JONES (RICKEY BERNARD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000081-MR
RICKEY BERNARD JONES
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC COWAN, JUDGE
ACTION NO. 89-CR-001476
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND VANMETER, JUDGES; HENRY,1 SENIOR
JUDGE.
VANMETER, JUDGE: Rickey Bernard Jones appeals pro se from the Jefferson
Circuit Court’s denial of his fourth post-conviction motion for relief from his 1990
conviction for two counts of murder. Finding no error, we affirm.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
As an initial matter, we note that Jones’ motion was brought under
CR2 60.02(d) and (f). CR 60.02 permits a court to relieve a party from a final
judgment on several grounds specified in the rule. Subsection (d) relates to “fraud
affecting the proceedings, other than perjury or falsified evidence[,]” and
subsection (f) relates to “any other reason of an extraordinary nature[.]” A motion
based on these subsections must be filed “within a reasonable time[.]” Id.
In Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983), the
Kentucky Supreme Court defined the parameters of a CR 60.02 claim in the
context of a criminal conviction:
Rule 60.02 is part of the Rules of Civil Procedure.
It applies in criminal cases only because Rule 13.04 of
the Rules of Criminal Procedure provides that “the Rules
of Civil Procedure shall be applicable in criminal
proceedings to the extent not superseded by or
inconsistent with these Rules of Criminal Procedure.”
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[3] 11.42, and thereafter in CR
60.02. CR 60.02 is not intended merely as an additional
opportunity to raise Boykin[4] 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
2
Kentucky Rules of Civil Procedure.
3
Kentucky Rules of Criminal Procedure.
4
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
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the judgment and further allege special circumstances
that justify CR 60.02 relief.
CR 60.02 was enacted as a substitute for the
common law writ of coram nobis. The purpose of such a
writ was to bring before the court that pronounced
judgment errors in matter of fact which (1) had not been
put into issue or passed on, (2) were unknown and could
not have been known to the party by the exercise of
reasonable diligence and in time to have been otherwise
presented to the court, or (3) which the party was
prevented from so presenting by duress, fear, or other
sufficient cause. Black's Law Dictionary, Fifth Edition,
487, 1444.
In further discussing the basis for relief under subsections (d), (e) and (f) of CR
60.02, the Court stated:
The additional specified grounds for relief are [(d)] fraud,
[(e)] the judgment is void, vacated in another case,
satisfied and released, or otherwise no longer equitable,
or [(f)] other reasons of an “extraordinary nature”
justifying relief. These grounds are specific and explicit.
Claims alleging that convictions were obtained in
violation of constitutionally protected rights do not fit
any of these grounds except the last one, “any other
reason of an extraordinary nature justifying relief.” In
Copeland v. Commonwealth, Ky., 415 S.W.2d 842
(1967), we refused to grant CR 60.02 relief where the
alleged constitutionally impermissible act (failure to
provide counsel when taking a guilty plea) could have
been raised in an earlier proceeding. This establishes as
precedent that such grounds are not automatic, but
subject to the qualification that there must be
circumstances of an extraordinary nature justifying relief.
Gross, 648 S.W.2d at 857 (emphasis added).
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Jones’ first assignment of error appears to concern an alleged
deficiency in the appointment of his trial counsel, Wilson,5 and an alleged
discrepancy as to whether attorney Wilson had represented Jones in the Jefferson
District Court.6 As pointed out by Jones, in this matter, the Commonwealth
proceeded by direct indictment by the grand jury, in lieu of a preliminary hearing
in district court. See King v. Venters, 595 S.W.2d 714, 715 (Ky. 1980) (holding
that “a preliminary hearing, examining trial, or any other ‘probable cause’ inquiry,
is not prerequisite to the consideration of a charge by the grand jury or to the
validity of an indictment returned pursuant to a ‘direct submission’”);
Commonwealth v. Yelder, 88 S.W.3d 435, 437-38 (Ky.App. 2002). Thus, any
complaint by Jones that he did not receive a preliminary hearing is meritless, as
none was required. Any complaint that he was not present at the grand jury
5
While our practice is not to name counsel in opinions, not doing so in this instance would make
this opinion difficult to follow.
