ANTHONY WAYNE HAWKINS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 24, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001679-MR
ANTHONY WAYNE HAWKINS
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 93-CR-00059
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
COMBS, CHIEF JUDGE:
Anthony Wayne Hawkins appeals from an order
of the Harlan Circuit Court that denied his motion for postconviction relief pursuant to CR 60.02.1
We affirm.
On July 12, 1993, Joy Food Mart in Benham, Kentucky,
was burglarized.
Numerous cartons of cigarettes were taken
along with seventy lottery tickets.
On July 13, 1993, Anthony
Hawkins tendered three of the stolen lottery tickets to a sales
clerk at a convenient store in Lynch, Kentucky.
1
Kentucky Rules of Civil Procedure.
Upon making
payment of his winnings to Hawkins, the sales clerk was
immediately advised by an official of the Kentucky Lottery
Association that the tickets had been reported stolen.
Following the instructions of the lottery official, the clerk
obtained Hawkins’s license plate number and telephoned local
police.
After an investigation, Hawkins was indicted by a
Harlan County grand jury.
On March 3, 1994, Hawkins was tried by a jury, which
found him guilty of criminal trespass and of unlawfully passing
a lottery ticket.
He was sentenced to forty-five days in jail
for the trespass conviction and five-years’ imprisonment for
unlawfully passing a lottery ticket.
to run concurrently.
The sentences were ordered
On appeal to this court, Hawkins’s
conviction for criminal trespass was vacated, but his conviction
and sentence for unlawfully passing a lottery ticket were
affirmed.
We held that Hawkins’s conviction for unlawfully
passing a lottery ticket was supported by sufficient evidence.
On June 12, 2003, Hawkins filed a motion pursuant to
the provisions of CR 60.02.
In his motion, Hawkins contended
that he had suffered a “substantial injustice of an
extraordinary nature.”
First, he challenged the sufficiency of
the evidence presented against him with respect to the
allegation that he had unlawfully passed a lottery ticket.
Hawkins contended that the Commonwealth had failed to present
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any evidence of an intent to defraud, proving only that he had
been in possession of the three stolen lottery tickets.
Consequently, he argued that his conviction should not be
permitted to stand.
Second, he argued that the indictment of
the grand jury had initially failed to state an offense and had
been later improperly amended to his prejudice.
Finally, he
argued that the judgment should be vacated since he had received
ineffective assistance of counsel both at trial and on direct
appeal.
RCr2 11.42.
Hawkins’s motion was denied by the trial
court on July 25, 2003.
This appeal followed.
Hawkins contends that the trial court abused its
discretion by failing to grant him relief from his conviction
and sentence.
We disagree.
In Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983),
the Supreme Court of Kentucky addressed the nature of postconviction relief and the operation of the provisions of CR
60.02.
The Supreme Court observed as follows:
[T]he 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 . . . as to
any ground of which he is aware, or should
be aware, during the period when this remedy
2
Kentucky Rules of Criminal Procedure.
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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.
Id. at 857.
The provisions of CR 60.02 are not fashioned to
provide an additional opportunity to relitigate the same issues
that could reasonably have been presented by direct appeal or
through RCr 11.42 proceedings, which had to be brought within
three years.
On appeal, Hawkins has abandoned any contention that
he received ineffective assistance of counsel.
His remaining
arguments involve alleged trial errors that were originally
subject to direct appeal but which now are not cognizable by
means of a collateral attack on the judgment.
Additionally,
Hawkins failed to exercise due diligence in pursuing his claims.
Under the provisions of CR 60.02, a motion must be filed within
a reasonable time if the motion is based upon an extraordinary
reason justifying the relief sought.
Hawkins waited until June
2003 to file his CR 60.02 motion with the trial court.
A delay
of nearly nine years is not reasonable and does not comply with
the clear requirements of CR 60.02.
(We note that Hawkins has
completed serving his five-year sentence.)
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The trial court did
not abuse its discretion by denying the motion as Hawkins failed
to invoke the provisions of CR 60.02 in a timely fashion.
The order of the Harlan Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Anthony Wayne Hawkins, pro se
Lynch, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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