RENDERED: FEBRUARY 24, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0774-MR
BENJAMIN DELBERT COFFEY APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NO. 04-CR-00010
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Benjamin Coffey appeals from the denial of his CR1 60.02
post-conviction motion. We affirm.
In 2004, Coffey was indicted for rape in the first degree, sodomy in
the first degree, and kidnapping. Soon thereafter, the McCreary Circuit Court
ordered Coffey to undergo a competency evaluation. According to a competency
1 Kentucky Rule of Civil Procedure. report submitted to the trial court in June 2004, Coffey had intellectual disabilities
but was competent. That same month, Coffey reached a plea agreement with the
Commonwealth which called for him to plead guilty to all three charges in the
indictment and to receive thirty years’ imprisonment (ten years on each charge, to
be served consecutively).2 The trial court sentenced Coffey in accordance with the
plea agreement in August 2004.
Nearly three years later, Coffey submitted a post-conviction motion
pursuant to RCr3 11.42. The motion tersely asserted without explanation that
Coffey’s counsel had been ineffective. Coffey filed a motion to supplement which
asserted his counsel had coerced him into pleading guilty and his guilty plea was
improper because he was incompetent. Finally, the motion to supplement asserted
that the victim had been “a willing participant to the early morning rendezvous.”
Record (R.) at 96. The trial court denied both the RCr 11.42 and the motion to
supplement without the Commonwealth even having filed a response. Coffey’s
appeal was eventually dismissed.
The record contains no subsequent activity until November 2016,
when Coffey filed his first CR 60.02 motion. That motion lacks clarity, but it
2 The record before us does not contain any videotapes or transcripts of any proceedings, so we cannot know what discussions regarding Coffey’s competency or intellectual disabilities (or any other pertinent matters) may have occurred. 3 Kentucky Rule of Criminal Procedure.
-2- generally alleges Coffey was coerced by counsel into pleading guilty. The
Commonwealth filed a response asserting, among other things, that the motion was
untimely.4 In December 2019, the trial court granted Coffey’s motion to withdraw
that CR 60.02 motion.
That same month, Coffey filed the CR 60.02 motion at hand. Coffey
raises various arguments, including sundry allegations his counsel was ineffective
and that there was insufficient evidence to support the rape and sodomy
convictions. The trial court eventually denied Coffey’s CR 60.02 motion in
February 2021. Coffey then filed this appeal.
“It is within the sound discretion of the trial court whether to grant or
deny relief pursuant to CR 60.02[,]” so our review is pursuant to the abuse of
discretion standard. Priddy v. Commonwealth, 629 S.W.3d 14, 17 (Ky. App.
2021). “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Therefore, we will affirm the lower court’s decision unless there is a showing of
some flagrant miscarriage of justice.” Foley v. Commonwealth, 425 S.W.3d 880,
886 (Ky. 2014) (internal quotation marks and citations omitted).
4 See CR 60.02(f) (requiring a motion brought under that subsection to be “made within a reasonable time”).
-3- Coffey is not entitled to an examination of his arguments on the
merits, much less relief, for three main reasons. First, the entry of a valid guilty
plea waives nearly all issues. See, e.g., Jackson v. Commonwealth, 363 S.W.3d 11,
16 (Ky. 2012). Thus, for example, Coffey has waived his sufficiency of the
evidence arguments. As we have held, “[p]ost-judgment challenges to sufficiency
of the evidence are precluded by unconditional guilty pleas.” Applegate v.
Commonwealth, 577 S.W.3d 83, 89 (Ky. App. 2018). See also Taylor v.
Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986) (explaining that “[t]he
reasoning behind such a conclusion is obvious. A defendant who elects to
unconditionally plead guilty admits the factual accuracy of the various elements of
the offenses with which he is charged. By such an admission, a convicted
appellant forfeits the right to protest at some later date that the state could not have
proven that he committed the crimes to which he pled guilty. To permit a
convicted defendant to do so would result in a double benefit in that defendants
who elect to plead guilty would receive the benefit of the plea bargain which
ordinarily precedes such a plea along with the advantage of later challenging the
sentence resulting from the plea on grounds normally arising in the very trial which
defendant elected to forego.”).
-4- Second, Coffey did not submit his motion within a reasonable time, as
required by CR 60.02(f).5 Of course, “there is no specific prescribed time within
which claims made pursuant to CR 60.02(e) or (f) must be filed.” Priddy, 629
S.W.3d at 18. But, without adequate explanation, Coffey waited roughly fifteen
years after his sentencing to submit this second CR 60.02 motion. We have
repeatedly held that CR 60.02 motions submitted sooner were untimely. See, e.g.,
Reyna, 217 S.W.3d at 276 (four-year delay unreasonable); Djoric v.
Commonwealth, 487 S.W.3d 908, 910 (Ky. App. 2016) (nearly thirteen-year delay
unreasonable); Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009)
(seven-year delay unreasonable).
