PATTON (DWAN M.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 23, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000897-MR
DWAN M. PATTON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE IRV MAZE, JUDGE
ACTION NO. 02-CR-000153
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KELLER, JUDGES; LAMBERT,1 SENIOR JUDGE.
DIXON, JUDGE: Appellant, Dwan M. Patton, appeals pro se from an order of the
Jefferson Circuit Court denying his motion for relief pursuant to Cr 60.02. Finding
no error, we affirm.
1
Senior Judge Joseph Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
In May 2002, Appellant pled guilty in the Jefferson Circuit Court,
Division Twelve, to charges of second-degree escape and second-degree persistent
felony offender under Indictment 02-CR-0153. Appellant received an enhanced
sentence of ten years imprisonment that was probated for a period of five years. In
July 2003, Appellant pled guilty in the Jefferson Circuit Court, Division Six, to
charges of flagrant non-support and PFO II under Indictment 03-CR-0944.
Appellant was sentenced to five years on the non-support charge enhanced to ten
years by virtue of the PFO II charge. However, rendition of the judgment of
sentence was withheld and Appellant was placed on probation for a period of five
years subject to numerous conditions.
On March 16, 2005, Probation and Parole reported that Appellant had
violated the terms of his probation by assaulting a police officer, assaulting his
seven-year-old daughter, failing to pay both child support and supervision fees, and
failing to report to his probation officer. As a result, on March 28, 2005, the
Commonwealth filed a motion to revoke probation. Although the motion
contained both docket numbers and was filed in both divisions, it sought to
“revoke probation granted herein on the 17th day of June, 2002, on the charges of
Escape II, Persistent Felony Offender II.”
At an April 27, 2005, hearing, the Division Twelve trial judge noted
that all parties had agreed to continue the revocation proceedings to allow
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Appellant to retain counsel. The trial judge specifically noted in the docket that the
hearing would be continued until after a revocation hearing scheduled in Division
Six.
Following a hearing in Division Six,2 the trial court revoked
Appellant’s probation and sentenced him to a period of “ten (10) years on
Indictment 02-CR-0153 and five (5) years on Indictment 03-CR-0944 to be served
consecutively for a total of fifteen (15) years . . . .” Appellant did not file a direct
appeal from the trial court’s judgment. However, in March 2009, Appellant filed a
pro se CR 60.02 motion arguing that the Division Six trial judge lacked
jurisdiction to revoke his probation in Case No. 02-CR-0153 because the case was
presided over by the Division Twelve trial judge. Appellant also requested the
appointment of counsel. In an order dated April 21, 2009, the trial court denied
Appellant relief, finding that the issue could have been raised via direct appeal or
in an RCr 11.42 motion and, notwithstanding the procedural deficiency,
Appellant’s jurisdictional argument was without merit. Appellant thereafter
appealed to this Court.
As he did in the trial court, Appellant maintains that he was denied
due process during the revocation hearing because it was held in a division of the
circuit court that lacked jurisdiction. Appellant believes that even though the
Division Six court had subject matter jurisdiction, it lacked the authority to revoke
2
It is unclear from the record on what date the hearing actually occurred. The docket notation
indicates it was scheduled for May 16th, Appellant claims it was held on May 23rd, and the trial
court’s final order states the hearing was conducted on January 12th. It is clear however, that the
final order revoking probation in both cases was entered on May 31, 2005.
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his probation in Case No. 02-CR-0153 because the case was originally assigned to
Division Twelve.
Our standard of review in a denial of a CR 60.02 motion is abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). The test
for abuse of discretion is “whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth
v. English, 993 S.W.2d 941, 945 (Ky. 1999). After reviewing the record herein,
we find that the trial court did not abuse its discretion in denying Appellant's CR
60.02 motion.
CR 60.02 provides:
On 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.
Application of the Civil Rules is required in criminal cases by RCr 13.04. This
allows CR 60.02 motions to be used by criminal defendants to present additional
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issues not specifically available through direct appeals or RCr 11.42 motions.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). However, CR 60.02
motions are limited to afford special and extraordinary relief not available in other
proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997), cert.
denied, 521 U.S. 1130 (1997). The rule is not intended to provide an avenue for
defendants to relitigate issues which could have been presented in a direct appeal
or an RCr 11.42 proceeding. Id. Further, a movant must demonstrate why he is
entitled to this special, extraordinary relief. Finally, before 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.
Appellant sought relief under CR 60.02(e)-(f), which requires any
motion to be brought within a “reasonable time.” Yet, Appellant did not file his
CR 60.02 motion until almost four years after the trial court revoked his probation.
Under these circumstances, we agree that motion was not timely filed.
Furthermore, Appellant’s claim is not cognizable under CR 60.02
because it could have been raised on direct appeal from the probation revocation,
See e.g. Robinson v. Commonwealth, 86 S.W.3d 54 (Ky. App. 2002), or in an RCr
11.42 motion. “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.” McQueen, 948 S.W.2d at
416 (citations omitted). Appellant’s arguments are not of the extraordinary nature
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as is contemplated by CR 60.02. As such, the trial court properly denied his
motion for post-conviction relief.
The order of the Jefferson Circuit Court denying Appellant’s CR
60.02 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dwan M. Patton, Pro Se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky
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