CLIFFORD SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 5, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002284-MR
CLIFFORD SMITH
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 79-CR-001103
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
GUIDUGLI AND JOHNSON, JUDGES; AND HUDDLESTON, SENIOR
JOHNSON, JUDGE:
Clifford Smith, pro se, has appealed from an
opinion and order entered by the Jefferson Circuit Court on
October 1, 2001, which denied his motion for relief pursuant to
CR2 60.02.
Having concluded that the trial court properly denied
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
Kentucky Rules of Civil Procedure.
Smith’s CR 60.02 motion because he failed to demonstrate that he
was entitled to this extraordinary relief, we affirm.
On September 21, 1979, a Jefferson County grand jury
indicted Smith on 15 counts of robbery in the first degree3 and
one count of being a persistent felony offender in the first
degree (PFO I).4
In return for a guilty plea, the Commonwealth
agreed to recommend that the trial court dismiss five counts of
robbery, reduce the PFO I charge to PFO II,5 and impose a
sentence of 15 years on each of the ten remaining counts of
robbery.
The sentences were to be enhanced to 20 years by the
PFO II conviction and to run concurrently.
On June 6, 1980,
Smith pled guilty and the trial court sentenced him in
accordance with the plea agreement.
However, on June 16, 1980, the trial court entered the
following handwritten order:
On motion of the Commonwealth the
sentencing on this Judgment is set aside.
The PFO II charge is dismissed. The
defendant is sentenced to 20 years on each
of 10 counts of Robbery I to run
concurrently and he is remanded to La
Grange.
3
KRS 515.020.
4
KRS 532.080(3).
5
KRS 532.080(2).
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While the record concerning this amended judgment is scant, it
appears that Smith’s first sentence was set aside because he did
not have a criminal conviction making him subject to a PFO II
conviction.
On June 24, 1981, more than one year after the amended
sentence was entered, Smith filed an RCr6 11.42 motion seeking to
set aside the June 16, 1980, sentence.
The trial court denied
Smith’s RCr 11.42 motion, as well as his motion for an
evidentiary hearing.
Smith then filed a motion to reconsider,
which the trial court denied on August 11, 1981.
Smith appealed the denial of his RCr 11.42 motion,
alleging that (1) his guilty plea was induced by a promise by
the Commonwealth which was not fulfilled; (2) he was denied
effective assistance of counsel; and (3) the trial court failed
to conduct an evidentiary hearing.
This Court, after
considering all three of Smith’s arguments, affirmed the denial
of his RCr 11.42 motion.7
On April 17, 2001, Smith filed a motion to void
judgment pursuant to CR 60.02.
The trial court entered its
opinion and order denying Smith’s CR 60.02 motion in October
6
Kentucky Rules of Criminal Procedure.
7
Smith v. Commonwealth, 1981-CA-002048-MR.
-3-
2001.8
The trial court ruled that Smith’s motion was untimely
and that his arguments had been previously addressed and
disposed of by this Court’s 1982 decision on Smith’s RCr 11.42
motion.
The trial court further ruled that Smith was not
entitled to the extraordinary relief of CR 60.02 because it is
available only “where there is no recourse to direct appeal or
relief pursuant to RCr 11.42[.]”
The trial court concluded that
Smith’s claims had already been rejected by the courts.
This
appeal followed.
8
There is a discrepancy in the record regarding the date of the trial court’s
order denying Smith’s CR 60.02 motion. The record reveals that the trial
court entered its order and opinion in July 2001. This order is slightly
more than two pages long and contains the matter’s factual history, sequence
of events, and findings of law. However, the record also reveals that the
trial court entered another opinion and order denying Smith’s CR 60.02 motion
in October 2001. This order is two pages in length and has a heading
entitled “BRIEF SUMMARY.” Under this heading, there is a one paragraph
description of the case’s facts. There is another heading entitled
“OPINION,” which includes a concise application of the law to the facts. The
record does not indicate why there are two separate orders and opinions
denying Smith’s CR 60.02 motion. Further complicating the issue is the fact
that Smith appealed from the October 2001 order, while the Commonwealth
references the July 2001 order.
After an examination of the two orders, it appears that there are three
differences between the July 2001 order and the October 2001 order. The
first difference is that the July 2001 order indicates that Smith was
indicted in September 1978 for 15 counts of first-degree robbery. However,
the record clearly shows that Smith was charged in September 1979. The
October 2001 order states that Smith was indicted in September 1979 for 15
counts of first-degree robbery. Therefore, it appears that the trial court
under CR 60.01 properly corrected a typographical error in the July 2001
order. The second difference is that the October 2001 order specifically
declares that Smith’s CR 60.02 motion was untimely because the issues had
been resolved more than 20 years earlier. The October 2001 order appears to
supplement the July 2001 order by providing another reason for denying
Smith’s motion. The third difference is that the July 2001 order regards
Smith’s motion to void judgment. The October 2001 order regards Smith’s
motion for relief pursuant to CR 60.02. Both orders have the same
consequence, which is the denial of Smith’s claim for relief. However, as
Smith has appealed from the October 2001 order, and it is the more recent
order, we shall address that order in this Opinion.
