SMITH (HARRY L.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000095-MR
HARRY L. SMITH
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, JUDGE
ACTION NO. 86-CR-00193
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND KELLER, JUDGES; ISAAC,1 SENIOR JUDGE.
ISAAC, SENIOR JUDGE: Harry L. Smith appeals from an order denying his
motion for post-conviction relief pursuant to Kentucky Rule of Civil Procedure
(CR) 60.02. He argues that: (1) his sentence is illegal because he received a life
sentence in state court that was ordered to run consecutively with the life sentence
he received in federal court; and (2) his subsequent state prosecution violated
double jeopardy protections. We affirm.
1
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
In 1987, a federal jury found Smith guilty of Theft of a Controlled
Substance Resulting in Murder, Conspiracy to Obtain a Controlled Substance by
Robbery, Carrying a Firearm in Furtherance of a Crime of Violence, and Intent to
Possess Narcotics for the Purposes of Distribution. For the respective convictions,
Smith received a sentence of life imprisonment, a term of ten years of
imprisonment, a term of five years of imprisonment, and a term of twenty years of
imprisonment with all terms to be served consecutively.
Subsequent to the federal trial, Smith was tried by jury in the
Campbell Circuit Court and found guilty of capital murder. He received a sentence
of life imprisonment without the benefit of parole for a minimum of twenty-five
years. The trial court ordered that the state sentence run consecutively to the
previously imposed federal sentence. The Supreme Court of Kentucky affirmed
his state court conviction on direct appeal in an unpublished opinion. Smith v.
Commonwealth, 88-SC-67-MR (rendered February 16, 1989). On May 1, 2009,
Smith filed a motion for post-conviction relief pursuant to CR 60.02, which the
trial court denied. This appeal followed.
Smith argues that he is entitled to relief because the trial court
impermissibly ordered his life sentence to run consecutively to the life sentence he
received in federal court. He also argues that his state prosecution was pursued in
violation of double jeopardy protections.
CR 60.02 “is designed to provide relief where the reasons for the
relief are of an extraordinary nature.” Ray v. Commonwealth, 633 S.W.2d 71, 73
-2-
(Ky.App. 1982). “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 . . . .” McQueen v. Commonwealth, 948 S.W.2d 415,
416 (Ky. 1997) (internal quotation marks omitted). 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.” Id.
The sentencing and double jeopardy issues could both have been
raised on direct appeal or on a motion for relief pursuant to RCr 11.42, had Smith
chosen to pursue this remedy. Moreover, Smith did not file his CR 60.02 motion
for over twenty years after his direct appeal became final. This is simply an
unreasonable delay under the circumstances of this case. See Gross v.
Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)(holding five years did not
constitute a reasonable time for filing); Ray, supra, (holding twelve years did not
constitute a reasonable time for filing).
Accordingly, the order of the Campbell Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harry L. Smith, pro se
Eddyville, Kentucky
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
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