DONALD R. NEWCOMB v. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
DONALD R. NEWCOMB
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE PAUL BARRY JONES, JUDGE
ACTION NO. 92-CR-00061
COMMONWEALTH OF KENTUCKY
** ** ** ** **
GUIDUGLI, JOHNSON AND KNOPF, JUDGES.
Donald Ray Newcomb (Newcomb) appeals an order
entered by Special Judge, Honorable Paul Barry Jones, in the
Pulaski Circuit Court on March 11, 1999, denying his CR 60.02
The special judge determined that Newcomb had failed to
produced any evidence “to support a mistake, inadvertence,
surprise, or excusable neglect, newly discovered evidence, which
by due diligence could have been discovered, perjury, falsified
evidence or fraud affecting the proceeding, or any other valid
reason of extraordinary nature justifying the relief requested.
The court also found that Newcomb’s CR 60.02 motion was not
We agree with the findings of the trial court and,
Newcomb was indicted by the Pulaski County Grand Jury
on March 25, 1992, on charges of first-degree assault (KRS
508.010) and of being a persistent felony offender (PFO) first
degree (KRS 532.080).
After a trial by jury, he was convicted of
both charges and sentenced to twenty (20) years imprisonment.
His conviction was affirmed by the Kentucky Supreme Court in an
unpublished memorandum opinion on May 24, 1994 (Justice Stumbo
dissenting without opinion).
In the direct appeal, Newcomb
raised ten (10) alleged errors that occurred during his trial.
On September 16, 1994, Newcomb filed a RCr 11.42
motion to vacate his judgment alleging generally that he received
ineffective assistance of counsel.
Specifically, he set forth
four (4) areas where he believed his trial counsel to be
The trial court’s denial of his motion, without a
hearing, was affirmed by the Court of Appeals in an unpublished
opinion rendered December 22, 1995.
Thereafter, Newcomb filed a motion styled “Petition for
Court Order to Correct Presentence Investigation Report.”
the trial court denied this motion.
Again, the trial court’s
order was affirmed by the Court of Appeals in an unpublished
opinion rendered November 26, 1997.
Newcomb’s motion to the
Kentucky Supreme Court for discretionary review was denied
February 11, 1998.
We now come to Newcomb’s CR 60.02 motion, which is the
subject of this appeal.
Said motion was filed on March 16, 1998.
A special judge was appointed pursuant to Newcomb’s repeated
requests alleging that the trial judge was guilty of both “bias”
and “misconduct” towards him.
Special Judge Paul Barry Jones
denied Newcomb’s request for an evidentiary hearing and further
denied his CR 60.02 motion in an order entered March 11, 1999.
This appeal followed.
Newcomb’s appeal can be affirmed on several legal
First, as the special trial judge stated, “this
motion was not timely filed.”
CR 60.02 provides:
On a 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: (a) mistake, inadvertence, surprise
or excusable neglect; (b) newly discovered
evidence which by due diligence could not
have been discovered in time to move for a
new trial under Rule 59.02; (c) perjury or
falsified evidence; (d) fraud affecting the
proceedings, other than perjury or falsified
evidence; (e) the judgment is void, or has
been satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (f) any
other reason of an extraordinary nature
justifying relief. The motion shall be made
within a reasonable time, and on grounds (a),
(b), and (c) not more than one year after the
judgment, order, or proceeding was entered or
taken. A motion under this rule does not
affect the finality of a judgment or suspend
its operation. (emphasis added).
Obviously, under (a), (b) and (c), Newcomb would have had to file
his motion within one (1) year of the entry of the judgment
(March 30, 1993), which he did not do.
Under (d), (e), or (f),
Newcomb must file within a “reasonable time.”
The trial court
held, and we agree, that six years was not a reasonable time.
This is true, especially in light of the fact that Newcomb has
not alleged any specific grounds sufficient to comply with the
provisions of (d), (e) or (f).
Newcomb’s appeal must also fail in that it is an
impermissible consecutive collateral attack.
In Gross v.
Commonwealth, Ky., 648 S.W.2d 853, (1983), the Supreme Court held
that a defendant must seek RCr 11.42 relief before seeking CR
More particularly, the Court stated as follows:
The structure provided in Kentucky for
attacking the final judgment of a trial court
in a criminal case it 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... .
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
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
Id. at 856-57.
Each issue presented by Newcomb was or should have been
raised in either his direct appeal to the Kentucky Supreme Court
or in his previous RCr 11.42 motion.
continuous bites of the same apple.
Newcomb is not entitled to
Despite his claims to the
contrary, Newcomb has not presented any new claims, especially
claims which demonstrate special or extraordinary relief, which
could not or should not have been raised in his previous motions
For the foregoing reasons, the order of the Special
Judge of the Pulaski Circuit Court denying Newcomb’s CR 60.02
motion is affirmed.
KNOPF, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Donald R. Newcomb
A. B. Chandler, III
Tami Allen Stetler
Assistant Attorney General