Terrence A. Sims v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: May 30, 2024
• Docket: 2023 CA 000135
• Status: Unknown

Opinion

RENDERED: MAY 31, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0135-MR

TERRENCE A. SIMS APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCY ANNE VANMETER, JUDGE ACTION NO. 13-CR-01023

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Terrence Sims appeals from the Fayette Circuit Court’s

denial of his Kentucky Rule of Civil Procedure (CR) 60.02 motion for

postconviction relief. We affirm.

The trial court sentenced Sims to thirty-five years’ imprisonment

pursuant to a jury’s recommendation after finding him guilty of murder. Our Supreme Court affirmed on direct appeal. Sims v. Commonwealth, No. 2014-SC-

000332-MR, 2015 WL 4980474 (Ky. Aug. 20, 2015).

In 2016, Sims sought postconviction relief pursuant to Kentucky Rule

of Criminal Procedure (RCr) 11.42 based primarily upon allegations his trial

counsel was ineffective. The trial court appointed the Department of Public

Advocacy (DPA) to represent Sims. However, the DPA successfully moved to

withdraw because it concluded the RCr 11.42 proceedings were not one a

reasonable person with adequate means would be willing to pursue. See Kentucky

Revised Statute (KRS) 31.110(2)(c) (providing that if the DPA “and the court . . .

determines that it is not a proceeding that a reasonable person with adequate means

would be willing to bring at his or her own expense, there shall be no further right

to be represented by counsel under the provisions of this chapter”). The trial court

denied Sims’ RCr 11.42 motion. We affirmed. Sims v. Commonwealth, No. 2017-

CA-000603-MR, 2020 WL 1230643 (Ky. App. Mar. 13, 2020).

Sims filed the CR 60.02 motion at hand in August 2022. Sims argued

the DPA was ineffective during the RCr 11.42 proceedings by not arguing that trial

counsel had been ineffective for not objecting to alleged prosecutorial misconduct

at trial. Sims also argued the DPA was ineffective for not arguing during the RCr

11.42 proceedings that trial counsel had been ineffective for not retaining experts

-2- or examining forensic evidence sufficiently. The trial court denied Sims’ CR

60.02 motion, after which he filed this appeal.

As we have explained:

CR 60.02(f) permits a court to grant relief in circumstances of an “extraordinary nature justifying relief.” . . . Our Supreme Court has held there is a “high standard for granting a CR 60.02 motion,” because relief under that rule is meant to be “special” and “extraordinary.” Barnett v. Commonwealth, 979 S.W.2d 98, 101-02 (Ky. 1998). “[B]ecause of the desirability of according finality to judgments, CR 60.02(f) must be invoked only with extreme caution, and only under most unusual circumstances.” Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App. 2004). A trial court’s ruling on a CR 60.02 motion “receives great deference on appeal and will not be overturned except for an abuse of discretion.” Barnett, 979 S.W.2d at 102.

Martin v. Commonwealth, 639 S.W.3d 433, 435 (Ky. App. 2022).

Sims is not entitled to relief. First, Kentucky does not recognize

ineffective postconviction counsel claims. Bowling v. Commonwealth, 981 S.W.2d

545, 552 (Ky. 1998).

Next, contrary to Sims’ assertion, the DPA does not refuse to argue

that DPA-affiliated trial or appellate counsel were ineffective. For example, in

Smith v. Commonwealth, 438 S.W.3d 392 (Ky. App. 2014), the DPA argued the

appellant’s trial and appellate counsel, who were from a local public defender’s

office, were ineffective. And Sims’ claim, unsupported by a preservation

statement or citations to the record or pertinent authority, that the DPA

-3- insufficiently trains prison legal aides is not a proper basis for CR 60.02 relief. In

sum, Sims is not entitled to relief due to the DPA having successfully sought to

withdraw as his counsel in either the RCr 11.42 or these proceedings.

Next, Sims could, and should, have raised his current ineffectiveness

claims in his RCr 11.42 motion. “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 period

when the remedy is available to him.” McQueen v. Commonwealth, 948 S.W.2d

415, 416 (Ky. 1997). Our Supreme Court has expressed a strong preference for

ineffective assistance of counsel claims to be raised via RCr 11.42. See Furnish v.

Commonwealth, 95 S.W.3d 34, 52 (Ky. 2002).

Although Sims couches the current allegations in terms of his

postconviction counsel having been ineffective, their true, substantive gist is that

his trial counsel was ineffective. Sims has not explained why he could not have

raised those allegations in his RCr 11.42 motion since they are not based on newly

discovered evidence. Because these claims could, and should, have been raised in

Sims’ RCr 11.42 motion, they do not provide a proper basis for CR 60.02 relief.

Sims argues he should be excused from failing to raise these claims

earlier because he is proceeding pro se. But Sims was able to raise other claims of

ineffective assistance of counsel in his pro se RCr 11.42 motion. There is no

-4- obvious logical reason why he could not have raised these claims alongside those

he previously raised.

As we have held, albeit in a civil case, “[p]roceeding pro se does not

provide one with a license not to comply with relevant rules of procedural and

substantive law.” Smith v. Bear, Inc., 419 S.W.3d 49, 55 (Ky. App. 2013) (internal

quotation marks and citation omitted). That logic applies here. See McQueen, 948

S.W.2d at 416 (holding that 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”) (internal quotation marks

and citations omitted). The fact that appellate courts have sometimes leniently

chosen to not sanction a pro se litigant who failed to comply fully with rules

governing the formatting and content of appellate briefs has nothing to do with,

and does not excuse, Sims’ failure to raise these claims in his RCr 11.42 motion.

Finally, we reject Sims’ argument that the trial court used an incorrect

standard of review. To the contrary, the trial court cited relevant Kentucky

authority governing CR 60.02 motions. The federal habeas corpus cases cited by

Sims are inapplicable.

For the foregoing reasons, the Fayette Circuit Court is affirmed.

ALL CONCUR.

-5- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Terrence Sims, pro se Russell Coleman West Liberty, Kentucky Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

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