Alan Barnett v. Commonwealth of Kentucky
This text of Alan Barnett v. Commonwealth of Kentucky (Alan Barnett v. Commonwealth of Kentucky) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
RENDERED: FEBRUARY 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1452-MR
ALAN BARNETT APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 14-CR-00375
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND TAYLOR, JUDGES.
CETRULO, JUDGE: Appellant Alan Barnett (“Barnett”), pro se, appeals an order
of the Kenton Circuit Court denying his motion to vacate a judgment of conviction.
Upon review, we affirm. I. Factual and Procedural History
In 2016, Barnett pled guilty to sodomy in the first degree and was
sentenced to 17 years of imprisonment. In August 2021, more than four years after
his final judgment, Barnett filed a CR1 60.02 motion to vacate his judgment due to
ineffective assistance of counsel. More specifically, Barnett argued that his legal
counsel, a public defender, failed to disclose the extent of her caseload to him,
thereby perpetrating a fraud upon the proceedings. In November 2021, the trial
court denied Barnett’s motion,2 holding: 1) it was not filed within a reasonable
time; 2) his claims of ineffective assistance of counsel should have been raised by
an RCr3 11.42 motion instead of a CR 60.02 motion; and 3) his assertions of fraud
failed because he did not present sufficient evidence to support the claim.
Thereafter, Barnett appealed.
II. Standard of Review
We review the denial of a CR 60.02 motion for abuse of discretion.
Young v. Richardson, 267 S.W.3d 690, 697 (Ky. App. 2008). “The test for abuse
1 Kentucky Rule of Civil Procedure. 2 The order on appeal states that the motion to vacate his judgment was brought “pursuant to CR 60.02 or 60.03 and the Eighth and Fourteenth Amendments to the United States Constitution[,]” but the order itself only specifically addresses CR 60.02. 3 Kentucky Rule of Criminal Procedure.
-2- of discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Id. (citation omitted).
III. Analysis
On appeal, Barnett’s line of reasoning is chaotic, but he repeats
essentially the same argument presented to the lower court. He contends that his
legal representation was not effective because she did not disclose her caseload to
him and they “never entered into a meeting of the minds.” He argues that this
amounted to a “constructive fraud” upon the proceedings. However, Barnett gives
no specific facts or evidence to support his argument and seems to be under the
mistaken belief that none is required.4 For example, he does not explain how his
attorney’s caseload affected his representation; he does not state any errors she
made or poor guidance she gave him; nor does he challenge the specific legal
conclusions reached by the trial court in the order on appeal. Limiting our review
to the order on appeal, we address Barnett’s arguments within the confines of
CR 60.02,5 as did the circuit court. D.W. Wilburn, Inc. v. H&H Painting, LLC, 648
S.W.3d 687, 693 (Ky. App. 2022) (citing Fischer v. Fischer, 197 S.W.3d 98, 102
4 His appellate brief states he is “not required to show any evidence other than it was so procured.” 5 CR 60.02, states, in pertinent part, “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: . . . (d) fraud affecting the proceedings, other than perjury or falsified evidence; . . . . The motion shall be made within a reasonable time[.]”
-3- (Ky. 2006) (“An appellate court is without authority to review issues not raised in
or decided by the trial court.”)).
When the circuit court denied Barnett’s motion to vacate his
judgment, its analysis, in part, was as follows:
“CR 60.02 allows appeals based upon claims of error ‘that were unknown and could not have been known to the moving party by exercise of reasonable diligence and in time to have been otherwise presented to the court.’” Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting Young v. Edward Technology Group, Inc., 918 S.W.2d 229, 231 (Ky. App. 1995)). “The movant must demonstrate why he is entitled to this special, extraordinary relief.” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). “The relief is extreme, limited, and reserved for those times when justice itself requires an avenue for the plight endured by the aggrieved party.” [Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017) (citation omitted)].
A motion such as this one is required by the rule to be brought “within a reasonable time.” “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.” [Gross, 648 S.W.2d at 858]. The Kentucky Court of Appeals has held that “four years after he entered his guilty plea, was untimely.” Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007). While this does not mean that four years under any circumstances must be held to be untimely, this court finds that in this case the motion has not been brought within a reasonable time.
Additionally, “a defendant who is in custody under sentence or on probation, parole or conditional discharge, is required to avail himself of RCr 11.42 as to any ground of which he is aware, or should be aware, during the
-4- period when the remedy is available to him. [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.” McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). [Barnett’s] allegation that the caseload of his defense counsel was unduly high should have been presented pursuant to a motion pursuant to RCr 11.42 asserting ineffective assistance of counsel. CR 60.02 does not afford a remedy for the reasons presented.
Furthermore, [Barnett] has not presented sufficient evidence to support his claim of alleged fraud on the part of his counsel or of the Department of Public Advocacy which would have rendered the judgment void because of such fraud. “CR 60.02 requires extrinsic fraud or fraud upon the court. . . . Fraud upon the court is that species of fraud which does or attempts to subvert the integrity of the court itself. Such fraud has been construed to include only the most egregious conduct, such as bribery of a judge or a member of the jury, evidence fabrication, and improper attempts to influence the court by counsel. Generally, fraud between the parties, without more, does not rise to the level of fraud upon the court. . . . Further, extrinsic fraud does not include fraudulent representations or concealments made during court proceedings.” Goldsmith v. Fifth Third Bank, 297 S.W.3d 898, 904 [] (Ky. App.
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