STORY (DONALD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 8, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001253-MR
DONALD STORY
v.
APPELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 00-CR-00011
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES.
CLAYTON, JUDGE: Appellant, Donald Story, plead guilty to two counts of
wanton murder and driving under the influence on December 5, 2001. A year
later, Story filed a motion to alter, amend or vacate pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42 and/or Kentucky Rules of Civil Procedure ( CR)
60.02(e)(f). In his motion, Story argued that he had ineffective assistance of
counsel. He contended that his counsel failed to investigate his case fully and that
counsel failed to request funds to hire an independent blood expert. Story also
asserted that his counsel should have suppressed blood evidence and advised him
of the defense of reckless homicide since the evidence did not meet the elements
required for wanton murder.
The trial court denied Story’s motion and this Court affirmed the
denial. The Supreme Court of Kentucky denied discretionary review of the case
on March 9, 2005. On February 24, 2010, Story filed a second CR 60.02 and
60.03 motion, requesting the trial court amend or correct its judgment. In this
motion, Story argued that the Commonwealth had not provided him with discovery
he needed to have a post-conviction review of the evidence in his case. The trial
court also denied this motion holding that the delay in filing the motion was too
long from the initial judgment. Story now appeals the trial court’s decision
denying his motion pursuant to CR 60.02 and 60.03.
STANDARD OF REVIEW
We review the denial of a CR 60.02 motion under an abuse of
discretion standard. White v. Com., 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v.
Com., 932 S.W.2d 359, 361 (Ky. 1996). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Com. v. English, 993 S.W.2d 941, 945
(Ky. 1999). Therefore, we affirm the lower court’s decision unless there is a
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showing of some “flagrant miscarriage of justice.” Gross v. Com., 648 S.W.2d 853,
858 (Ky. 1983).
DISCUSSION
In denying Story’s motion, the trial court held that:
[U]nder CR 60.02, the relief must be sought within a
reasonable time, and the Defendant has provided no
sworn statement as to when he became aware that this
material had not been given to him. He merely
speculates that the driver of the Rogerses’ [sic] vehicle
could have been intoxicated and that prescription
medications could have been present in their vehicle, that
the Commonwealth never informed him of what items
were removed from the vehicle, and that such
information was not reflected in the police reports. He
further alleges that the Commonwealth never informed
him of any accident reconstruction report ever being
made and never provided him with the autopsy reports,
toxicology reports, or accident reconstruction report. He
argues that without autopsy reports, the accident has not
been shown to have caused the Rogerses’ [sic] death. As
previously stated, relief must be sought under a CR 60.02
Motion within a reasonable time, and the Defendant has
not explained why he waited more than 8 years from the
entry of the Judgment, or 5 years from the Court of
Appeals affirming the denial of the RCr 11.42 Motion
and the Supreme Court denying discretionary review, to
mention this exculpatory evidence. The Commonwealth
does not have an obligation to provide potentially
exculpatory material to a defendant, and it has been held
that the failure to do so deprives the defendant of a fair
trial (Citation omitted); however, the mere possibility
that undisclosed information may have helped the
defendant or otherwise affected the outcome does not
give rise to a Brady violation (Citation omitted).
....
This Court concludes that the Defendant failed to
raise the alleged grounds for relief within a reasonable
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time (8 years or 5 years, whichever one prefers), as he
has not stated in his Motions when he acquired the
exculpatory information.
Opinion at 4-5.
We agree with the trial court. Story’s contentions should have been brought
when he filed his original RCr 11.42 motion. If he was unaware of the evidence at
that time, he should have set forth in his CR 60.02/60.03 motion when he became
aware of the Commonwealth’s alleged withholding of exculpatory evidence. Story
had done neither. Clearly, the trial court’s decision that too much time had elapsed
between the original guilty plea and the current motion was not an abuse of
discretion. Thus, we affirm the decision of the trial court denying Story’s CR
60.02 and 60.03 motion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald Story, Pro Se
Eddyville, Kentucky
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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