RENDERED: FEBRUARY 19, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1812-MR
TROY D. WADE APPELLANT
APPEAL FROM MEADE CIRCUIT COURT v. HONORABLE KENNETH HAROLD GOFF, II, JUDGE ACTION NO. 04-CR-00120
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
ACREE, JUDGE: Troy Wade, pro se, appeals the Meade Circuit Court’s order
denying his RCr1 11.42 and CR2 60.02 motions for post-conviction relief filed
more than ten years after final judgment. He claims he received ineffective
assistance of counsel at trial. Finding no error, we affirm.
1 Kentucky Rules of Criminal Procedure. 2 Kentucky Rules of Civil Procedure. BACKGROUND AND PROCEDURE
Wade was convicted by a jury of possession of a controlled substance
(cocaine) in the first degree, possession of marijuana, failure to register transfer of
a motor vehicle, and being a persistent felony offender in the first degree. A final
judgment of conviction was entered on September 29, 2005, sentencing Wade to a
total of twenty years in prison. (Trial Record “T.R.” Vol. IV3 at 491-95.) He took
a direct appeal to the Kentucky Supreme Court, which affirmed his conviction on
May 24, 2007. Wade v. Commonwealth, No. 2005-SC-000844-MR, 2007 WL
1536858, at *1 (Ky. May 24, 2007).4 Finality occurred on June 14, 2007.
On June 10, 2008, Wade filed his first RCr 11.42 motion with the
circuit court. That motion failed to specify what grounds, if any, warranted relief.
(T.R. Vol. V at 8-11.) Rather, Wade appears to have been seeking appointment of
counsel to assist him in preparing his motion. Because the motion failed to
“specify any grounds and supporting facts that, if true, would warrant relief,” the
circuit court summarily dismissed the motion on July 9, 2008, without an
evidentiary hearing. (Id. at 17.) Wade did not appeal that ruling.
3 The first four volumes of the written portion of the record are labeled Volumes I-IV, encased in red binding. The record then restarts, with an additional four volumes, labeled Volumes I-IV, encased in black binding. Based on the chronology, we refer to the red-bound record as Volumes I-IV and the black-bound record as volumes V-VIII. 4 A separate appeal was filed relating to a 2008 forfeiture order. This Court affirmed, in part, and reversed, in part, on April 11, 2008. (T.R. Vol. V at 1-6.) This order is not relevant to the current appeal.
-2- On February 13, 2019, Wade again sought post-conviction relief. He
filed a second RCr 11.42 motion in conjunction with a CR 60.02 motion, captioned
“CR 60.02 (E) (F) REQUEST FOR MODIFICATION OF SENTENCE.” In both
motions he alleged, among other things, that his counsel was ineffective. (Id. at
85-100.) The circuit court denied both motions without an evidentiary hearing. It
concluded Wade’s RCr 11.42 motion was filed outside the three-year window for
filing such a motion. Nevertheless, the court analyzed Wade’s claims and
concluded his counsel did not render ineffective or prejudicial assistance. Lastly, it
concluded the issues raised in his CR 60.02 motion should have been raised on
direct appeal or in his RCr 11.42 motion. This appeal followed.
ANALYSIS
Wade raises before this Court a plethora of claims which were
included in both his RCr 11.42 and CR 60.02 motions before the circuit court. He
contends proof of ineffective representation is found in his counsel’s: (1) failure to
challenge the search and seizure of his vehicle at the time of arrest; (2) failure to
present to the jury and preserve in the record the fact that his co-defendant pleaded
guilty to possession of the drugs found in his vehicle; (3) encouraging him to reject
a plea offer in lieu of proceeding to trial; (4) failure to preserve an objection to
prosecutorial misconduct by the Commonwealth’s Attorney; and (5) proceeding to
trial when “key witnesses” were not present. In addition, he claims he was denied
-3- the right to confront key witnesses and that the Commonwealth’s Attorney
presented false and misleading evidence to the jury. These arguments can be
dispatched easily without the need to assess the merits of each claim.
