Opinion
NO. 2012-CA-001657-MR
03-14-2014
ADAM ANTHONY BARKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Adam Anthony Barker, Pro Se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 04-CR-003560
OPINION
AFFIRMING
BEFORE: COMBS, DIXON, AND VANMETER, JUDGES. VANMETER, JUDGE: Adam Anthony Barker appeals from the August 28, 2012, opinion and order of the Jefferson Circuit Court, which denied his motion for Kentucky Rules of Civil Procedure (CR) 60.02 relief. Because we hold that the trial court did not err when it failed to hold an evidentiary hearing, we affirm.
In 2006, a jury found Barker guilty of wanton murder, two counts of first degree assault, five counts of second degree assault, and tampering with physical evidence. Barker waived jury sentencing and accepted the Commonwealth's offer of forty years in all counts, to run concurrently with his guilty pleas in two separate indictments. In 2009, Barker filed a motion to vacate, set aside, or correct his sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, in which he raised various claims of ineffective assistance of counsel. His motion was denied and this Court affirmed that denial. See Barker v. Commonwealth, 2009-CA-001079-MR, 2011 WL 1327141 (Ky.App. 2011). Barker next filed a motion to vacate or set aside his sentence pursuant to 60.02(f), in which he again alleged several grounds of ineffective assistance of counsel. His motion was denied without a hearing and this appeal followed.
We review a trial court's disposition of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83 (Ky. App. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (citation omitted). Barker's only argument on appeal is that the trial court erred when it failed to hold an evidentiary hearing on his motion. We disagree.
"In order to be eligible for CR 60.02 relief, the movant must demonstrate why he is entitled to this special, extraordinary relief." Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting Barnett v. Commonwealth, 979 S.W.2d 98, 101 (Ky.1998)). "The rule is not intended as merely an additional opportunity to raise claims which could and should have been raised in prior proceedings, but, rather, is for relief that is not available by direct appeal and not available under RCr 11.42." Id. at 437 (citation omitted). Moreover, "[b]efore 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). Here, Barker previously sought, and was denied, RCr 11.42 relief. Barker's current claims of ineffective assistance of counsel could and should have been brought in that previous motion for relief. Sanders, 339 S.W.3d 427. He has failed to show the presence of extraordinary circumstances or manifest injustice which would warrant additional review under CR 60.02. See Howard, 364 S.W.2d 809 (Ky. 1963); Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983). Accordingly, the trial court did not abuse its discretion when it denied his motion without a hearing.
For the foregoing reasons, the August 28, 2012, opinion and order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Adam Anthony Barker, Pro Se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky