Opinion
NO. 2018-CA-001503-MR
01-10-2020
GARY R. WOOLBRIGHT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Gary Woolbright, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BARREN CIRCUIT COURT
HONORABLE JOHN T. ALEXANDER, JUDGE
ACTION NO. 01-CR-00414 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES. LAMBERT, JUDGE: Gary R. Woolbright appeals from the Barren Circuit Court's order denying his motion to set aside, correct, or amend judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02, entered August 2, 2018. We affirm.
A full recitation of the facts of this case may be found in the Supreme Court of Kentucky's memorandum opinion on direct appeal. Woolbright v. Commonwealth, No. 2003-SC-000368-MR, 2005 WL 2045485 (Ky. Aug. 25, 2005). Briefly stated, Woolbright was tried and found guilty in Barren Circuit Court for wanton murder, receiving stolen property, first-degree trafficking in a controlled substance (methamphetamine), and first-degree possession of a controlled substance (methamphetamine). Id. at *1. The trial court sentenced Woolbright to a total of fifty-five years' imprisonment for these offenses, and our Supreme Court affirmed his convictions on direct appeal. Id.
Woolbright subsequently moved the trial court under Kentucky Rules of Criminal Procedure (RCr) 11.42 to set aside his convictions due to ineffective assistance of counsel. The trial court denied relief, and we affirmed the trial court's denial on appeal. Woolbright v. Commonwealth, No. 2009-CA-001689-MR, 2011 WL 1327362 (Ky. App. Apr. 8, 2011). Woolbright then pursued habeas relief, which was ultimately denied in federal district court. Woolbright v. Crews, No. 1:12-CV-00080-GNS, 2018 WL 357908 (W.D. Ky. Jan. 10, 2018), cert. of appealability denied, No. 18-5131, 2018 WL 7247245 (6th Cir. Jul. 9, 2018).
Approximately fifteen years after his conviction, Woolbright moved the trial court to set aside his guilty plea pursuant to CR 60.02(e) and (f). Woolbright makes several arguments asserting he was improperly convicted of wanton murder at trial when the grand jury's indictment charged him only with murder. Woolbright also argues he suffered ineffective assistance of counsel. On August 2, 2018, the trial court entered an order denying Woolbright's motion. This appeal followed.
This appeal stems from the trial court's denial of a CR 60.02 motion. "We review the denial of a CR 60.02 motion for an abuse of discretion." Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). "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). "The burden of proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (citations and internal quotation marks omitted). "[W]e will affirm the lower court's decision unless there is a showing of some 'flagrant miscarriage of justice.'" Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
In its order, the trial court found Woolbright's CR 60.02 motion was untimely and procedurally improper. We agree with the trial court's reasoning on both points. First, in considering timeliness, CR 60.02 provides in pertinent part that motions under the Rule "shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order or proceeding was entered or taken." Woolbright specified CR 60.02(e) and (f) as grounds for relief, meaning he was required to bring his motion within "a reasonable time." "What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross, 648 S.W.2d at 858. The Supreme Court of Kentucky has affirmed a trial court's denial of a CR 60.02 motion as untimely when filed five years post-judgment. Id. Similarly, this Court has reasoned that denial of a CR 60.02 motion filed four years post-judgment would be within a trial court's discretion. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007). Here, Woolbright filed his CR 60.02 motion fifteen years after conviction and thirteen years after his direct appeal. The trial court did not abuse its discretion in finding Woolbright's motion untimely.
Next, the trial court found the CR 60.02 motion to be procedurally barred, because the claims asserted should have been brought on direct appeal or in a motion pursuant to RCr 11.42. We agree. "CR 60.02 is not intended to provide relief for grounds that could be attacked through direct appeals or collateral motions such as grounds under RCr 11.42." Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017). Woolbright's claims regarding his indictment and conviction could have and should have been made in his direct appeal, and his assertions regarding ineffective assistance of counsel should have been presented under RCr 11.42. A motion under CR 60.02 is an inappropriate vehicle for these arguments:
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 . . . is for relief that is not available by direct appeal and not available under RCr 11.42.Gross, 648 S.W.2d at 856. The trial court did not err in finding Woolbright's CR 60.02 motion to be procedurally improper.
For the foregoing reasons, we affirm the Barren Circuit Court's order denying relief pursuant to CR 60.02.
ALL CONCUR. BRIEFS FOR APPELLANT: Gary Woolbright, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky