JOHN HARVEY TAYLOR v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 11, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
1998-CA-000783-MR
JOHN HARVEY TAYLOR
v.
APPELLANT
APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 83-CR-00032
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE: BUCKINGHAM, EMBERTON, AND SCHRODER, JUDGES.
BUCKINGHAM, JUDGE.
John Harvey Taylor (Taylor) appeals from an
order of the Rockcastle Circuit Court denying his motion to
modify, amend or vacate his sentence brought pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42 and 13.04, Kentucky Rule
of Civil Procedure (CR) 60.02, and Kentucky Revised Statutes
(KRS) 532.070 and 532.110.
We affirm.
On March 14, 1984, a jury convicted Taylor of murder
and recommended a sentence of life in prison.
At the conclusion
of the trial, the court entered a document entitled Trial Verdict
and Judgment describing the trial proceeding, setting out the
jury verdict, and postponing entry of a final judgment and
sentence pending review of a presentence investigation report
(PSI).
On March 21, 1984, Taylor’s attorney filed a motion for
judgment notwithstanding the verdict (J.N.O.V.) and a motion for
a new trial.
On April 6, 1984, Taylor appeared in circuit court with
his attorney for the sentencing hearing.
At that time, the trial
judge afforded Taylor an opportunity to comment on the contents
of the PSI and the imposition of sentence.1
The trial court then
sentenced Taylor to life in prison consistent with the jury’s
recommendation.
In September 1985, the Kentucky Supreme Court
affirmed the conviction on direct appeal in an unpublished
opinion.
Taylor v. Commonwealth, 84-SC-1045-MR (rendered
September 5, 1985).
In September 1986, Taylor filed a post-conviction
motion pursuant to RCr 11.42 challenging his conviction in which
he raised several issues including ineffective assistance of
counsel and the improper admission into evidence of several
statements he had made to the police.
In November 1986, the
trial court denied the RCr 11.42 motion in an order addressing
each of the issues presented in the motion.
On June 12, 1987,
this court affirmed the circuit court’s denial of the RCr 11.42
motion.
Taylor v. Commonwealth, 86-CA-2671-MR (unpublished).
On June 20, 1987, Taylor filed a motion for
modification of sentence under KRS 532.070 seeking a reduction in
1
The hearing also included arguments on Taylor’s motions for
a J.N.O.V. and new trial.
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his sentence.
The trial court denied the motion as untimely
stating that it no longer had jurisdiction.
In October 1987,
Taylor filed a motion to vacate the judgment pursuant to CR 60.02
based on newly-discovered evidence.
The trial court summarily
denied the CR 60.02 motion.
In May 1992, Taylor filed a second motion to vacate the
judgment pursuant to CR 60.02, wherein Taylor again alleged that
he had received ineffective assistance of counsel.
On May 18,
1992, the trial court denied the motion because the issues raised
in the motion had already been rejected by the Kentucky Supreme
Court and Court of Appeals in their opinions on the earlier
motions.
On December 29, 1993, this court affirmed the order of
the circuit court denying the motion because it was a successive
motion that raised no new issues.
Taylor v. Commonwealth, 92-CA-
1442-MR (unpublished).
On January 16, 1998, Taylor filed a motion to modify,
amend or vacate his sentence pursuant to RCr 11.42, RCr 13.04, CR
60.02, KRS 532.070, and KRS 532.110.
In the motion, Taylor
argued that the final judgment entered in April 1984 was void ab
initio because it was entered outside a ten-day jurisdictional
time period following the conviction. He also requested
appointment of counsel and an evidentiary hearing.
In a four-
page order, the trial court denied the motion on both procedural
and substantive grounds and also denied his request for
appointment of counsel and an evidentiary hearing.
followed.
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This 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 and 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, cert. denied, ___ U.S. ___, 117 S. Ct. 2535, ___ L. Ed. 2d
___ (1997), the supreme 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
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 summary, CR
60.02 is not a separate avenue of appeal to
be pursued in addition to other remedies, but
is available only to raise issues which
cannot be raised in other proceedings.
See also Commonwealth v. Gross, Ky., 936 S.W.2d 85, 88 (1997).