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Smith raises five issues on appeal:
(1) that he was
denied his substantial right to due process under the Fifth,
Sixth, and Fourteenth Amendments to the United States
Constitution, and Sections 2, 3, and 11 of the Kentucky
Constitution because the trial court denied his CR 60.02 motion
and his request for an evidentiary hearing to determine the
facts alleged in his CR 60.02 motion; (2) that his guilty plea
was induced by a promise which was not fulfilled; (3) that the
trial court acted without jurisdiction when it entered an
amended sentence; (4) that he was denied effective assistance of
counsel as guaranteed by the Sixth Amendment to the United
States Constitution and Section 11 of the Kentucky Constitution;
and (5) that his guilty plea was not knowingly, intelligently
and voluntarily entered.
“CR 60.029 is an extraordinary remedy and is available
only when a substantial miscarriage of justice will result from
9
CR 60.02 provides as follows:
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
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the effect of the final judgment.”10
The Supreme Court of
Kentucky has declared that CR 60.02 “is for relief that is not
available by direct appeal and not available under RCr 11.42.”11
In the case sub judice, this Court affirmed the trial
court’s denial of Smith’s motion for RCr 11.42 relief in 1982.
The first four issues raised in this appeal were also raised by
Smith in his RCr 11.42 motion.
“[CR] 60.02 is not intended
merely as an additional opportunity to relitigate the same
issues which could ‘reasonably have been presented’ by direct
appeal or RCr 11.42 proceedings.”12
“CR 60.02 is not a separate
avenue of appeal to be pursued in addition to other remedies,
but is available only to raise issues which cannot be raised in
other proceedings.”13
Furthermore, Smith “has failed to
affirmatively allege any facts which, if true, would justify
vacating his sentence under CR 60.02[.]”14
As such, Smith has
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.
10
Wilson v. Commonwealth, Ky., 403 S.W.2d 710, 712 (1966).
11
Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856 (1983).
12
McQueen v. Commonwealth, Ky., 948 S.W.2d 415, 416 (1997) (citing RCr
11.42(3); and Gross, supra at 855-56).
13
McQueen, 948 S.W.2d at 416.
14
Id. at 418 (citing Gross, 648 S.W.2d at 856).
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not “demonstrate[d] why he is entitled to this special,
extraordinary relief.”15
The fifth issue raised by Smith is that his guilty
plea was not knowingly, intelligently and voluntarily entered.
In his reply brief, Smith states that “[o]nce the trial court
accepted [his] plea, the plea agreement became binding on the
Commonwealth and [he] was entitled to enforce it.”16
While this
claim was not specifically considered by this Court in its 1982
decision, this Court did determine that the sentences Smith
received in the judgments entered on June 6, 1980, and June 16,
1980, were the same.
Each time Smith received a 20-year
sentence, which is precisely what he had bargained for with the
Commonwealth.
This Court concluded that the trial court “merely
resentenced [Smith] after having lawfully set aside an illegal
sentence[,]” adding that Smith’s “second sentence was not more
severe than the first or detrimental to [him] because he
received the same sentence” [emphasis original].
Thus, Smith
has failed to show that he did not get the benefit of the plea
bargain.
Furthermore, this issue is the type of issue that
should have been pursued upon direct appeal and/or in a motion
15
16
McQueen, 948 S.W.2d at 416.
Smith v. Commonwealth, Ky., 845 S.W.2d 534 (1993).
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for RCr 11.42 relief and relief is not available under CR
60.02.17
Lastly, we note that pursuant to CR 60.02 Smith’s
motion must have been made within a reasonable time.
Smith’s
motion for CR 60.02 relief was filed on April 19, 2001, slightly
more than 19 years after this Court upheld the denial of his RCr
11.42 motion.
“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.”18
The
trial court ruled that Smith’s CR 60.02 motion was untimely.
We
agree.
Based on the foregoing reasons, the order of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Clifford Smith, Pro Se
Burgin, Kentucky
Albert B. Chandler III
Attorney General
Elizabeth A. Heilman
Frankfort, Kentucky
17
Gross, 648 S.W.2d at 856.
18
Id. at 858.
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