JOHN A. ROBINSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: November 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001670-MR
JOHN A. ROBINSON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 78-CR-001456
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE, BARBER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
John A. Robinson appeals from an order of the
Jefferson Circuit Court denying his motion for relief pursuant to
CR 60.02.
As the trial court did not abuse its discretion in
finding that the CR 60.02 motion had not been filed within a
reasonable amount of time, we affirm.
On October 31, 1978, appellant was indicted by the
Jefferson County Grand Jury on one count of theft by unlawful
taking over $100 and one count of receiving stolen property over
$100.
On February 22, 1979, appellant entered into a plea
agreement with the Commonwealth in which, in exchange for his
guilty plea to receiving stolen property over $100, the
Commonwealth recommended a sentence of two years, and dismissal
of the theft charge.
On March 21, 1979, the court sentenced
appellant in accordance with the Commonwealth's recommendation,
and probated the two-year sentence for a period of five years.
On June 16, 1982, appellant filed a motion to set aside
and/or vacate pursuant to RCr 11.42, requesting the court to set
aside his February 22, 1979 guilty plea and the sentence imposed
by the court on March 21, 1979.
The record indicates that
appellant's sole claim in the RCr 11.42 motion was that he was
not guilty as he did not know that the property which was the
subject of the charges was stolen at the time he purchased it.
An evidentiary hearing was held, and on August 2, 1982, the court
denied the motion.
On January 21, 1999, appellant filed a motion to vacate
or dismiss his February 22, 1979 conviction pursuant to RCr 11.42
and/or CR 60.02.
On February 9, 1999, the court entered an order
requiring appellant to choose whether to proceed under either RCr
11.42 or CR 60.02, of which appellant chose CR 60.02.
A hearing was held on February 16, 1999, on which date
the Commonwealth filed a motion to dismiss the CR 60.02 motion.
Appellant did not attend the hearing as he was in a federal
penitentiary.
The court granted appellant time to file a
response to the Commonwealth's motion, which he filed on April 6,
1999.
On April 16, 1999, the court entered an order dismissing
the CR 60.02 motion on the grounds that an unreasonable amount of
time had passed between the 1979 conviction and the filing of the
CR 60.02 motion in 1999.
This appeal followed.
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On appeal, appellant argues that the trial court erred
in dismissing his CR 60.02 motion.
Appellant contends he was
entitled to relief under CR 60.02, as he "only recently became
aware that his conviction violated his rights under the double
jeopardy clause".
Appellant further alleges that his plea was
not voluntary and intelligent as he "just recently learned the
elements of Receiving Stolen Property" and that the court did not
determine if there was a factual basis for his guilty plea.
CR 60.02 states:
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.
A post-judgment motion made under CR 60.02 is for
relief that is not available by direct appeal and not available
under RCr 11.42, and the movant must demonstrate why he is
entitled to this extraordinary remedy.
Ky., 648 S.W.2d 853 (1983).
Gross v. Commonwealth,
We first note that the issues raised
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in appellant's CR 60.02 motion should have been raised in his RCr
11.42 motion.
As in his motion to the trial court, appellant also
fails to specify to this court under which section of CR 60.02 he
is proceeding.
As 19 years had elapsed between appellant's
conviction and the filing of his CR 60.02 motion, he is clearly
time-barred from filing a motion under CR 60.02(a), (b), or (c),
as such motions must be filed within one year.
Appellant does
not allege the errors addressed by sections (d) or (e).
Hence,
we assume that appellant is attempting to proceed under section
(g).
The rule does not specify a time limit in which a motion
under this section must be made, however it does require that the
motion "shall be made within a reasonable time".
CR 60.02.
"What constitutes a reasonable time in which to move to
vacate a judgment under CR 60.02 is a matter that addresses
itself to the discretion of the trial court."
at 858.
Gross, 648 S.W.2d
Appellant entered his guilty plea on February 22, 1979,
was sentenced on March 21, 1979, and filed the CR 60.02 motion
nearly twenty years later on January 21, 1999.
As such, the
trial court found that an unreasonable amount of time had passed
for the purposes of challenging the conviction per CR 60.02.
Considering the facts of this case, it was clearly not an abuse
of discretion for the trial court to so find.
Id.
We further note that appellant has not alleged facts
which would justify the extraordinary relief of CR 60.02.
Gross,
648 S.W.2d at 856; McQueen v. Commonwealth, Ky., 948 S.W.2d 415,
416 (1997).
The record, which contains the "Plea of Guilty"
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dated February 22, 1979, refutes appellant's allegation that his
plea was not voluntarily and intelligently made.
Appellant's
second allegation, that his guilty plea subjected him to double
jeopardy, is also without merit.
The record indicates that
appellant had proceeded to trial on December 19, 1978, prior to
entering his guilty plea.
After the jury had been sworn in,
appellant's counsel moved for a mistrial due to a
misunderstanding concerning counsel's earlier request for a
continuance, combined with the fact that substitute counsel was
not properly prepared for trial.
The court sustained the motion,
and the trial was rescheduled for February 22, 1979, on which
date appellant entered his guilty plea.
Under these facts, as
appellant moved for the mistrial, any double jeopardy bar to
retrial was removed.
(1983).
Stamps v. Commonwealth, Ky., 648 S.W.2d 868
Hence, appellant's claim that he was subjected to double
jeopardy is without merit.
The standard of review of a denial of a CR 60.02 motion
is whether the trial court abused its discretion.
Bethlehem
Minerals Company v. Church and Mullins Corp., Ky., 887 S.W.2d 327
(1994).
Having determined that the CR 60.02 motion was not filed
within a reasonable amount of time, and that appellant's claims
are without merit, we conclude that the trial court did not abuse
its discretion in dismissing appellant's CR 60.02 motion.
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, Kentucky
A. B. Chandler, III
Attorney General
J. Foster Cotthoff
Assistant Attorney General
Frankfort, Kentucky
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