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Lee v. Commonwealth2/28/2003
AFFIRMING
This is an appeal from an order of the Fayette Circuit Court which denied appellant's request for relief pursuant to CR 60.02. We affirm.
On April 25, 1995, appellant pled guilty to a fourth offense of operating a motor vehicle under the influence (DUI), and to being a persistent felony offender in the first degree (PFO). He received a ten-year sentence which was probated for a period of five years. However, appellant violated the terms of his probation, and he was remanded to the custody of the state to serve his sentence.
In September 1996, appellant filed a motion, pursuant to RCr 11.42, requesting the trial court to vacate his sentence on the grounds that he had received ineffective assistance of counsel, that the indictment was void for failure to provide him with notice of his offenses, and that he should have been charged with third offense DUI, a misdemeanor, rather than fourth offense DUI, a felony, because more than five years had elapsed between his first DUI and his most recent DUI. The trial court denied the motion, and appellant filed an appeal which was subsequently dismissed because he failed to file a brief with the court.
Thereafter, in July 2001, appellant filed a motion with the trial court requesting relief pursuant to CR 60.02. Appellant again alleged that he had received ineffective assistance of counsel, and that he was wrongly convicted of a fourth offense of DUI rather than a third offense. In addition, he argued that his convictions violated the rule against double jeopardy. Again the trial court overruled his motion, and appellant filed the current appeal.
Our supreme court has clearly limited the applicability of CR 60.02 by stating:
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. Civil Rule 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. The obvious purpose of this principal is to prevent the relitigation of issues which either were or could have been litigated in a similar proceeding.... In summary, CR 60.02 is 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, Ky., 948 S.W.2d 415, 416 (1997) (citations omitted).
In addition, a trial court's decision to deny a CR 60.02 motion will not be disturbed absent an abuse of discretion. Barnett v. Commonwealth, Ky., 979 S.W.2d 98, 102 (1998).
Appellant has raised three arguments to support his CR 60.02 motion. However, both the ineffective assistance of counsel claim and the allegation that he should have been convicted of misdemeanor DUI, rather than felony DUI, were pled by appellant in support of his previously denied RCr 11.42 motion. Thus, appellant's only new argument is that "the Commonwealth did strike twice," suggesting that he believes his convictions for both felony DUI and being a PFO violate the prohibition against double jeopardy. This assertion does not allege any new or extraordinary circumstances entitling appellant to relief, and all of the grounds that he now relies on either were, or should have been, raised in his motion for RCr 11.42 relief. McQueen, 948 S.W.2d at 416. Based on the stated purpose of CR 60.02, as well as the strict standard with which the decisions of trial courts are reviewed, we do not believe that appellant is entitled to a
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