First, we note this is Wade’s second RCr 11.42 motion. As we have
said before:
Our 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. Butler v. Commonwealth, 473 S.W.2d 108, 109 (Ky. 1971). “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.” Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970) (citing Kennedy v. Commonwealth, 451 S.W.2d 158, 159 (Ky. 1970)).
Cardwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011).
Although Wade’s initial RCr 11.42 motion did not raise any specific
grounds for relief, the aforementioned claims unquestionably could and should
have been pursued in the previous motion for post-conviction relief. Accordingly,
the underlying matter is a prohibited successive RCr 11.42 motion.
Second, a RCr 11.42 motion must be:
filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
-4- (b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
RCr 11.42(10). Wade’s motion was filed more than ten years after his judgment
became final. He does not allege, and this Court does not find, that either
exception applies. The RCr 11.42 motion is clearly an untimely filing.
Now we turn to Wade’s CR 60.02 motion. A motion based on CR
60.02(e) and (f) must be filed “within a reasonable time[.]” CR 60.02. Such a
motion is untimely if the delay in bringing it is substantial and unexplained.
Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009) (unexplained
delay of seven years before bringing motion is unreasonable). A circuit court’s
denial of a motion for CR 60.02 relief is reviewed for abuse of discretion.
Commonwealth v. Bustamonte, 140 S.W.3d 581, 583 (Ky. App. 2004).
Over ten years elapsed between the entry of final judgment and
Wade’s CR 60.02 motion currently on appeal. He provides no explanation for
such a delay. As with the motion based on RCr 11.42, this motion based on CR
60.02 is untimely.
Additionally, Wade’s use of CR 60.02 is improper. As established by
our Supreme Court:
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
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RENDERED: FEBRUARY 19, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1812-MR
TROY D. WADE APPELLANT
APPEAL FROM MEADE CIRCUIT COURT v. HONORABLE KENNETH HAROLD GOFF, II, JUDGE ACTION NO. 04-CR-00120
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
ACREE, JUDGE: Troy Wade, pro se, appeals the Meade Circuit Court’s order
denying his RCr1 11.42 and CR2 60.02 motions for post-conviction relief filed
more than ten years after final judgment. He claims he received ineffective
assistance of counsel at trial. Finding no error, we affirm.
1 Kentucky Rules of Criminal Procedure. 2 Kentucky Rules of Civil Procedure. BACKGROUND AND PROCEDURE
Wade was convicted by a jury of possession of a controlled substance
(cocaine) in the first degree, possession of marijuana, failure to register transfer of
a motor vehicle, and being a persistent felony offender in the first degree. A final
judgment of conviction was entered on September 29, 2005, sentencing Wade to a
total of twenty years in prison. (Trial Record “T.R.” Vol. IV3 at 491-95.) He took
a direct appeal to the Kentucky Supreme Court, which affirmed his conviction on
May 24, 2007. Wade v. Commonwealth, No. 2005-SC-000844-MR, 2007 WL
1536858, at *1 (Ky. May 24, 2007).4 Finality occurred on June 14, 2007.
On June 10, 2008, Wade filed his first RCr 11.42 motion with the
circuit court. That motion failed to specify what grounds, if any, warranted relief.
(T.R. Vol. V at 8-11.) Rather, Wade appears to have been seeking appointment of
counsel to assist him in preparing his motion. Because the motion failed to
“specify any grounds and supporting facts that, if true, would warrant relief,” the
circuit court summarily dismissed the motion on July 9, 2008, without an
evidentiary hearing. (Id. at 17.) Wade did not appeal that ruling.
3 The first four volumes of the written portion of the record are labeled Volumes I-IV, encased in red binding. The record then restarts, with an additional four volumes, labeled Volumes I-IV, encased in black binding. Based on the chronology, we refer to the red-bound record as Volumes I-IV and the black-bound record as volumes V-VIII. 4 A separate appeal was filed relating to a 2008 forfeiture order. This Court affirmed, in part, and reversed, in part, on April 11, 2008. (T.R. Vol. V at 1-6.) This order is not relevant to the current appeal.
