JOE RAY TURNER v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 21, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000777-MR
AND
NO. 2003-CA-000846-MR
JOE RAY TURNER
v.
APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 97-CR-00087
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BARBER AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Joe Ray Turner (hereinafter “Turner”) has
filed two pro se appeals alleging the Allen Circuit Court erred
in denying his RCr 11.42 and CR 60.02 motions.
The two appeals
have been consolidated for appellate review in that the issues
and arguments presented are similar.
Having thoroughly reviewed
the motions, the facts of the case, the arguments of the
parties, and the applicable law, we affirm both appeals.
Turner has filed two appeals.
In appeal No. 2002-CA-
000777-MR, he appeals from the March 29, 2002, “memorandum
opinion and order ruling on [Turner’s] various pro se motions
filed between January 2, 2002 and March 1, 2002.”
In the March
29th order, the trial court sets for the procedural history as
follows:
Between the inclusive dates of January
2, 2002 and March 1, 2002 the above-named
defendant, acting pro se, has filed some
twelve separate motions with the Clerk of
this Court. The Commonwealth has filed
responses, and in some instances replies and
responses to replies have been filed both by
the defendant pro se and by the
Commonwealth.
Among the motions filed by the
defendant are three motions for leave to
proceed in forma pauperis, all of which the
Court will sustain based upon defendant’s
demonstrated indigency.
Of the defendant’s other motions, the
Court characterizes five of them as
substantive in nature, whereas the other
motions are considered collateral to these
substantive motions. The substantive
motions are the following:
(1) Filed January 2, 2002 – “Motion
Pursuant to RCr1 60.02 (E & F) Independent
Action”.
(2) Filed January 16, 2002 – “Motion
to Consider Erroneous Order Overruling
Movant’s 11.42 Motion to Vacate or Set Aside
Conviction”.
1
[Footnote 1 in original Circuit Court Order] Throughout, the defendant
refers to RCr 60.02, but is obvious that he is attempting to cite CR 60.02.
The Court will treat his motion as made under CR 60.02.
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(3) Filed January 31, 2002 – “Motion
for Jail Time Credit Pursuant to KRS
532.120”.
(4) Filed February 2, 2002 – “Motion
to Show Cause Why the Commonwealth Should
Not be Held in Contempt for Failure to Abide
by Court Order”.
(5) Filed February 21, 2002 – “Motion
to Dismiss Indictment. . .”.
In ruling upon these motions, the Court
in (sic) mindful that following his trial by
jury and conviction of murder in the beating
death of his father the defendant exercised
his right of direct appeal to the Kentucky
Supreme Court, which affirmed his conviction
and 99-year sentence in a reported decision
rendered in 1999, Turner v. Commonwealth,
Ky., 5 S.W.3d 119 (1999). Thereafter,
represented by retained counsel, he filed a
motion pursuant to RCr 11.42 alleging
ineffective assistance of appointed trial
counsel and seeking to have his conviction
and sentence vacated. Following a lengthy
evidentiary hearing, the Court overruled
defendant’s RCr 11.42 motion. The defendant
appealed to the Kentucky Court of Appeals.
By an opinion (not to be published) rendered
on March 22, 2002 a panel of the Court of
Appeals affirmed denial of post-conviction
relief under RCr 11.42. The opinion of the
Court of Appeals is not yet final and is not
to be cited as authority, and it is referred
to herein only to show the chronology and
current status of the defendant’s RCr 11.42
motion.2
The circuit court’s order of March 29, 2002, proceeded
to deny Turner’s motions in that they were successive motions
which raised issues that could and should have been raised in
2
The opinion of the Court of Appeals (No. 2002-CA-002737-MR) affirming the
trial court’s denial of Turner’s RCr 11.42 motion became final on 3/19/03.
The Kentucky Supreme Court refused to grant discretionary review.
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his direct appeal, or, in his initial RCr 11.42 motion.
See
McQueen v. Commonwealth, Ky., 948 S.W.2d 415 (1997); Land v.
Commonwealth, Ky., 986 S.W.2d 440 (1999); Gross v. Commonwealth,
Ky., 648 S.W.2d 853 (1983).
