DANNY R. MATTHEWS v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 18, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-003269-MR
DANNY R. MATTHEWS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 95-CR-00647
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE: Danny R. Matthews (Matthews) appeals from an
order of the Fayette Circuit Court entered on November 18, 1996,
which denied Matthews’ Kentucky Rules of Civil Procedure (CR)
60.02 motion to vacate a judgment.
Matthews pled guilty to two
counts of theft by deception over $100 in violation of Kentucky
Revised Statutes (KRS) 514.040 and received two four-year prison
sentences to run concurrently with each other.
Matthews argues
that he should be relieved of the judgment of conviction claiming
that he was justified when he committed the acts of theft.
We
affirm.
Around 11:00 p.m. on the evening of October 30, 1991,
Matthews was arrested on the charge of trafficking in marijuana
within 1,000 yards of a school.
Police searched Matthews’ house
and found several small bags of marijuana and various drug
paraphernalia. They found a marijuana cigarette in the left
pocket of Matthews’ pants and $450 in large bills in Matthews’
checkbook case with a deposit slip.
According to Matthews, that same evening he was
approached by Detectives Jerry Staed and Mike Bosse, narcotics
detectives for the Lexington-Fayette Urban County Government
Division of Police, and asked to become a confidential informant
to work on a case in which a Jessamine County deputy sheriff and
his nephew were being investigated for drug trafficking.
Matthews agreed and met with the nephew several times while
wearing a wire transmitter which recorded the conversations on
audiotape.
Matthews purchased four ounces of marijuana from the
nephew on one occasion and they discussed a purchase of at least
50 pounds of marijuana from the deputy sheriff.
Matthews alleged that on November 20, 1991, the nephew
and a man in a Jessamine County deputy sheriff’s uniform stormed
into his home and held him at gunpoint.
Matthews alleged that
the man in the deputy sheriff’s uniform told him that he knew
about him being a confidential informant, that Matthews would not
make it to trial because he was going to blow Matthews’ head off
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and then tell others that Matthews had resisted arrest, and that
no one would question the shooting since Matthews was on parole.
Matthews claimed that he feared for his life and after
considering all the reasonable alternatives available, he decided
to leave town.
Over the next sixteen days, Matthews wrote twenty-eight
checks for over $100 and eight checks for under $100 knowing that
his bank account contained insufficient funds with which to honor
these checks.
He claimed he wrote these checks in order to
purchase merchandise which could be pawned for cash.
He claimed
that after he pawned the purchased items he went immediately to
the Greyhound bus station and purchased a ticket for the first
bus leaving town.
He eventually settled in Mobile, Alabama, and
remained there for nearly four years until he was arrested and
returned to Kentucky.
Upon his return to Fayette County,
Matthews was indicted on 36 counts for theft by deception, one
count of trafficking in a controlled substance within 1,000 yards
of a school and being a persistent felony offender in the first
degree.
On August 25, 1995, Matthews pled guilty to two felony
counts of theft by deception and the remaining charges were
dismissed.
On September 26, 1995, Matthews was sentenced to two
four-year terms of imprisonment to run concurrently with each
other.
On June 12, 1996, Matthews filed a motion for the
release of documents pursuant to Kentucky Rules of Criminal
Procedure (RCr) 7.02(3).
Matthews expressly waived his privilege
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of confidentiality as an informant and requested the audiotape
recordings of his confidential informant work and any documents
related to his meetings with the Jessamine County deputy sheriff
and the nephew which occurred in November 1991.
He stated that
he needed these documents to appeal a Parole Board decision and
to prepare a CR 60.02 motion.
By order dated June 18, 1996, the
trial court stated that the requested items were not evidence in
Matthews’ case and it had no authority to order their release.
On October 24, 1996, Matthews filed a motion under
CR 60.02(e) and (f) which provide in pertinent part as follows:
On motion a court may, upon such terms as
are just, relieve a party or his legal
representative from its final judgment,
order, or proceeding upon the following
grounds: . . . (e) . . . it is no longer
equitable that the judgment should have
prospective application; or (f) any other
reason of an extraordinary nature justifying
relief. . . .
