In order to obtain relief, the newly discovered
evidence must not have been discoverable in time to move for a
new trial under Rule 59.02, i.e. discoverable within ten days
after the entry of final judgment.
Also, the evidence must be
“of such character as would make reasonably certain a different
judgment.”
Carter v. Spurlock, Ky., 282 S.W.2d 838, 840 (1955).
The evidence referred to in Cunningham’s affidavit and Malone’s
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unsworn statement could have easily been introduced at a trial in
the form of testimony.
of CR 60.02.
Thus, it does not meet the requirements
The other evidence offered by Cunningham to prove
he acted in self-defense is Best’s indictment for bank robbery in
1994.
Since Cunningham pleaded guilty in 1993, obviously,
evidence of a bank robbery that occurred in 1994 “would [not]
make reasonably certain a different judgment” in 1993.
Id.
Further, it must be remembered that Cunningham pleaded
guilty, thus waiving his constitutional rights to a trial by jury
and to produce evidence and call witnesses.
Cunningham has not
challenged the validity of his guilty plea.
Cunningham also argues that the trial court erred in
denying his motions for appointment of counsel, an evidentiary
hearing and production of documents relevant to his case.
The trial court was not required to appoint counsel for
Cunningham’s CR 60.02 motion.
S.W.2d 853, 857-858 (1983).
Gross v. Commonwealth, Ky., 648
Thus, it did not err in denying
Cunningham’s motion for appointment of counsel.
Cunningham was only entitled to an evidentiary hearing
on his motion if he “affirmatively allege[d] facts which, if
true, justif[ied] vacating the judgment and further allege[d]
special circumstances that justif[ied] CR 60.02 relief.”
856.
Id. at
The trial court did not err in denying Cunningham an
evidentiary hearing because the evidence he provided, even if
true, did not justify vacating the judgment.
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Finally, Cunningham relies on KRS 31.110 in support of
his request for production of documents.
However, the
requirements of KRS 31.110 do not apply to CR 60.02 proceedings.
Gross, 648 S.W.2d at 857.
Furthermore, Cunningham did not file
his motion for the documents until after his CR 60.02 motion was
denied.
Thus, it appears that he is simply searching for other
possible grounds for collateral attack.
Gilliam v. Commonwealth,
Ky., 652 S.W.2d 856, 858 (1983), expressly prohibits the
production of documents at state expense as “a mechanism to
search for unknown grievances.”
The trial court was correct in
denying Cunningham’s motion for production of documents.
For the foregoing reasons, the Jefferson Circuit
Court’s orders denying Cunningham’s motions to reduce or modify
sentence, for appointment of counsel, an evidentiary hearing and
production of documents are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric C. Cunningham, Pro Se
Luther Luckett Correctional
Complex
LaGrange, KY
Hon. A. B. Chandler, III
Attorney General
Hon. R. Evelyn Freer
Assistant Attorney General
Frankfort, KY
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