JAMES FRANK DUNAWAY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002275-MR
JAMES FRANK DUNAWAY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 98-CR-002133
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, MINTON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
James Frank Dunaway brings this pro se appeal
from an October 11, 2002, order of the Jefferson Circuit Court
denying Dunaway’s Ky. R. Civ. P. (CR) 60.02 motion requesting a
new trial.
We affirm.
In August 1998, Dunaway was indicted by the Jefferson
County Grand Jury upon three counts of robbery in the first
degree and with being a persistent felony offender in the first
degree.
The indictment also charged two co-defendants (Terrance
Lee Tabb and Russell Otis Riggs) with, inter alia, three counts
of robbery in the first degree.
The two co-defendants
ultimately entered guilty pleas.
Dunaway was tried before a
jury, and the jury convicted him of two counts of robbery in the
first degree.
Before sentencing, Dunaway accepted a plea
bargain offered by the Commonwealth; whereby, he would plead
guilty in exchange for a twenty-year sentence.
Thereafter,
appellant entered a conditional plea of guilty reserving the
right to appeal the issue of whether he received a speedy trial.
On August 26, 1999, Dunaway was sentenced to a total of twenty
years’ imprisonment.
Dunaway’s direct appeal was affirmed by
the Kentucky Supreme Court in Appeal No. 1999-SC-0886-MR.
On February 2002, Dunaway filed a CR 60.02 motion
requesting a new trial.
Therein, he alleged that a fellow
inmate, Michael Ford, had confessed to one of the robberies for
which he was convicted and had signed an affidavit to that
effect.
The circuit court held an evidentiary hearing and
several witnesses testified.
By order entered October 11, 2002,
the Jefferson Circuit Court denied Dunaway’s CR 60.02 motion.
This appeal follows.
Dunaway contends the circuit court abused its
discretion in denying his CR 60.02 motion.
Specifically,
Dunaway claims the circuit court committed error by holding that
Michael Ford’s confession lacked credibility and by determining
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that such confession would not have changed the result of the
jury’s determination of appellant’s guilt.
We disagree.
It is well established that the circuit court is
vested with broad discretion in determining the validity of a CR
60.02 motion and that such discretion will not be disturbed on
appeal except for a clear abuse thereof.
932 S.W.2d 359 (Ky. 1996).
Brown v. Commonwealth,
The Supreme Court has held that
“relief should not be granted, pursuant to Rule 60.02(f), unless
the new evidence, if presented originally, would have, with
reasonable certainty, changed the result.”
Id. at 362.
At the evidentiary hearing upon the CR 60.02 motion,
Detective Duane Colebank was called to testify on behalf of the
Commonwealth.
He stated that Dunaway’s ex-girlfriend called him
and stated that Dunaway had persuaded someone at the prison to
confess to the robbery.
Detective Colebank further testified
that he requested prison officials to search Michael Ford’s
cell.
Additionally, the detective testified that the cash
counter at the robbed premises was not straight but was
circular, like a horse shoe.
From the video of the robbery,
Detective Colebank stated it was clear that the robber entered
from one direction and left in the other direction.
Upon searching Ford’s cell, discovery from appellant’s
case was found.
Specifically, a picture of the weapon used in
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the robbery, an interview with Terrance Tabb about the robbery
and pictures of Russell Riggs were found within Ford’s cell.
Michael Ford also testified at the evidentiary
hearing.
parole.
He stated that he was serving a life sentence without
He had entered a guilty plea to two counts of
complicity to murder and two counts of kidnapping.
As to the
robbery, Ford testified that he entered and left the premises in
the same direction.
He also testified that the cashier counter
at the premises was straight, not round.
It is clear that Ford’s testimony concerning his
alleged involvement in the robbery contained a multitude of
inaccuracies.
For example, he testified that the counter was
straight, when in fact it was not, and he testified that when
committing the robbery he walked into the premises and left the
premises from the same direction.
This testimony contradicted
the video taken at the time of the robbery.
Also, Ford is
currently serving a life sentence without parole and a
conviction for this robbery would add no additional prison time
to his sentence.
We are particularly impressed by the fact that
discovery from Dunaway’s case was found in Ford’s cell at the
prison.
Ford gave no explanation for this discovery to the
circuit court.
Taken together, we must conclude, as did the
circuit court, that the new evidence of Ford’s confession would
not within a reasonable degree of certainty have changed the
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jury’s finding of guilt.
See id.
Accordingly, we are of the
opinion the circuit court did not err by denying Dunaway’s CR
60.02 motion.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James F. Dunaway, Pro Se
Beattyville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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