Opinion
NO. 2014-CA-000276-MR
02-13-2015
GERALD YOUNG APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gerald Young, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES ISHMAEL, JUDGE
ACTION NO. 97-CR-01069-002
OPINION
AFFIRMING
BEFORE: DIXON, JONES, THOMPSON, JUDGES. JONES, JUDGE: This appeal concerns whether the Fayette Circuit Court properly denied Appellant Gerald Young's Kentucky Rule of Civil Procedure ("CR") 60.02(e) motion. For the reasons more fully set forth below, we AFFIRM.
I. BACKGROUND
This case is not a stranger to the appellate courts of this state. As recounted below, Young, sometimes acting with counsel, and sometimes acting pro se, has extensively litigated his conviction and sentence in both our Court and before the Kentucky Supreme Court.
On June 13, 1997, Osama Shalash was fatally shot outside of a Perkins' Restaurant in Lexington, Kentucky. Young was arrested, indicted, and tried for Shalash's murder. At trial, the Commonwealth relied, in part, on the testimony of a jailhouse informant, Danny Craddock, to implicate Young in the murder. Craddock testified that he was incarcerated with Young at the Scott County Detention Center. Craddock further testified that during the time they were incarcerated together Young confided in him that he had paid Thomas $25,000.00 to kill Shalash because Shalash had recently robbed Leslie Mulligan, one of Young's drug associates.
To rebut Craddock's testimony, Young called Captain Agnus Reeves from the Scott County Detention Center. Captain Reeves testified that Young and Craddock were not housed in the same area of the Scott County Detention. He further testified because Craddock was housed "in a lock down cell" it would have been unlikely for Young and Craddock to mingle with one another very much. However, he admitted that it was possible that Young and Craddack could have conversed with each other at some point during their time together at the Scott County Detention Center.
Following a presentation of the evidence, the jury convicted Young of murder by complicity. He was subsequently sentenced to death. Young appealed his sentence to the Kentucky Supreme Court. On appeal, the Kentucky Supreme Court affirmed Young's conviction, but reversed imposition of the death penalty because there was no aggravating circumstance applicable to his participation in the murder that would have permitted imposition of the death penalty under Kentucky Revised Statute ("KRS") 532.025(2). Young v. Commonwealth, 50 S.W.3d 148, 163 (Ky. 2001). The Kentucky Supreme Court remanded Young's case to the Fayette Circuit Court solely for a new penalty phase with directions that during retrial "the jury shall be instructed that the maximum penalty that can be imposed upon him is imprisonment for life." Id. at 172.
On remand, the trial court conducted another penalty phase. In 2002, a second jury sentenced Young to life in prison. Once again, Young appealed his sentence to the Kentucky Supreme Court. On appeal, Young asserted that the trial court erred in failing to allow him to introduce parole statics and that the prosecutor engaged in prosecutorial misconduct during closing arguments. The Kentucky Supreme Court rejected both arguments and affirmed Young's life sentence. Young v. Commonwealth, 129 S.W.3d 343 (Ky. 2004).
Young then filed a Kentucky Rule of Criminal Procedure ("RCr") 11.42 motion seeking to have his conviction and sentence set aside based on the ineffectiveness of his trial counsel. The trial court denied Young's motion and he appealed to our Court. On appeal, Young argued that his trial counsel was ineffective for failing to object to an improper allocation of peremptory strikes; for providing representation despite a conflict of interest; for failing to investigate other suspects; and for failing to object to a prosecutor's question at trial. We reversed the trial court's decision to deny Young's motion on the issue of peremptory challenges. The Kentucky Supreme Court granted discretionary review and reinstated the trial court's denial of the motion. It held that we wrongfully reversed the trial court because Young had not made "a showing of identifiable prejudice," a necessary prerequisite for obtaining relief under RCr 11.42. Commonwealth v. Young, 212 S.W.3d 117, 122 (Ky. 2006).
On April 19, 2010, Young filed a motion to set aside his judgment of conviction pursuant to CR 60.02(f). He alleged that he was denied due process when the prosecuting attorney knowingly presented false testimony (Craddock's testimony) and when the trial court failed to instruct on the lesser-included offense of solicitation to murder. The trial court denied Young's motion finding that the first issue was untimely and that all issues should have been raised either on direct appeal or in Young's prior RCr 11.42 motion.
Young again appealed. We affirmed the trial court. We concluded that Young failed to meet the stringent standard necessary to set aside a conviction based on perjured testimony and that the facts regarding Craddock's testimony were all known Young during at the time of his conviction and during his prior appeals. We also concluded "that Young should have raised any objections to the instructions in his direct appeal, or as part of his ineffective assistance claim in his RCr 11.42 motion." Young v. Commonwealth, No. 2011-CA-001577-MR, 2013 WL 1844727 (Ky. App. May 3, 2013).
Young then filed a CR 60.02(e) motion asking the trial court to set aside the denial of his RCr 11.42 motion. Like his prior CR 60.02 motion, this motion was based on the admission of Craddock's allegedly perjured testimony and the failure to instruct on the lesser-included offense of solicitation to murder. The trial court denied Young's motion by order entered February 3, 2014.
This appeal followed.
II. STANDARD OF REVIEW
"CR 60.02 is an exceptional remedy necessitating cautious application." Edwards v. Headcount Management, 421 S.W.3d 403, 404 (Ky. App. 2014). Relief under CR 60.02 is appropriate "only under the most unusual and compelling circumstances." Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011). For that reason, the decision "to grant or to deny a motion filed pursuant to the provisions of CR 60.02 lies within the sound discretion of the trial court." Id. We will not disturb the circuit court's decision absent an abuse of that discretion. Kurtsinger v. Bd. of Trustees of Ky. Ret. Sys., 90 S.W.3d 454, 456 (Ky. 2002). Only a decision that is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles[ ]" manifests an abuse of discretion. Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010).
III. ANALYSIS
CR 60.02 creates an avenue of relief under a variety of grounds of which a party became aware after entry of the judgment he seeks to set aside. Among these grounds, and most pertinent to the present case, CR 60.02(e) permits relief from a judgment when "it is no longer equitable that the judgment should have prospective application." Motions under CR 60.02(e) must be brought within a reasonable time. CR 60.02. Moreover, as stated repeatedly, CR 60.02 exists not as a second bite at the apple, but to provide relief that is unavailable by either direct appeal or RCr 11.42 motion. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). "CR 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could 'reasonably have been presented' by direct appeal or by RCr 11.42." Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009).
Young had a trial; he had a direct appeal of his conviction and sentence; he had a re-trial on his sentence; he had another direct appeal; he had a RCr 11.42 motion; he had an appeal of his RCr 11.42 motion all the way to the Kentucky Supreme Court; he a had a CR 60.02 motion attacking his conviction and sentence; and he had an appeal of his CR 60.02 motion to our Court. Throughout his appeals, Young either raised or could have raised the same issues set forth in the current motion.
Young has repeatedly sought to bring these same issues before the trial court, our Court, and the Kentucky Supreme Court. They have been rejected as either untimely or without merit. Young's second CR 60.02 motion did not raise any new evidence. It was simply a re-argument of issues already decided and rejected by the trial court and our appellate courts. "The courts have much more to do than occupy themselves with successive 'reruns' [of post-conviction motions] stating grounds that have or should have been presented earlier." Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970).
Young did not demonstrate any extraordinary circumstances triggering CR 60.02 relief. Therefore, we conclude that the trial court properly denied his CR 60.02 motion.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gerald Young, pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky