Opinion
NO. 2018-CA-001807-MR
04-03-2020
MARCUS D. SWAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robin C. Bennett Lebanon, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 08-CR-003263-002 OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES. GOODWINE, JUDGE: Marcus D. Swan ("Swan") appeals from a Jefferson Circuit Court order denying his motion for relief pursuant to RCr 11.42 and CR 60.02(f). After careful review, finding no error, we affirm.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
In 2008, Swan and his co-defendant were charged with multiple offenses under two indictments, which resulted in two separate but related cases (Action Nos. 08-CR-003263 and 08-CR-002384). On November 6, 2008, Swan was indicted, in Action No. 08-CR-003263, on three counts of first-degree robbery, two counts of first-degree assault, one count of criminal attempt first-degree sodomy, and one count of first-degree wanton endangerment.
KRS 515.020 (Class B felony).
KRS 508.010 (Class B felony).
KRS 506.010 (Class C felony).
KRS 508.060 (Class D felony).
In a separate indictment dated August 13, 2008, Action No. 08-CR-002384, Swan was charged with one count of first-degree robbery, one count of tampering with physical evidence, seven counts of first-degree unlawful imprisonment, two counts of second-degree assault, one count of first-degree burglary, and five counts of first-degree wanton endangerment. The circuit court tried both cases against both defendants on September 28-30, 2010, and the jury found Swan guilty of four counts of complicity to first-degree robbery, one count of complicity to first-degree burglary, two counts of complicity to first-degree assault, six counts of complicity to first-degree wanton endangerment, and one count of complicity to tampering with physical evidence. On January 5, 2011, Swan was sentenced to the statutory maximum of seventy years of imprisonment under KRS 532.110(1)(c).
KRS 524.100 (Class D felony).
KRS 509.020 (Class D felony).
KRS 511.020 (Class B felony).
Swan then appealed as a matter of right. The Supreme Court of Kentucky affirmed his conviction. Swan v. Commonwealth, 384 S.W.3d 77, 106 (Ky. 2012).
Instead of challenging his conviction in a state postconviction proceeding, Swan chose to pursue relief in federal court. In 2012, he filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky, Louisville Division. The court denied relief. Swan v. Smith, No. 3:12-CV-826-DJH-HBB, 2015 WL 8515674 (W.D. Ky. Dec. 11, 2015). The Sixth Circuit of the United States Court of Appeals subsequently denied Swan's application for certificate of appealability and motion to proceed in forma pauperis. Swan v. Meko, No. 16-5120, 2017 WL 3270780 (6th Cir. May 23, 2017).
On July 23, 2018, Swan filed a motion to vacate judgment pursuant to RCr 11.42 and CR 60.02. He alleged six instances of ineffective assistance of trial counsel and cumulative error. He argued his motion was timely under RCr 11.42 because filing the writ of habeas corpus entitled him to equitable tolling of the statute of limitations. Alternatively, Swan requested review of his claims under CR 60.02. The Commonwealth filed a response in opposition to Swan's motion.
The circuit court heard Swan's motion on October 15, 2018. On November 5, 2018, the circuit court entered an order denying Swan's motion. The court found Swan's RCr 11.42 motion was untimely as it was filed more than three years after the judgment became final, and Swan failed to prove that he was entitled to equitable tolling. The circuit court also found Swan's claims failed under CR 60.02 because the issues raised should have been raised in a timely RCr 11.42 motion. The court further found Swan's claims failed on the merits. This appeal followed.
On appeal, Swan argues the circuit court erred in finding trial counsel was not ineffective in: (1) failing to abide by the wishes of his client regarding the theory of defense and to investigate that defense and (2) advising not to renew the motion to act as hybrid counsel on the morning of trial. Swan makes no argument regarding timeliness on appeal.
The Commonwealth argues the circuit court correctly determined Swan's motion was untimely. "[W]e apply the de novo standard when reviewing counsel's performance under Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citation omitted). RCr 11.42(10) provides:
Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:(Emphasis added.) Swan's judgment became final on December 20, 2012, when the Supreme Court of Kentucky denied a petition for rehearing of an opinion rendered August 23, 2012. Swan waited to file his motion until July 23, 2018, approximately five and one half years after the judgment became final, which is obviously well outside the three-year time limit set forth in RCr 11.42(10). We agree with the circuit court that Swan failed to satisfy any exception that would allow him to file his RCr 11.42 motion outside the mandatory three-year period. The record indicates Swan was aware of all facts at issue, and all constitutional rights at issue were established before the time limit expired.
(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
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
If the judgment becomes final before the effective date of this rule, the time for filing the motion shall commence upon the effective date of this rule. If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's opportunity to present relevant evidence to contradict or impeach the movant's evidence.
Furthermore, the circuit court correctly determined equitable tolling did not apply. "A petitioner is entitled to equitable tolling only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Moorman v. Commonwealth, 484 S.W.3d 751, 756 (Ky. App. 2016) (citations omitted). Below, Swan claimed his appellate counsel advised him that filing a federal petition for writ of habeas corpus would toll the statute of limitations to file a RCr 11.42 motion. The circuit court found his argument regarding the reasonableness of his ignorance of the legal requirement for filing his claim was insufficient, and he failed to prove he was diligent in pursuing his rights and an extraordinary circumstance prevented him from timely filing his motion.
Swan failed to demonstrate that he was entitled to equitable tolling. He was not diligently pursuing his rights as he waited to file his motion until approximately six years after the judgment became final and ten months after the Sixth Circuit denied his petition. He did not present evidence of any extraordinary circumstance that prevented him from timely filing his motion. As such, the circuit court properly denied Swan's motion for relief pursuant to RCr 11.42.
The circuit court also correctly denied Swan's motion under CR 60.02. "We review the denial of a CR 60.02 motion under an abuse of discretion standard." Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
CR 60.02 "may be utilized only in extraordinary situations when relief is not available on direct appeal or under RCr 11.42." Foley, 425 S.W.3d at 884 (citing McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997)). Criminal defendants may not use the rule "as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or an RCr 11.42 proceeding." Id. RCr 11.42(3) requires the movant "state all grounds for holding the sentence invalid of which the movant has knowledge. Thus, final disposition of a movant's RCr 11.42 motion shall conclude all issues which could reasonably have been presented in the same proceeding." Id. (citing Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983)) (footnote omitted). "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, 948 S.W.2d at 416.
The circuit court exercised sound discretion in denying Swan's CR 60.02 motion. Swan's claims should have been raised in a timely RCr 11.42 motion. He may not continue to relitigate issues already raised or that could have been raised on direct appeal or in his RCr 11.42 motion. As such, Swan failed to "demonstrate why he is entitled to this special, extraordinary relief." Gross, 648 S.W.2d at 856.
For the foregoing reasons, we affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Robin C. Bennett
Lebanon, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky