Opinion
NO. 2012-CA-000349-MR
04-12-2013
EUGENE GOBLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Eugene Goble, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE KIMBERLEY C. CHILDERS, JUDGE
NO. 91-CR-00002
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Eugene Goble appeals from the November 14, 2011 order of Knott Circuit Court denying his post-conviction motion for relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 and Kentucky Rules of Criminal Procedure (RCr) 10.26. We affirm.
In 1992, a jury found Goble guilty of two counts of incest, two counts of first-degree sodomy, two counts of third-degree sodomy, and rape. With one exception, the Kentucky Supreme Court affirmed Goble's convictions. Goble v. Commonwealth, No. 1993-SC-000088-MR (Ky. Oct. 28, 1993).
The Supreme Court reversed one of Goble's convictions for incest on the ground that Goble was entitled to a jury instruction on the lesser-included offense of third-degree sexual abuse. Goble was not retried on that charge.
In 1997, Goble filed a motion to vacate his convictions, pursuant to RCr 11.42, in which he claimed ineffective assistance of counsel. The motion was denied and no appeal taken from that order.
No additional activity occurred in Goble's case until 2011 when he filed a motion for relief pursuant to CR 60.02 and RCr 10.26. He claimed therein that there was insufficient evidence to support his convictions, and that he was refused the opportunity to present DNA evidence at trial. The circuit court denied Goble's motion in an order entered on November 14, 2011. This appeal followed.
We review a trial court's ruling on a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (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). Additionally, we review unpreserved issues brought under RCr 10.26 for palpable error. Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010).
Under this standard, this Court will only reverse an error which is both "palpable" and which "affects the substantial rights of a party" if "manifest injustice resulted from the error." Wiley, 348 S.W.3d at 574 (citations omitted). Manifest injustice is evident if the error "so seriously affected the fairness, integrity, or public reputation of the proceeding as to be 'shocking or jurisprudentially intolerable.'" Id. (citations omitted).
Goble's sole argument on appeal is that the circuit court abused its discretion when it denied him relief pursuant to CR 60.02 and RCr 10.26. As he did before the circuit court, Goble continues to argue there was insufficient evidence to support his convictions, and that he was improperly denied the opportunity to present DNA evidence at trial.
Goble does not specify under which subsection of CR 60.02 he is seeking relief.
--------
"CR 60.02 is designed to provide relief where the reasons for the relief are of an extraordinary nature." U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 541 (Ky. App. 2007) (citation omitted). "Moreover, one of the chief factors guiding the granting of CR 60.02 relief is the moving party's ability to present his claim prior to the entry of the order sought to be set aside." Id. at 541-42 (emphasis added). CR 60.02 is not to be used as a vehicle to relitigate the same issues which could reasonably have been raised on direct appeal or in an RCr 11.42 proceeding. See McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); Goldsmith v. Fifth Third Bank, 297 S.W.3d 898, 903 (Ky. App. 2009).
It has long been the policy of this court that errors occurring during the trial should be corrected on direct appeal, and the grounds set forth under the various subsections of CR 60.02 deal with extraordinary situations which do not as a rule appear during the progress of a trial.Howard v. Commonwealth, 364 S.W.2d 809, 810 (Ky. 1963).
The matters raised by Goble could, and should, have been addressed within his direct appeal or by the timely filing of an RCr 11.42 motion. Under the guise of CR 60.02, Goble seeks to call into question and wishes to relitigate the evidence upon which his convictions were based. That is not the purpose of a CR 60.02 motion. McQueen, 948 S.W.2d at 416. Goble has a failed to bring to light any newly discovered evidence which would bring about a different result and, therefore, has failed to show the presence of extraordinary circumstances or manifest injustice which would warrant reversal under either CR 60.02 or RCr 10.26. See Howard, 364 S.W.2d 809; Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983).
Moreover, it is imperative that a CR 60.02 motion be filed "within a reasonable time." CR 60.02. What constitutes a reasonable time is a fact-specific inquiry that lends "itself to the discretion of the trial court." Gross, 648 S.W.2d at 858. As the trial court found, and we agree, Goble's CR 60.02 motion, filed nineteen years after his convictions, does not meet the "reasonable time" criterion.
The circuit court did not abuse its discretion when it denied Goble's motion for CR 60.02 relief. Accordingly, the November 14, 2011 order of the Knott Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Eugene Goble, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky