MULLINS (WILLIAM) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 21, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000720-MR
WILLIAM MULLINS
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 01-CR-00253
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, STUMBO, AND VANMETER, JUDGES.
STUMBO, JUDGE: William Mullins (Appellant) appeals the denial of his
Kentucky Rule of Civil Procedure (CR) 60.02 post-conviction motion wherein he
alleged that his guilty plea was unconstitutional and violated due process. The
lower court held that the motion was not timely and that his claims could have
been addressed on direct appeal or with a Kentucky Rule of Criminal Procedure
(RCr) 11.42 motion. The Commonwealth contends that we should affirm the
lower court’s order because Appellant’s claim is not cognizable via a CR 60.02
motion and that, even if it were, it was untimely. We agree with the
Commonwealth and the lower court and find that the motion was untimely and that
Appellant’s claims should have been brought via RCr 11.42.
On November 16, 2000, Appellant called the Covington Police
Department and requested assistance. He believed someone had broken into his
house and may still have been inside. Police officers arrived and, with Appellant’s
consent, searched the house. The officers found no intruders, but did discover an
indoor marijuana cultivation operation containing over ten marijuana plants.
Appellant was then arrested.
On May 4, 2001, a Kenton County grand jury indicted Appellant on
one count of cultivation of marijuana, five plants or more, a violation of Kentucky
Revised Statute (KRS) 218A.1423. KRS 218A.1423 states:
(1) A person is guilty of marijuana cultivation when he
knowingly and unlawfully plants, cultivates, or harvests
marijuana with the intent to sell or transfer it.
(2) Marijuana cultivation of five (5) or more plants of
marijuana is:
(a) For a first offense a Class D felony.
(b) For a second or subsequent offense a Class C felony.
(3) Marijuana cultivation of fewer than five (5) plants is:
(a) For a first offense a Class A misdemeanor.
(b) For a second or subsequent offense a Class D felony.
(4) The planting, cultivating, or harvesting of five (5) or
more marijuana plants shall be prima facie evidence that
the marijuana plants were planted, cultivated, or
harvested for the purpose of sale or transfer.
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On July 16, 2001, Appellant filed a motion to enter a guilty plea based
on an offer from the Commonwealth of a five-year sentence, probated for five
years. Appellant entered the guilty plea and the court followed the
Commonwealth’s recommendation for probation. On October 26, 2005,
Appellant’s probation was revoked and he was ordered to serve his original fiveyear sentence.
Appellant filed his CR 60.02 motion on May 17, 2007. As stated
above, the lower court overruled the motion. This appeal followed.
CR 60.02 states:
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 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.
Appellant first argues that his guilty plea was unconstitutional because
it was not entered voluntarily, knowingly, and intelligently. He argues this by
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claiming that he was never informed that the offense of cultivation of marijuana
had an element of intent to sell or transfer,1 that the plea was an illusory
agreement,2 and that he did not receive effective assistance of counsel. Appellant
also argues that the delay in his filing the motion should be excused because he
was not aware that the cultivation of marijuana had an element of intent to sell and
nothing in the trial record indicated that element was necessary. Also, in the
alternative, he requests that we reinstate his right to appeal his plea agreement due
to ineffective assistance of counsel.
Application of the Civil Rules is required in criminal
cases by RCr 13.04. This allows CR 60.02 motions to be
used by criminal defendants to present additional issues
not specifically available through direct appeals or RCr
11.42 motions. Gross v. Commonwealth, 648 S.W.2d
853, 856 (Ky. 1983). As we have previously stated, CR
60.02 motions are limited to afford special and
extraordinary relief not available in other proceedings.
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.
1997). The rule is not intended to provide an avenue for
defendants to relitigate issues which could have been
presented in a direct appeal or an RCr 11.42 proceeding.
Id.
Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky. 2008).
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
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During Appellant’s plea colloquy and sentencing, he, his attorney, and the Commonwealth
Attorney all stated that the evidence showed that the marijuana plants were intended for personal
use only.
2
Appellant claims that because he was given the maximum penalty under the law, he received no
benefit from the plea agreement. We note, however, that the Commonwealth recommended
probation under the plea, which Appellant received.
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direct appeals, in RCr 11.42, and thereafter in CR 60.02.
CR 60.02 is not intended merely as an additional
opportunity to raise Boykin defenses. It 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. Before the
movant is entitled to an evidentiary hearing, he must
affirmatively allege facts which, if true, justify vacating
the judgment and further allege special circumstances
that justify CR 60.02 relief.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
On review of the denial of a CR 60.02 motion, we review
for an abuse of discretion. White v. Commonwealth, 32
S.W.3d 83, 86 (Ky. App. 2000). The test for abuse of
discretion is “whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
Baze, supra.
We find that the trial court did not abuse its discretion in overruling
Appellant’s motion. Appellant filed his motion almost six years after he entered
his guilty plea. He was also not incarcerated until over four years later, giving him
ample opportunity to review his plea agreement, case, and indictment. Appellant
does not bring this motion under CR 60.02(a)-(c) so it must be brought within a
reasonable time. Under these circumstances, we find it was not brought within a
reasonable time.
Furthermore,
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
ground of which he is aware, or should be aware, during
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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 at 857. In the case at hand, Appellant did not file an RCr 11.42 motion. All
of his claims should have been brought via an RCr 11.42 motion. These issues are
not of the extraordinary nature as is contemplated by CR 60.02.
As for Appellant’s request to reinstate his right to appeal due to
ineffective assistance of counsel, Appellant has not proven ineffective assistance of
counsel, has not filed an RCr 11.42 motion to do so, and the time for that motion
has expired.
For the above reasons, we affirm the order overruling Appellant’s CR
60.02 motion.
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ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
William David Mullins, pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Office for Criminal Appeals
Frankfort, Kentucky
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