Opinion
NO. 2012-CA-000188-MR
02-22-2013
DONALD RAY VIOLETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Donald Ray Violett, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Christian K.R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NOS. 92-CR-00532 AND 92-CR-00626
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. TAYLOR, JUDGE: Donald Ray Violett brings this pro se appeal from a December 15, 2011, order of the Warren Circuit Court denying sundry postconviction motions filed by Violett. We affirm.
Violett was convicted of 141 counts of first-degree sexual abuse and five counts of first-degree rape. He was sentenced to consecutive terms for a total of 754 years of imprisonment. The conviction and sentence of imprisonment was ultimately affirmed by the Supreme Court in Violett v. Commonwealth, 907 S.W.2d 773 (Ky. 1995).
Thereafter, Violett filed numerous postconviction motions, including multiple Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02 motions. These postconviction motions were denied and ultimately affirmed on appeal.
There were numerous appeals from the denial of Donald Ray Violett's postconviction motions (Appeal No. 2008-CA-002374-MR, 2006-CA-001346-MR, 2006-CA-000646-MR, 2003-CA-000466-MR, and 2002-SC-0159-MR).
Relevant to this appeal, since Violett's last trip to this Court in May 2011, he has subsequently filed numerous motions seeking postconviction relief in circuit court. The individual motions were outlined by the circuit court as follows:
[A] motion to correct the pre-sentence investigation report prepared in 1993[;] a motion to dismiss the charges for violating KRS 500.050(4)[;] two motions to vacate the conviction under CR 60.02(e)[;] a motion for findings of fact on those other motions; a motion to reopen RCr 11.42 proceedings based on decision by Supreme Court in Holland v. Commonwealth, 334 S.W.3d 431 (Ky. 2011); two motions for default judgment against the Commonwealth; a "Motion to Vacatur [sic] Void Judgment;" and several attendant motions for evidentiary hearings and to transport the defendant.By order entered December 15, 2011, the circuit court denied the motions, thus precipitating this appeal.
Violett contends that the circuit court erred by denying his various motions for relief. In particular, Violett argues that: his conviction should be reversed due to jury tampering; the circuit court's November 1, 1993, amended order was void as the court lost jurisdiction; his sentence of imprisonment was improperly calculated; the evidence did not support his conviction; and his convictions violated the constitutional prohibition of double jeopardy.
As noted previously, Violett has filed numerous unsuccessful postconviction motions. And, Violett's conviction and sentence of imprisonment was affirmed on direct appeal to the Supreme Court. See Violett, 907 S.W.2d 773. All of Violett's allegations herein were either previously addressed in or should have been raised in the prior proceedings. The law is clear that we will not consider successive postconviction motions upon the same grounds of relief or upon grounds of relief that should have been raised in prior motions. Butler v. Com., 473 S.W.2d 108 (Ky. 1971); Hampton v. Com., 454 S.W.2d 672 (Ky. 1970). Accordingly, we affirm the circuit court's denial of Violett's numerous postconviction motions.
For the foregoing reasons, the order of the Warren Circuit Court is affirmed.
VANMETER, JUDGE, CONCURS.
ACREE, CHIEF JUDGE, CONCURS AND FILES SEPARATE OPINION.
ACREE, CHIEF JUDGE, CONCURRING: I concur with the result in this case. However, in my opinion, appellant has reached the point at which his repetitive appeals can only be categorized as frivolous. Appellant has filed more than fifty (50) post-conviction appeals.
CR 73.02(4), which is made applicable to the Rules of Criminal Procedure by RCr 13.04, requires us to determine when an appeal is frivolous, and, if so, to award damages and costs as may be appropriate. The rule states: "An appeal is frivolous if the court finds that the appeal is so totally lacking in merit that it appears to have been taken in bad faith." This appeal fits the definition of bad faith and Mr. Violett should be sanctioned by appropriate fine. Freeman v. Commonwealth, 697 S.W.2d 133, 134 (Ky. 1985).
Furthermore, I would apply Cardwell v. Commonwealth wherein this Court stated as follows:
[T]he United States Supreme Court has explained that every paper filed in court exhausts some of the court's limited resources. Thus, to best utilize its resources, where a pro se litigant files repetitious and frivolous claims, a court may bar prospective filings to prevent the deleterious effect of such filings on scarce judicial resources. In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 996, 103 L.Ed.2d 158 (1989); see also Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir.1998).354 S.W.3d 582, 585 (Ky. App. 2011). As this Court did in Cardwell, we should "direct the circuit court to deny all future requests for in forma pauperis status [Violett] files to pursue subsequent collateral attacks on this conviction." Id. BRIEF FOR APPELLANT: Donald Ray Violett, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Christian K.R. Miller
Assistant Attorney General
Frankfort, Kentucky