RUNYON (TERRY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 9, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000544-MR
TERRY RUNYON
v.
APPELLANT
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JUDGE
ACTION NO. 05-CR-00007
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND WINE, JUDGES.
DIXON, JUDGE: Terry Runyon, pro se, appeals from an order of the Estill
Circuit Court that denied his motion to set aside his guilty plea pursuant to CR
60.02(f). Finding no error, we affirm.
In March 2005, Runyon was indicted on charges of complicity to
murder, complicity to robbery first-degree, and complicity to tampering with
physical evidence arising from the March 2004, murder of his father-in-law at a
gas station in Irvine, Kentucky.1 In March 2006, the Commonwealth dismissed the
complicity to robbery charge in exchange for Runyon’s plea of guilty to the
remaining charges. Thereafter, Runyon was sentenced to twenty years’
imprisonment consistent with the plea agreement. In April 2007, Runyon sought
post-conviction relief pursuant to RCr 11.42. The trial court denied RCr 11.42
relief and that decision was affirmed by a panel of this Court.2
In January 2009, Runyon moved to set aside his conviction pursuant
to CR 60.02(f), alleging that his guilty plea was involuntary because, at the time of
his plea, he was unaware that evidence existed which proved alternative
perpetrators actually committed the crimes. The trial court denied Runyon’s
motion without a hearing, and this appeal followed.
Runyon alleges that he received a copy of his legal file from the
Department of Public Advocacy, and a secretary advised him she found some of
the paperwork behind a desk.3 The file contained police interviews with
individuals who named alternative perpetrators for the murder. Runyon alleges he
did not know that other suspects were named, and if he had known this
information, he would not have pled guilty. Runyon also asserts that, because the
1
Runyon’s wife at the time was also indicted for the same offenses relating to her father’s
murder. She ultimately pled guilty to facilitation to robbery and complicity to tampering with
physical evidence.
2
Runyon v. Commonwealth, 2007-CA-002207-MR (Oct. 24, 2008).
3
Runyon asserts that the secretary advised him that his trial counsel was no longer with DPA.
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documents were allegedly mislaid in the DPA office, his trial counsel could have
also been unaware of the alternative perpetrators. Runyon believes the trial court
erred by denying his CR 60.02 motion without an evidentiary hearing.
“The standard of review of an appeal involving a CR 60.02 motion is
whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d
83, 86 (Ky. App. 2000). “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.” McQueen v. Commonwealth, 948 S.W.2d
415, 416 (Ky. 1997). Finally, “[b]efore 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.”
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
This Court has previously reviewed the voluntariness of Runyon’s
guilty plea. The Commonwealth points out, in Runyon’s prior RCr 11.42 appeal to
this Court, he similarly argued his trial counsel was ineffective for failing to
introduce exculpatory evidence, consisting of three statements implicating
alternative perpetrators. Further, we note there is no allegation that the
Commonwealth wrongfully withheld this discovery, and the paperwork was
located in trial counsel’s file. These facts, coupled with Runyon’s similar
allegations in his RCr 11.42 appeal indicate he could have addressed this issue in a
prior proceeding. In light of the extraordinary nature of CR 60.02(f), we conclude
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Runyon’s claim is without merit. Accordingly, the trial court did not abuse its
discretion by denying Runyon’s motion without an evidentiary hearing.
For the reasons stated herein, the order of the Estill Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Terry Runyon, Pro Se
Burgin, Kentucky
Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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