ERIC CUNNINGHAM v. COMMONWEALTH OF KENTUCKY

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RENDERED: September 25, 1998: 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals No. 1997-CA-001102-MR ERIC CUNNINGHAM APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE THOMAS J. KNOPF, JUDGE ACTION NO. 93-CR-756 v. COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING * BEFORE: * * * * DYCHE, EMBERTON and JOHNSON, Judges. JOHNSON, JUDGE: Eric C. Cunningham (Cunningham) appeals from orders of the Jefferson Circuit Court which denied his Kentucky Rules of Civil Procedure (CR) 60.02 and 60.03 motion for modification or reduction of sentence and motions for appointment of counsel, an evidentiary hearing and production of documents. We affirm. In March 1993, Cunningham was indicted on one count of assault in the second degree for intentionally shooting Dajuan R. Best (Best) in the lower abdomen. (KRS) 508.020. Kentucky Revised Statutes Cunningham pleaded guilty to one count of assault under extreme emotional disturbance for which the Commonwealth recommended a prison sentence of three years. KRS 508.040. On August 24, 1993, final judgment was entered and Cunningham was sentenced to three years in prison. Cunningham was granted shock probation on October 21, 1993, after serving 30 days of his three-year sentence. In 1995, Cunningham was arrested for various offenses resulting in the revocation of his shock probation on April 12, 1996. Cunningham was ordered to serve the remainder of his three-year sentence. In April 1997, Cunningham filed a motion for modification or reduction of sentence pursuant to CR 60.02 and 60.03. This motion was denied by an order of the Jefferson Circuit Court entered on April 9, 1997. Cunningham then filed motions for appointment of counsel, an evidentiary hearing and production of documents. These motions were denied on April 17, 1997. This appeal followed. Cunningham contends that he possesses “new” evidence which proves that he acted in self-defense when he shot Best in 1993. The new evidence presented by Cunningham consists of an affidavit by Cunningham, an unsworn statement by an individual named Scott Malone, and the indictment of the victim, Best, for bank robbery in 1994. CR 60.02 provides six specific grounds for modifying a final judgment. The ground relevant to this case is subsection (b) which states as follows: “newly discovered evidence which by due diligence could not have been discovered in time to move for -2- a new trial under Rule 59.02.” A motion pursuant to subsection (b) must be filed within one year of the entry of final judgment. This one-year limitation cannot be avoided by using the residual ground found in subsection (f). See Tartar v. Medley, Ky., 371 S.W.2d 480, 481 (1963) (holding that the one-year limitation on a motion pursuant to subsection (c) cannot be avoided through the use of ground (f)). Cunningham was sentenced and final judgment was entered on August 24, 1993, more than three years before the filing of his CR 60.02 motion. Thus, Cunningham’s claim is barred by the one-year limitation provided by CR 60.02. Cunningham has also claimed relief pursuant to CR 60.03. However, CR 60.03 specifically provides that “[r]elief shall not be granted in an independent action if the ground of relief sought . . . would be barred because not brought in time under the provisions of [CR 60.02].” Thus, his CR 60.03 motion is also time barred. Even if Cunningham’s motion had been timely filed, the evidence he has presented does not justify relief under CR 60.02(b). In order to obtain relief, the newly discovered evidence must not have been discoverable in time to move for a new trial under Rule 59.02, i.e. discoverable within ten days after the entry of final judgment. Also, the evidence must be “of such character as would make reasonably certain a different judgment.” Carter v. Spurlock, Ky., 282 S.W.2d 838, 840 (1955). The evidence referred to in Cunningham’s affidavit and Malone’s -3- unsworn statement could have easily been introduced at a trial in the form of testimony. of CR 60.02. Thus, it does not meet the requirements The other evidence offered by Cunningham to prove he acted in self-defense is Best’s indictment for bank robbery in 1994. Since Cunningham pleaded guilty in 1993, obviously, evidence of a bank robbery that occurred in 1994 “would [not] make reasonably certain a different judgment” in 1993. Id. Further, it must be remembered that Cunningham pleaded guilty, thus waiving his constitutional rights to a trial by jury and to produce evidence and call witnesses. Cunningham has not challenged the validity of his guilty plea. Cunningham also argues that the trial court erred in denying his motions for appointment of counsel, an evidentiary hearing and production of documents relevant to his case. The trial court was not required to appoint counsel for Cunningham’s CR 60.02 motion. S.W.2d 853, 857-858 (1983). Gross v. Commonwealth, Ky., 648 Thus, it did not err in denying Cunningham’s motion for appointment of counsel. Cunningham was only entitled to an evidentiary hearing on his motion if he “affirmatively allege[d] facts which, if true, justif[ied] vacating the judgment and further allege[d] special circumstances that justif[ied] CR 60.02 relief.” 856. Id. at The trial court did not err in denying Cunningham an evidentiary hearing because the evidence he provided, even if true, did not justify vacating the judgment. -4- Finally, Cunningham relies on KRS 31.110 in support of his request for production of documents. However, the requirements of KRS 31.110 do not apply to CR 60.02 proceedings. Gross, 648 S.W.2d at 857. Furthermore, Cunningham did not file his motion for the documents until after his CR 60.02 motion was denied. Thus, it appears that he is simply searching for other possible grounds for collateral attack. Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858 (1983), expressly prohibits the production of documents at state expense as “a mechanism to search for unknown grievances.” The trial court was correct in denying Cunningham’s motion for production of documents. For the foregoing reasons, the Jefferson Circuit Court’s orders denying Cunningham’s motions to reduce or modify sentence, for appointment of counsel, an evidentiary hearing and production of documents are affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Eric C. Cunningham, Pro Se Luther Luckett Correctional Complex LaGrange, KY Hon. A. B. Chandler, III Attorney General Hon. R. Evelyn Freer Assistant Attorney General Frankfort, KY -5-

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