Third, Coffey’s motion is procedurally improper because it contains
allegations which could, and should, have been raised sooner. It is also successive.
As our Supreme Court explained, “[a]t each stage . . . the defendant is required to
raise all issues then amenable to review, and generally issues that either were or
could have been raised at one stage will not be entertained at any later stage.”
Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010). Thus, “CR 60.02 is
5 Though the Commonwealth argues in its brief that the motion was not brought in a timely manner and is successive, the trial court did not explicitly so hold. Nonetheless, we may. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (“Although not stated as reason for the denial of his CR 60.02(f) [motion], the trial court would certainly have been within its discretion had it held that the motion was not brought within a reasonable time.”). See also, e.g., McCloud v. Commonwealth, 286 S.W.3d 780, 786 n. 19 (Ky.
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RENDERED: FEBRUARY 24, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0774-MR
BENJAMIN DELBERT COFFEY APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NO. 04-CR-00010
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Benjamin Coffey appeals from the denial of his CR1 60.02
post-conviction motion. We affirm.
In 2004, Coffey was indicted for rape in the first degree, sodomy in
the first degree, and kidnapping. Soon thereafter, the McCreary Circuit Court
ordered Coffey to undergo a competency evaluation. According to a competency
1 Kentucky Rule of Civil Procedure. report submitted to the trial court in June 2004, Coffey had intellectual disabilities
but was competent. That same month, Coffey reached a plea agreement with the
Commonwealth which called for him to plead guilty to all three charges in the
indictment and to receive thirty years’ imprisonment (ten years on each charge, to
be served consecutively).2 The trial court sentenced Coffey in accordance with the
plea agreement in August 2004.
Nearly three years later, Coffey submitted a post-conviction motion
pursuant to RCr3 11.42. The motion tersely asserted without explanation that
Coffey’s counsel had been ineffective. Coffey filed a motion to supplement which
asserted his counsel had coerced him into pleading guilty and his guilty plea was
improper because he was incompetent. Finally, the motion to supplement asserted
that the victim had been “a willing participant to the early morning rendezvous.”
Record (R.) at 96. The trial court denied both the RCr 11.42 and the motion to
supplement without the Commonwealth even having filed a response. Coffey’s
appeal was eventually dismissed.
The record contains no subsequent activity until November 2016,
when Coffey filed his first CR 60.02 motion. That motion lacks clarity, but it
2 The record before us does not contain any videotapes or transcripts of any proceedings, so we cannot know what discussions regarding Coffey’s competency or intellectual disabilities (or any other pertinent matters) may have occurred. 3 Kentucky Rule of Criminal Procedure.
-2- generally alleges Coffey was coerced by counsel into pleading guilty. The
Commonwealth filed a response asserting, among other things, that the motion was
untimely.4 In December 2019, the trial court granted Coffey’s motion to withdraw
that CR 60.02 motion.
That same month, Coffey filed the CR 60.02 motion at hand. Coffey
raises various arguments, including sundry allegations his counsel was ineffective
and that there was insufficient evidence to support the rape and sodomy
convictions. The trial court eventually denied Coffey’s CR 60.02 motion in
February 2021. Coffey then filed this appeal.
“It is within the sound discretion of the trial court whether to grant or
deny relief pursuant to CR 60.02[,]” so our review is pursuant to the abuse of
discretion standard. Priddy v. Commonwealth, 629 S.W.3d 14, 17 (Ky. App.
2021). “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Therefore, we will affirm the lower court’s decision unless there is a showing of
some flagrant miscarriage of justice.” Foley v. Commonwealth, 425 S.W.3d 880,
886 (Ky. 2014) (internal quotation marks and citations omitted).
4 See CR 60.02(f) (requiring a motion brought under that subsection to be “made within a reasonable time”).
-3- Coffey is not entitled to an examination of his arguments on the
merits, much less relief, for three main reasons. First, the entry of a valid guilty
plea waives nearly all issues. See, e.g., Jackson v. Commonwealth, 363 S.W.3d 11,
16 (Ky. 2012). Thus, for example, Coffey has waived his sufficiency of the
evidence arguments. As we have held, “[p]ost-judgment challenges to sufficiency
of the evidence are precluded by unconditional guilty pleas.” Applegate v.
Commonwealth, 577 S.W.3d 83, 89 (Ky. App. 2018). See also Taylor v.
Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986) (explaining that “[t]he
reasoning behind such a conclusion is obvious. A defendant who elects to
unconditionally plead guilty admits the factual accuracy of the various elements of
the offenses with which he is charged. By such an admission, a convicted
appellant forfeits the right to protest at some later date that the state could not have
proven that he committed the crimes to which he pled guilty. To permit a
convicted defendant to do so would result in a double benefit in that defendants
who elect to plead guilty would receive the benefit of the plea bargain which
ordinarily precedes such a plea along with the advantage of later challenging the
sentence resulting from the plea on grounds normally arising in the very trial which
defendant elected to forego.”).