In the case sub judice, Taylor’s current motion is
procedurally barred under the successive motions principle.
Taylor has brought a direct appeal and also has filed several
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post-judgment motions under RCr 11.42, CR 60.02, and KRS 532.070.
The current appeal involves his second RCr 11.42 motion and his
third CR 60.02 motion.
Taylor included a laundry list of court
rules and statutes in an attempt to justify the trial court’s
exercise of jurisdiction over this collateral attack on his
conviction.
In any event, the issue presented in the current
motion should have been raised in the initial RCr 11.42 motion or
on direct appeal.
In fact, this court found that a previous
CR 60.02 motion by Taylor was procedurally barred as it was a
successive motion.
Thus, Taylor cannot utilize RCr 11.42 or CR
60.02 to circumvent established criminal appellate procedure and
obtain repeated review of an issue he should have presented
earlier.
In addition to the procedural bar, the trial court also
dismissed the motion on the merits.
We agree with the trial
court that the final judgment was not void.
Taylor’s argument
that the trial court lost jurisdiction to enter the April 1984
judgment and sentence because it occurred more than ten days
after the jury convicted him on March 14, 1984, is simply in
error.
A trial court generally does lose jurisdiction to
modify a judgment after ten days.
See, e.g., Commonwealth v.
Marcum, Ky., 873 S.W.2d 207, 211 (1994); Silverburg v.
Commonwealth, Ky., 587 S.W.2d 241, 244 (1979).
However, this
principle applies only to a substantive modification or amendment
of a final judgment.
Id.
See also Commonwealth v. Gross, supra.
A court retains jurisdiction to modify an interlocutory or non-
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final judgment.
(1953).
Commonwealth v. Bailey, Ky., 259 S.W.2d 49, 50
The March 14 judgment merely dealt with the trial
proceeding, including the jury’s verdict.
The jury’s sentence
recommendation is advisory and not binding on the trial court.
See Wombles v. Commonwealth, Ky., 831 S.W.2d 172, 176 (1992);
KRS 532.070.
In addition, Taylor filed timely motions for
J.N.O.V. and a new trial following the jury trial.
The March 14
judgment or order was not intended to be and did not constitute a
final judgment for purposes of applying the ten-day
jurisdictional time limitation.
Therefore, the trial court had
jurisdiction to enter the April final judgment and sentence.
Finally, Taylor argues that the trial court erred by
failing to conduct an evidentiary hearing and appoint counsel to
represent him on the motion.
As the Kentucky Supreme Court noted
in the recent case of Wilson v. Commonwealth, Ky., 975 S.W.2d
901, 904 (1998), with respect to RCr 11.42, a movant is not
automatically entitled to an evidentiary hearing.
An evidentiary
hearing is not required on an RCr 11.42 motion where the issues
raised in the motion are refuted on the record, or where the
allegations, even if true, would not be sufficient to invalidate
the conviction. See also Sanborn v. Commonwealth, Ky., 975 S.W.2d
905, 909 (1998); Harper v. Commonwealth, Ky., 978 S.W.2d 311, 314
(1998).
Furthermore, before a movant is entitled to a hearing on
a CR 60.02 motion, “he must affirmatively allege facts which, if
true, justify vacating the judgment and further allege special
circumstances that justify CR 60.02 relief.”
Commonwealth, 648 S.W.2d at 856.
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Gross v.
Similarly, a person is not entitled to appointment of
counsel for purposes of RCr 11.42 where the substantive claim is
refuted on the face of the record or appointment of counsel would
be futile.
Commonwealth v. Stamps, Ky., 672 S.W.2d 336, 339
(1984); Maggard v. Commonwealth, Ky., 394 S.W.2d 893, 894 (1965).
In addition, a movant has no entitlement to counsel on a CR 60.02
motion.
Gross, 648 S.W.2d at 857.
Taylor’s allegation that the
trial court lacked jurisdiction to issue the April 6 judgment is
refuted on the record, and the motion clearly was procedurally
barred; therefore, he was not entitled to either an evidentiary
hearing or the appointment of counsel.
For the foregoing reasons, we affirm the order of the
Rockcastle Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Harvey Taylor, Pro Se
Burgin, Kentucky
A. B. Chandler III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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