6
The record indicates that Jones was arrested soon after the shooting, and, in fact, did appear in
Jefferson District Court. The record includes a “Request for Direct Submission” dated July 30,
1989, the original Indictment by the Grand Jury, dated August 1, 1989, and a Motion for a Bench
Warrant. In the latter document, the Commonwealth alleged that Jones had been indicted by
direct submission, that he has been arrested on a charge in the Indictment, and that the current
status of the charges was that “[a] probable cause hearing is scheduled for August 3, 1989 in
District Court.” Jones’ release status was further stated as not out on bail, and his bond was
“currently $50,000 in District Court.” These documents help explain the trial court’s order on
arraignment, dated August 3, 1989, that “Wilson who represented Mr. Jones in district court
pursuant to the assigned counsel of the public defender’s office is appointed as counsel.” The
Public Defender’s Assigned Counsel Plan was, and is, the Louisville-Jefferson County Public
Defender’s Office’s solution to address conflicts arising by indigent co-defendants charged in
capital cases. At that time, Wilson was an attorney in private practice, who contracted with the
Public Defender’s Office to handle conflict cases. Jones’ co-defendant in this case was Casey
Arnold Pettiway, who was represented by counsel in the Public Defender’s Office. These facts
also explain the Public Defender’s acknowledgment of appointment, which states, “Hon. . . .
Wilson not a Public Defender staff attorney, has been assigned this case, per Asg C Plan Dated
this 3 day of Aug, 1989 /s/ Daniel T. Goyette Public Defender.” (Items in italics are handwritten
on the form).
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hearing also lacks merit, as such an appearance is not permitted under RCr 5.18. If
Jones is complaining that he was not represented at arraignment, his argument
must fail since the record reveals that he was, in fact, represented by attorney
Wilson, albeit through another attorney who stood in for Wilson at the arraignment
on August 3, 1989. Finally, any complaint that Jones was not appointed counsel
for these charges is simply unsupported by the record.
In addition, under Gross and CR 60.02, Jones’ claim was not made
within a reasonable time. A review of the record7 would have disclosed the facts
pertinent to any possible argument by Jones regarding any alleged deficiency in his
arraignment, including that an attorney stood in for Wilson at that point, or that an
attorney from the Public Defender’s Office may have stood in during an initial
court appearance, even though representing a co-defendant. Thus, Jones’ claim is
precluded on temporal grounds.
Second, Jones alleges that attorney Wilson, who formerly served as an
assistant Commonwealth’s Attorney in Jefferson County, participated in a scheme
by the Commonwealth to alter the testimony of Jones’ co-defendant in order to
eviscerate Jones’ self-defense argument.
With respect to attorney Wilson’s prior employment by the
Commonwealth Attorney’s office, federal courts have held that a defense
attorney’s prior employment by a prosecutor’s office does not result in a Sixth
7
Jones claims that he did not meet attorney Wilson until the jury selection was underway. The
record amply refutes this statement. Jones was arrested in July 1989 and his trial was not held
until September 1990. The record contains numerous orders reflecting Jones’ and Wilson’s
concurrent appearance in court, the earliest such order being dated September 11, 1989.
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Amendment violation. See United States v. Villarreal, 324 F.3d 319, 327-28 (5th
Cir. 2003) (mere fact that trial counsel had been employed “in the district
attorney’s office at the time of [the defendant’s] prior conviction did not represent
a conflict of interest”); Brownlee v. Haley, 306 F.3d 1043, 1064 (11th Cir. 2002)
(defendant “made no showing that [trial counsel] had inconsistent interests simply
because he worked in the district attorney’s office at a time when [the defendant]
was prosecuted years earlier”). Both Villarreal and Brownlee involved situations
in which trial counsel’s earlier employment in a prosecutor’s office coincided with
an earlier prosecution of the defendant. If those situations do not implicate the
Sixth Amendment, then certainly Jones’ situation does not, since the record
contains no suggestion that the Jefferson County Commonwealth’s Attorney’s
Office ever prosecuted Jones previously.8
With respect to Jones’ assertion that attorney Wilson acquiesced in the
Commonwealth’s fabrication of the evidence, the trial court correctly noted that
Jones provides no proof or affidavit to support this claim in his pleading. Jones
further fails to allege how he learned of this alleged fabrication, or that he “could
not have . . . known [of it] by the exercise of reasonable diligence and in time to
have been otherwise presented to the court.” Gross, 648 S.W.2d at 856. This
defect is fatal to his CR 60.02 motion.
8
According to the record, Jones’ earlier crimes were prosecuted in Florida, not Kentucky.
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The Jefferson Circuit Court’s order dismissing Jones’ CR 60.02
motion is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Ricky Jones, Pro se
Eddyville, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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