On appeal, Turner continues to argue issues that were
or should have been presented in his direct appeal to the
Supreme Court of Ketnucky or in his initial RCr 11.42 motion.
The Allen Circuit Court properly ruled successive collateral
attacks are not permissible.
This principle was set forth in
Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983), and has been
faithfully followed ever since.
In Gross, Justice Leibson
stated:
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.
(Emphasis in 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.
Next, we 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
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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.
Gross, 648 S.W.2d at 856-57.
Despite Turner’s continued
impassioned arguments that the trial court and appellate courts
have erred in its rulings and opinions, the fact remains that he
has been afforded his constitutionality protected due process
rights.
The issues he raised in his direct appeal and his RCr
11.42 have been thoroughly and properly reviewed to his
detriment.
Unfortunately for Turner, the sad fact remains that
he brutally beat to death his elderly father and he must now
serve the sentence he received.
Turner’s second appeal, Court of Appeals No. 2003-CA000846-MR, follows the trial court’s denial of several motions
he filed after the court had denied his second RCr 11.42 motion
(which formed the basis of his appeal previously addressed in
this opinion).
In that we believe the trial court’s memorandum
opinion and order entered April 1, 2003 succinctly and correctly
addresses the issues raised by Turner, we adopt it, in relevant
part, as follows:
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The case is now before the Court on the
following motions which the defendant has
filed pro se:
(1) Motion for an order granting a
mistrial (filed December 9, 2002).
(2) Motion for the Commonwealth to
provide certain police reports (filed
January 27, 2003).
(3) Motion for relief pursuant to CR
60.02(e) and (f) (filed February 7, 2003).
(4) Motion for summary judgment (filed
March 19, 2003).
The Commonwealth has filed a response
to the motion for an order granting a
mistrial but has not responded to the other
motions.
After reviewing the record and
considering the law, the Court concludes
that all of the defendant’s motions lack
merit.
The defendant’s motion for an order
declaring a mistrial and his motion for an
order compelling the Commonwealth to produce
police reports have no basis in law. They
are not post-conviction motions under any
criminal or civil rule or statute, nor has
any case law been cited as authority for
such motions. Accordingly, they will be
summarily denied.
The motion for CR 60.02(e) and (f)
relief fails for two reasons. First, the
grounds for relief have not been asserted
within a reasonable time. The jury trial
was held in May, 1998; the motion was filed
in February, 2003. On its face, a delay of
more than four years in asserting grounds
for relief which were obviously known to the
defendant ever since the voir dire
examination of prospective jurors at trial,
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fails to satisfy the requirement that relief
under CR 60.02 be brought within a
reasonable time. Second, the defendant is
not allowed to avail himself of yet another
CR 60.02 motion to seek or raise grounds for
relief (relationship between a juror and a
Commonwealth witness) which could and should
have been raised in his direct appeal, his
RCr 11.42 motion, or his earlier CR 60.02
motion. Gross v. Commonwealth, Ky., 648
S.W.2d 853 (1983); McQueen v. Commonwealth,
Ky., 948 S.W.2d 415 (1997).
The motion for summary judgment fails
because summary judgment procedures are not
authorized in criminal actions.
Commonwealth v. Hayden, Ky., 489 S.W.2d 513
(1972); Commonwealth v. Hay, Ky. App., 987
S.W.2d 792 (1998).
ORDER DENYING MOTIONS
WHEREFORE, the defendant’s aboveenumerated motions are hereby DENIED.
ENTERED this April 1st, 2003.
Having thoroughly reviewed the record, the numerous
post-judgment filings of Turner, the arguments presented by the
parties hereto and the applicable law, we find no basis to
tamper with the well-reasoned orders entered by the Allen
Circuit Court.
Turner received a fair trial, received competent
legal representation and has previously presented his
allegations of legal error to the Supreme Court of Kentucky and
to this Court, both of which affirmed his conviction.
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For the foregoing reasons, the orders of the Allen
Circuit Court entered on March 29, 2002 and on April 1, 2003,
denying Turner’s various post-trial motions are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joe Ray Turner
Burgin, KY
A. B. Chandler
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, KY
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