WILLIAM D. WILSON v. COMMONWEALTH OF KENTUCKY

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RENDERED: March 5, 1999; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1998-CA-000247-MR WILLIAM D. WILSON APPELLANT APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN MINTON, JR., JUDGE ACTION NO. 84-CR-00624 v. COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING * * * * * * * * * * BEFORE: DYCHE, EMBERTON, and GARDNER, JUDGES. GARDNER, Judge. William Wilson (Wilson) appeals pro se from an order of the Warren Circuit Court denying his motions seeking to vacate the judgment filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26 and 11.42, and Kentucky Rule of Civil Procedure (CR) 60.02. After review of the record, we affirm. In February 1985, Wilson was convicted by a jury of being an accomplice to arson in the second degree (Kentucky Revised Statute (KRS) 513.030 and 502.020) and being a persistent felony offender in the first degree (PFO I) (KRS 532.080). The trial court sentenced him consistent with the jury’s recommendations to ten years on the arson offense with the sentence being enhanced to twenty years on the PFO I conviction. Wilson filed a direct appeal of his conviction. In December 1995, the Kentucky Supreme Court dismissed the appeal because Wilson had escaped from custody while the direct appeal was pending. In April 1987, Wilson filed his first motion to vacate the judgment pursuant to RCr 11.42. In the motion, Wilson claimed that he received ineffective assistance of counsel on several grounds including counsel’s failure to seek recusal of the trial judge, to object to the jury instructions and to subpoena witnesses for a hearing on his motion for a new trial. Wilson also contended that the arson conviction violated due process because there was insufficient evidence to support the verdict. In a supplemental memorandum, Wilson alleged ineffective assistance of counsel for his attorney’s failure to request a competency evaluation of Wilson. Following an extensive evidentiary hearing on the motion, the circuit court judge1 denied the RCr 11.42 motion in a five page opinion and order in August 1988. Wilson filed an appeal of the denial of his RCr 11.42 motion. In June 1990, this Court affirmed the denial of the motion stating there was sufficient evidence to support the verdict of conviction and that defense counsel was 1 We note that the original trial judge had recused himself after Wilson filed a motion alleging bias, so a different judge handled the RCr 11.42 motion. -2- not constitutionally ineffective. The Kentucky Supreme Court denied discretionary review of this Court’s opinion. In October 1989, Wilson filed a motion to vacate the sentence arguing that one of his prior felony convictions was improperly used to support the PFO I charge. On October 25, 1989, the trial court denied the motion as a successive RCr 11.42 motion. Wilson did not appeal the trial court’s order. In February 1990, Wilson filed a “Petition to Suspend Further Execution of Sentence” alleging the jury had been informed improperly that a major prosecution witness had already pled guilty to arson. On February 13, 1990, the trial court denied the motion on the merits even though it noted that Wilson had already filed two prior post-judgment motions. The trial court later denied a motion to reconsider. On March 9, 1990, Wilson filed a motion for concurrent sentencing asking the circuit court to amend his sentence by ordering it to run concurrently with the sentence for a subsequent conviction. Four days later, on March 12, 1990, Wilson filed another motion to suspend further execution of sentence arguing the PFO I sentence was enhanced improperly. The trial court summarily denied the motion for a concurrent sentence, and denied the motion to suspend the sentence by treating it as a successive motion under RCr 11.42(3). The court also noted that Wilson had raised the exact same issue challenging the validity of the PFO I charge in an earlier motion. -3- In July 1990, Wilson filed a motion for relief pursuant to CR 60.02 alleging ineffective assistance of counsel, insufficiency of the evidence, and prosecutorial vindictiveness. On July 27, 1990, the trial court denied the motion on the merits. Wilson filed an appeal. In an April 1991 order affirming the denial, this Court noted that Wilson was appealing his sixth post-conviction motion to vacate the judgment. This Court held that Wilson could have raised the issues in his CR 60.02 motion in the earlier RCr 11.42 motions, and therefore his CR 60.02 motion was procedurally barred. In February 1992, Wilson filed another motion to vacate the sentence pursuant to CR 60.02 and CR 61.02. On February 11, 1992, the trial court denied the motion on the merits stating that it did not present sufficient special circumstances to justify relief under CR 60.02. On August 20, 1992, this Court affirmed the trial court’s denial on procedural grounds because the CR 60.02 motion presented issues that could have been raised in the earlier collateral motions. In March 1995, Wilson filed a motion to modify sentence brought pursuant to RCr 13.04 and CR 60.02 seeking a reduction in the sentence because it was “cruel and harsh.” In April 1995, Wilson filed a motion to supplement seeking to include additional grounds to the motion. On July 25, 1995, the trial court denied the motion noting that Wilson had not presented any new grounds to justify relief