-4- Second, Coffey did not submit his motion within a reasonable time, as
required by CR 60.02(f).5 Of course, “there is no specific prescribed time within
which claims made pursuant to CR 60.02(e) or (f) must be filed.” Priddy, 629
S.W.3d at 18. But, without adequate explanation, Coffey waited roughly fifteen
years after his sentencing to submit this second CR 60.02 motion. We have
repeatedly held that CR 60.02 motions submitted sooner were untimely. See, e.g.,
Reyna, 217 S.W.3d at 276 (four-year delay unreasonable); Djoric v.
Commonwealth, 487 S.W.3d 908, 910 (Ky. App. 2016) (nearly thirteen-year delay
unreasonable); Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009)
(seven-year delay unreasonable).
Third, Coffey’s motion is procedurally improper because it contains
allegations which could, and should, have been raised sooner. It is also successive.
As our Supreme Court explained, “[a]t each stage . . . the defendant is required to
raise all issues then amenable to review, and generally issues that either were or
could have been raised at one stage will not be entertained at any later stage.”
Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010). Thus, “CR 60.02 is
5 Though the Commonwealth argues in its brief that the motion was not brought in a timely manner and is successive, the trial court did not explicitly so hold. Nonetheless, we may. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (“Although not stated as reason for the denial of his CR 60.02(f) [motion], the trial court would certainly have been within its discretion had it held that the motion was not brought within a reasonable time.”). See also, e.g., McCloud v. Commonwealth, 286 S.W.3d 780, 786 n. 19 (Ky. 2009) (noting that “it is well-settled that an appellate court may affirm a lower court for any reason supported by the record”).
-5- not a separate avenue of appeal to be pursued in addition to other remedies, but is
available only to raise issues which cannot be raised in other proceedings.”
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Coffey’s claims
are procedurally barred because he has not shown that he was unable to raise them
sooner, such as in his RCr 11.42 motion. See, e.g., Sanders v. Commonwealth, 339
S.W.3d 427, 437 (Ky. 2011) (“A review of the grounds for relief listed above
demonstrates that each of the claims, with the exercise of reasonable diligence,
could have been brought either in Appellant’s direct appeal or in his RCr 11.42
proceeding. As such, they do not qualify to be brought in a CR 60.02 proceeding.
Moreover, the claims are of the usual procedural, evidentiary, and ineffective
assistance of counsel variety, and do not implicate the extraordinary sort of claim
contemplated under CR 60.02(f).”).
For example, our Supreme Court has expressed a strong preference
for ineffective assistance of counsel claims to be raised via RCr 11.42. Furnish v.
Commonwealth, 95 S.W.3d 34, 52 (Ky. 2002) (holding that ineffective assistance
of counsel claims “are not properly raised on direct appeal, but rather must proceed
by way of a post-trial motion under RCr 11.42”). Because Coffey should have
raised his ineffective assistance of counsel claims in his RCr 11.42 motion, he may
not properly do so here. Also, for similar reasons, Coffey may not now raise
-6- arguments regarding his alleged incompetency. See Owens v. Commonwealth, 512
S.W.3d 1, 14-15 (Ky. App. 2017).
Finally, this is Coffey’s second CR 60.02 motion. Precedent plainly
holds that “CR 60.02 does not permit successive post-judgment motions . . . .”
Foley, 425 S.W.3d at 884. Coffey has not shown why he could not have raised all
of the issues in this second CR 60.02 motion in his RCr 11.42 motion or his first
CR 60.02 motion. “The courts are not required to entertain a second or successive
motion for similar relief from the same prisoner.” Reado v. Commonwealth, 408
S.W.2d 438, 438 (Ky. 1966). See also, e.g., Cardwell v. Commonwealth, 354
S.W.3d 582, 585 (Ky. App. 2011) (declining to address arguments raised in a
successive CR 60.02 motion because “[o]ur case law has long held that we will not
consider successive motions to vacate a conviction when those motions recite
grounds for relief that have been or should have been raised earlier. The courts
have much more to do than occupy themselves with successive reruns of RCr
11.42 motions stating grounds that have or should have been presented earlier.”)
(internal quotation marks and citations omitted).
In short, Coffey waited too long to submit his CR 60.02 motion, it
contains allegations which he could, and should, have raised in earlier proceedings,
and it is an impermissible proverbial second bite at the CR 60.02 apple. Coffey
has offered no compelling arguments to the contrary. Thus, though our reasoning
-7- is not precisely the same, we affirm the McCreary Circuit Court’s denial of
Benjamin Coffey’s CR 60.02 motion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Benjamin D. Coffey, pro se Daniel Cameron La Grange, Kentucky Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
-8-