DONALD WAYNE CROWE, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 5, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002420-MR
DONALD WAYNE CROWE, JR.
APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 83-CR-00005 & 83-CR-00027
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Donald Wayne Crowe, Jr., (hereinafter
“Crowe”), proceeding pro se, has appealed from the Powell Circuit
Court’s September 20, 2000, order denying his CR 60.02 motions to
vacate entered in indictments No. 83-CR-00005 and No.
83-CR-00027.1
Having considered the parties’ briefs, the record,
and the applicable case law, we affirm.
1
Although the trial court denied both motions in the bench
order and the notice of appeal listed both indictment numbers,
Crowe has only addressed indictment No. 83-CR-00027 in his brief.
Furthermore, on October 3, 2001, the Powell Circuit Court set
aside the sentence and judgment in indictment No. 83-CR-00005 on
agreement with the Commonwealth. Therefore, we will only address
those issues relating to indictment No. 83-CR-00027 in this
opinion.
Before addressing the merits of the appeal, we must
address the issue as to which trial court orders are properly
reviewable at this time.
In order to do so, we must look at the
procedural histories of both indictments at the trial court and
appellate levels.
In 2000, Crowe filed CR 60.02 motions to
vacate the 1984 judgments entered pursuant to separate guilty
pleas.
On September 20, 2000, the trial court held a single
hearing on both motions with Crowe represented by a public
defender and denied both motions in a handwritten docket order
that day.
On October 9, 2000, Crowe, at that point proceeding
pro se, filed a notice of appeal from the September 20, 2000,
order listing both indictment numbers.
This notice of appeal is
the initiating document in the above-styled appeal.
On November
4, 2000, more than ten days later, Crowe filed a motion to
reconsider that order.
New counsel for Crowe entered an
appearance, and filed a memorandum in support on May 15, 2001,
listing only indictment No. 83-CR-00027.
Apparently identifying
it as a CR 60.02 motion, the trial court denied the motion to
reconsider on June 25, 2001, and Crowe filed a motion to
reconsider that order on July 9, 2001.
The trial court denied
the second motion to reconsider on September 19, 2001, and then
set aside the sentence and judgment in indictment No. 83-CR-00005
on October 3, 2001.
However, neither Crowe nor his attorney
filed a notice of appeal from either the June 25 or the September
19, 2001, orders denying the motions to reconsider.
On Crowe’s motion, this Court originally placed the
appeal in abeyance on February 20, 2001, pending the trial
court’s ruling on the motion to reconsider, and returned the
-2-
appeal to the active docket on October 23, 2001, upon receipt of
a response from Crowe that included the September 19 and October
3, 2001, trial court orders.
In the present appeal, Crowe is
attempting to raise and argue issues addressed in the June 25 and
the September 19, 2001, orders.
Because no notices of appeal
were filed from those orders, we are precluded from reviewing
them.
We must therefore limit our review to the September 20,
2000, order, which is the subject of the original appeal.
Crowe was indicted by the grand jury on January 5,
1983, for the offense of theft by unlawful taking over $100
(indictment No. 83-CR-00005.)
The trial court accepted his
guilty plea and imposed a two-year sentence on February 24, 1984,
which was to be served along with a prior conviction from Clark
Circuit Court for which his probation had been revoked.
The
grand jury next indicted Crowe on May 20, 1983, for the offense
of receiving stolen property with a value of more than $100
(indictment No. 83-CR-00027.)
The trial court again accepted his
guilty plea on June 28, 1984, and imposed a two-year sentence to
be served concurrently with the sentence in indictment No. 83-CR00005.
Crowe was then conditionally released on July 19, 1984.2
Almost sixteen years later, Crowe filed motions to
vacate pursuant to CR 60.02, stating that he was proceeding under
CR 60.02(d), (e), and (f) as he was time-barred from seeking
relief pursuant to RCr 11.42.
In the motion to vacate the
judgment and sentence in indictment No. 83-CR-00027, Crowe argued
2
Crowe is currently serving a three hundred year sentence
from a 1988 Jefferson Circuit Court conviction of two counts of
rape, one count each of kidnaping and burglary, and of being a
persistent felony offender.
-3-
that he received ineffective assistance of counsel, that the
trial court failed to hold a mandatory hearing due to his
youthful age, that double jeopardy applied, that his guilty plea
was not knowingly and intelligently entered, and that the
indictment was not a true bill.
The circuit court appointed
counsel for the limited purpose of investigating Crowe’s claims,
but no records were located that could corroborate his
assertions.
Following a hearing on September 20, 2000, the trial
court denied the CR 60.02 motions as there were no records to
bolster Crowe’s claims.
The order included language stating that
it was final and appealable and that there was no just cause for
delay.
This appeal followed.
As pointed out by the Commonwealth in its brief, Crowe
confined his arguments to issues arising from trial court orders
entered after September 20, 2000.
However, we will still
consider whether the circuit court committed any error in denying
the CR 60.02 motion to vacate.
CR 60.02(f) allows a trial court to relieve a party
from a final judgment for “any other reason of an extraordinary
nature justifying relief.”
The rule mandates that the motion
“shall be made within a reasonable time.”
Crowe did not
initially seek relief pursuant to RCr 11.42 prior to seeking
relief pursuant to CR 60.02 and did not set forth any reason for
his failure to do so other than the fact that he was time barred.
Additionally, he waited almost sixteen years before filing his CR
60.02 motion to vacate.
All of the claims set forth in his May
31, 2000, motion to vacate should have been known and raised by
Crowe well before he sought the relief herein.
-4-
Crowe’s lengthy
delay in seeking any type of post-conviction relief was clearly
unreasonable.
Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983);
Ray v. Commonwealth, Ky.App., 633 S.W.2d 71 (1982).
Furthermore,
we do not believe that Crowe has presented any extraordinary
circumstances to merit the granting of relief pursuant to CR
60.02.
Crowe did not try to attack his convictions until after
he received the enhanced three hundred year sentence in Jefferson
Circuit Court.
As in Ray, supra, Crowe’s motivation is obvious.
He was clearly seeking to rid himself of the prior felony
convictions underpinning the later PFO I charge.
Finally, Crowe was unable to produce any evidence to
corroborate his claims in the CR 60.02 motion, and it does not
even appear that he raised the issue as to the validity of his
prior guilty pleas in the subsequent Jefferson Circuit Court
proceedings.
In the judgment and sentence on the plea of guilty
in indictment No. 83-CR-00027, the trial court indicated that it
found that Crowe, represented by counsel, understood the charges
against him and knowingly and voluntarily waived his right to be
tried before a jury.
Nothing in that document revealed any sort
of irregularity in the proceedings, and the record refutes his
allegations that the plea was anything other than knowingly and
voluntarily entered.
For the foregoing reasons, the September 20, 2000,
order of the Powell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Donald Wayne Crowe, Jr.
Fredonia, KY
A. B. Chandler, III
Attorney General
-5-
Gregory C. Fuchs
Assistant Attorney General
Frankfort, KY
-6-
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