Matthews argued that he should be relieved of the judgment of
conviction because the circumstances surrounding his case
justified his acts of writing checks when there were insufficient
funds.
In conjunction with his CR 60.02 motion, Matthews also
filed a motion to enter evidence to support his justification
claim, i.e., any audio tapes or documents of him serving as a
confidential informant in November 1991.
The Commonwealth
responded that the facts given by Matthews did not constitute a
reason of an “extraordinary nature” and, furthermore, Matthews
was aware of all of these circumstances when he entered his
guilty plea which waived the right to bring any defense to the
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charges.
Matthews protested that “being hunted and having his
life threatened by a corrupt, drug trafficking Deputy Sheriff”
were circumstances of an extraordinary nature, and he claimed
that if the trial court would inspect evidence of his short
tenure as a confidential informant, it would better understand
the extraordinary nature of his circumstances.
denied Matthews’ motions.
The trial court
This appeal followed.
Matthews argues that his actions in writing the checks
were justified, and that “it is no longer equitable that the
judgment should have prospective application” and that the
circumstances amount to a “reason of an extraordinary nature”.
The Commonwealth’s initial response in its brief is that the
justification defense is not available to Matthews since the
allegations were known to him at the time he chose to enter the
guilty plea and that by entering a guilty plea he waived the
right to bring all defenses.
In his reply brief, Matthews adds
the argument that his guilty plea was coerced because he had no
choice but to plead guilty when the Commonwealth failed to comply
with its obligation to disclose exculpatory evidence of him
having served as a confidential informant, when the police
refused to release the tapes and documents in question, and when
his counsel refused to defend him at trial without physical
evidence to support his justification claim.
In Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983),
the Supreme Court addressed the issue of collateral attacks on
criminal judgments as follows:
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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 Boykin 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. Before the
movant is entitled to an evidentiary hearing,
he must affirmatively allege facts which, if
true, justify vacating the judgment and
further allege special circumstances that
justify CR 60.02 relief.
CR 60.02 was enacted as a substitute for
the common law writ of coram nobis. The
purpose of such a writ was to bring before
the court that pronounced judgment errors in
matter[s] of fact which (1) had not been put
into issue or passed on, (2) were unknown and
could not have been known to the party by the
exercise of reasonable diligence and in time
to have been otherwise presented to the
court, or (3) which the party was prevented
from so presenting by duress, fear, or other
sufficient cause. Black’s Law Dictionary,
Fifth Edition, 487, 1444.
In Harris v. Commonwealth, Ky., 296 S.W.2d
700 (1956), this court held that 60.02 does
not extend the scope of the remedy of coram
nobis nor add additional grounds of relief.
We held that coram nobis “is an extraordinary
and residual remedy to correct or vacate a
judgment upon facts or grounds, not appearing
on the face of the record and not available
by appeal or otherwise, which were not
discovered until after rendition of judgment
without fault of the party seeking relief.”
* * * *
We hold that the proper procedure for a
defendant aggrieved by a judgment in a
criminal case is to directly appeal that
judgment, stating every ground of error which
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it is reasonable to expect that he or his
counsel is aware of when the appeal is taken.
Next, we hold that a defendant is required
to avail himself of RCr 11.42 while in
custody under sentence or on probation,
parole or conditional discharge, as to any
ground of which he is aware, or should be
aware, during the period when this remedy is
available to him. Final disposition of that
motion, or waiver of the opportunity to make
it, shall conclude all issues that reasonably
could have been presented in that proceeding.
The 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.
Id. at 856-857 (emphasis in original).
As Gross indicates, Matthews’ claims concerning the
justification defense and evidence to support that defense were
not proper for a CR 60.02 motion since those “issues . . . could
reasonably have been presented” in an RCr 11.42 motion.
Furthermore, any claim of ineffective assistance of counsel would
have to be addressed by a motion pursuant to RCr 11.42.
Matthews’ CR 60.02 motion is without merit.
We affirm the
judgment of the Fayette Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Danny R. Matthews, Pro Se
Burgin, KY
Hon. A. B. Chandler III
Attorney General
Hon. Vickie L. Wise
Assistant Attorney General
Frankfort, KY
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