under CR 60.02. This Court granted the Commonwealth’s motion to dismiss the appeal, and the Kentucky -4- Supreme Court denied discretionary review of this Court’s dismissal order. In August 1996, Wilson filed another motion to vacate pursuant to RCr 11.42 on the grounds of ineffective assistance of counsel, prosecutorial misconduct before the grand jury, and insufficiency of the evidence with respect to the PFO I conviction. After the trial court appointed counsel to represent Wilson on this motion, counsel filed a supplemental argument challenging the indictment because one of the witnesses before the grand jury had not been given the oath mandated by statute. The Commonwealth filed a response. On October 9, 1997, Wilson filed a second supplement to his motion requesting that the trial court alter the sentence by ordering it to run concurrent with the sentence on a subsequent conviction. On October 28, 1997, Wilson filed a third document supplementing the RCr 11.42 motion, and seeking relief under the palpable error rule of RCr 10.26. In this document, Wilson raised several grounds that had been raised in earlier motions including ineffective assistance of counsel and prosecutorial misconduct. On January 15, 1998, the trial court denied the pending motions as successive motions that raised no new issues. This appeal followed. The successive motion principle or doctrine is wellestablished in Kentucky. In Hampton v. Commonwealth, Ky., 454 S.W.2d 672, 673 (1970), the Court stated, “the courts have much more to do than occupy themselves with successive ‘reruns’ of RCr 11.42 motions stating grounds that have or should have been presented earlier.” See also Shepherd v. Commonwealth, Ky., 477 -5- S.W.2d 798 (1972). Similarly, in Bell v. Commonwealth, Ky., 396 S.W.2d 772, 772-73 (1965), the Court indicated that “it is absolutely absurd to take the time of the courts with continuous filing and refiling of motions for the same relief under the same proceedings.” In Lycans v. Commonwealth, Ky., 511 S.W.2d 232 (1974), the Court held that the successive motion principle applied to a second RCr 11.42 motion, even though the appeal of the denial of the first motion was dismissed on procedural grounds for failure to perfect the appeal. In Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983), the Kentucky Supreme Court established the procedure for appellate review in criminal cases. The Court stated that the structure for appellate review is not haphazard or overlapping. Id. at 856. It held that a criminal defendant must first bring a direct appeal when available, then utilize RCr 11.42 by raising every error of which he should be aware, and utilize CR 60.02 only for extraordinary situations not otherwise subject to relief by direct appeal or by way of RCr 11.42. Id. More recently in McQueen v. Commonwealth, Ky., 948 S.W.2d 415, 416 (1997) cert. denied, ___ U.S. ___, 117 S. Ct. 2325, 138 L. Ed. 2d 1035 (1997), the court reaffirmed the procedural requirements set out in Gross, when it said: A defendant who is in custody under sentence or on probation, parole or conditional discharge, is required to avail himself of RCr 11.42 as to any ground of which he is aware, or should be aware, during the period when the remedy is available to him. Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could “reasonably have been presented by direct appeal or RCr 11.42 -6- proceedings.” RCr 11.42(3); Gross v. Commonwealth, supra, at 855, 856. The obvious purpose of this principle is to prevent the relitigation of issues which either were or could have been litigated in a similar proceeding. In addition, where a claim of ineffective assistance of counsel is litigated in an RCr 11.42 proceeding, a defendant cannot raise the issue of ineffective assistance in a subsequent RCr 11.42 motion. See McQueen v. Commonwealth, Ky., 949 S.W.2d 70, 71 (1997) cert. denied, ___ U.S. ___, 117 S. Ct. 2536, 138 L. Ed. 2d 1035 (1997). In the case at bar, Wilson challenged his convictions for being an accomplice to arson and being a PFO I based on ineffective assistance of counsel, prosecutorial misconduct, a defective indictment due to irregularities in the grand jury proceeding, lack of personal jurisdiction and insufficient evidence to support the arson and PFO I convictions. The record demonstrates that Wilson has filed numerous post-judgment motions under RCr 11.42 and CR 60.02 raising the same issues involved in the current appeal. This Court has already rendered an opinion rejecting several of Wilson’s complaints on the merits and has dismissed two appeals based on the successive motions principle and held that Wilson had exhausted his remedies by way of collateral attack of his arson and PFO I convictions. Despite the denial of several of his motions on procedural grounds, the trial court also rejected most of the issues raised in the motions in the current appeal on the merits in the earlier motions. The successive motions principle clearly applies to bar this latest in the long series of post-7- judgment motions filed by Wilson. The trial court did not err in denying these motions. For the above stated reasons, we affirm the order of the Warren Circuit Court. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: William D. Wilson, Pro Se Eddyville, Kentucky A. B. Chandler III Attorney General Joseph R. Johnson Assistant Attorney General Frankfort, Kentucky 40601 -8-

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