DEMETRIUS FLETCHER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-003116-MR
DEMETRIUS FLETCHER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOHN W. POTTER, JUDGE
ACTION NO. 94-CR-002813
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Demetrius Fletcher has appealed pro se from an
order of the Jefferson Circuit Court entered on November 22,
1999, which denied his motion for relief pursuant to CR1 60.02
without an evidentiary hearing.
Having concluded that all of
Fletcher’s claims are procedurally improper and otherwise without
merit, we affirm.
1
Kentucky Rules of Civil Procedure.
On October 4, 1995, after a jury found Fletcher guilty
of the murder of Dedrick D. Johnson, he was sentenced to forty
years in prison by the Jefferson Circuit Court.
Fletcher’s
conviction was later affirmed on his direct appeal to the Supreme
Court of Kentucky on December 12, 1996.2
Thereafter, on July 18,
1997, Fletcher filed a motion for relief pursuant to RCr3 11.42,
alleging several grounds for ineffective assistance of counsel.
This motion was denied by the circuit court, which was then
affirmed by this Court on July 28, 1999.4
On September 8, 1999,
Fletcher filed his motion seeking relief pursuant to CR 60.02.
On November 22, 1999, the circuit court denied Fletcher’s motion
for relief, and this appeal followed.
In his CR 60.02 motion, Fletcher argued (1) that he was
improperly placed in double jeopardy; (2) that certain evidence
should have been suppressed at trial; (3) that he was denied due
process of law by having been placed in double jeopardy; (4) that
the Commonwealth failed to prove an essential element of the
murder charge; and (5) that he received ineffective assistance of
counsel.
All of these claims by Fletcher are procedurally
improper under CR 60.02, and either should have, or already have
been, raised in a prior appeal.
2
1995-SC-000916-MR, not-to-be-published opinion.
3
Kentucky Rules of Criminal Procedure.
4
1998-CA-000427-MR, not-to-be-published opinion.
-2-
In Gross v. Commonwealth,5 our Supreme Court explained
the purpose of CR 60.02:
The structure provided in Kentucky for
attacking the final judgment of a trial court
in a criminal case is not haphazard and
overlapping, but is organized and complete.
That structure is set out in the rules
related to direct appeals, in RCr 11.42, and
thereafter in CR 60.02. CR 60.02 is. . .for
relief that is not available by direct appeal
and not available under RCr 11.42. The
movant must demonstrate why he is entitled to
this special, extraordinary relief [emphasis
original].
. . .
We hold that the proper procedure for a
defendant aggrieved by a judgment in a
criminal case is to directly appeal that
judgment, stating every ground of error which
it is reasonable to expect that he or his
counsel is aware of when the appeal is taken
[emphasis added].
In Howard v. Commonwealth,6 the former Court of Appeals further
stated:
It has long been the policy of this court
that errors occurring during the trial should
be corrected on direct appeal, and the
grounds set forth under the various
subsections of CR 60.02 deal with
extraordinary situations which do not as a
rule appear during the progress of a trial
[emphasis added].
If Fletcher had viable issues to raise concerning his
claims of double jeopardy, insufficient evidence, failure to
suppress evidence, and due process, he should have raised these
issues in his direct appeal to the Supreme Court.
5
Ky., 648 S.W.2d 853, 856-57 (1983).
6
Ky., 364 S.W.2d 809, 810 (1963).
-3-
As Gross and
Howard hold, it is not procedurally proper to use CR 60.02 as a
means of raising issues that could have been raised in a prior
appeal.
Accordingly, since Fletcher has exhausted his direct
appeal, the trial court was correct in denying his motion for
relief on these claims.
Furthermore, none of these claims has
any merit.
Fletcher’s final claim of error, that he received
ineffective assistance of counsel, is also procedurally improper.
This Court has already ruled in Fletcher’s prior RCr 11.42 appeal
that his ineffective assistance of counsel claim was without
merit.
We turn to Gross once again, where the Supreme Court
stated:
[W]e hold that a defendant is required to
avail himself of RCr 11.42 while in custody
under sentence or on probation, parole or
conditional discharge, as to any ground of
which he is aware, or should be aware, during
the period when this remedy is available to
him. Final disposition of that motion, or
waiver of the opportunity to make it, shall
conclude all issues that reasonably could
have been presented in that proceeding. The
language of RCr 11.42 forecloses the
defendant from raising any questions under CR
60.02 which are "issues that could reasonably
have been presented" by RCr 11.42 proceedings
[emphases added].7
Therefore, since Fletcher has already raised the issue of
ineffective assistance of counsel in a previous RCr 11.42 motion,
he is precluded from raising the same claim under this current CR
60.02 motion.
Accordingly, the trial court was correct in
denying Fletcher’s ineffective assistance of counsel claim.
7
Gross, supra at 857.
-4-
In summary, all of Fletcher’s claims are procedurally
improper and without merit.
CR 60.02 is intended to provide
relief for those extraordinary situations where relief is not
available through a direct appeal or RCr 11.42 motion.
Since all
of Fletcher’s claims either could have, or already have been,
raised in a prior proceeding, it was not proper for him to raise
them in a CR 60.02 motion.
For these reasons, the order of the Jefferson Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Demetrius Fletcher, Pro Se
West Liberty, KY
A.B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, KY
-5-
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