-2- On February 13, 2019, Wade again sought post-conviction relief. He
filed a second RCr 11.42 motion in conjunction with a CR 60.02 motion, captioned
“CR 60.02 (E) (F) REQUEST FOR MODIFICATION OF SENTENCE.” In both
motions he alleged, among other things, that his counsel was ineffective. (Id. at
85-100.) The circuit court denied both motions without an evidentiary hearing. It
concluded Wade’s RCr 11.42 motion was filed outside the three-year window for
filing such a motion. Nevertheless, the court analyzed Wade’s claims and
concluded his counsel did not render ineffective or prejudicial assistance. Lastly, it
concluded the issues raised in his CR 60.02 motion should have been raised on
direct appeal or in his RCr 11.42 motion. This appeal followed.
ANALYSIS
Wade raises before this Court a plethora of claims which were
included in both his RCr 11.42 and CR 60.02 motions before the circuit court. He
contends proof of ineffective representation is found in his counsel’s: (1) failure to
challenge the search and seizure of his vehicle at the time of arrest; (2) failure to
present to the jury and preserve in the record the fact that his co-defendant pleaded
guilty to possession of the drugs found in his vehicle; (3) encouraging him to reject
a plea offer in lieu of proceeding to trial; (4) failure to preserve an objection to
prosecutorial misconduct by the Commonwealth’s Attorney; and (5) proceeding to
trial when “key witnesses” were not present. In addition, he claims he was denied
-3- the right to confront key witnesses and that the Commonwealth’s Attorney
presented false and misleading evidence to the jury. These arguments can be
dispatched easily without the need to assess the merits of each claim.
First, we note this is Wade’s second RCr 11.42 motion. As we have
said before:
Our 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. Butler v. Commonwealth, 473 S.W.2d 108, 109 (Ky. 1971). “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.” Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970) (citing Kennedy v. Commonwealth, 451 S.W.2d 158, 159 (Ky. 1970)).
Cardwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011).
Although Wade’s initial RCr 11.42 motion did not raise any specific
grounds for relief, the aforementioned claims unquestionably could and should
have been pursued in the previous motion for post-conviction relief. Accordingly,
the underlying matter is a prohibited successive RCr 11.42 motion.
Second, a RCr 11.42 motion must be:
filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
-4- (b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
RCr 11.42(10). Wade’s motion was filed more than ten years after his judgment
became final. He does not allege, and this Court does not find, that either
exception applies. The RCr 11.42 motion is clearly an untimely filing.
Now we turn to Wade’s CR 60.02 motion. A motion based on CR
60.02(e) and (f) must be filed “within a reasonable time[.]” CR 60.02. Such a
motion is untimely if the delay in bringing it is substantial and unexplained.
Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009) (unexplained
delay of seven years before bringing motion is unreasonable). A circuit court’s
denial of a motion for CR 60.02 relief is reviewed for abuse of discretion.
Commonwealth v. Bustamonte, 140 S.W.3d 581, 583 (Ky. App. 2004).
Over ten years elapsed between the entry of final judgment and
Wade’s CR 60.02 motion currently on appeal. He provides no explanation for
such a delay. As with the motion based on RCr 11.42, this motion based on CR
60.02 is untimely.
Additionally, Wade’s use of CR 60.02 is improper. As established by
our Supreme Court:
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
-5- 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 11.42, and thereafter in CR 60.02. CR 60.02 is not intended merely as an additional opportunity to raise Boykin[5] 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). Accordingly, “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.”
Id. at 857.
As noted above, the claims of error alleged before this Court could
have been raised on either direct appeal or in Wade’s first RCr 11.42 motion. The
circuit court did not abuse its discretion when it denied Wade’s motion without
conducting a hearing.
5 Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
-6- CONCLUSION
For the reasons stated above, we affirm the Meade Circuit Court’s
order denying Wade’s motions brought pursuant to RCr 11.42 and CR 60.02.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Troy D. Wade, pro se Daniel Cameron Lexington, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-7-