Opinion
NO. 2016-CA-001862-MR NO. 2017-CA-001433-MR
05-08-2020
DEMETRIUS BRADLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Demetrius Bradley, pro se La Grange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NOS. 06-CR-002698-002, 07-CR-001403-001, AND 08-CR-002358 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NOS. 02-CR-002465 AND 05-CR-002279 OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES. ACREE, JUDGE: Demetrius Bradley appeals the Jefferson Circuit Court's orders denying his CR 60.02 motions challenging his probation revocation. We affirm.
Kentucky Rules of Civil Procedure.
FACTS AND PROCEDURE
Bradley is currently serving an aggregate thirty-seven-year sentence on five separate convictions for crimes committed over the span of several years. The history of his life of crime is reflected in convictions upon his guilty pleas for facilitation to commit criminal syndication, two counts of first-degree trafficking in a controlled substance, first-degree manslaughter, first-degree robbery, second-degree burglary, first-degree assault, tampering with physical evidence, and facilitation to criminal attempted murder.
On the charges related to these appeals, the trial court found his plea was entered knowingly and voluntarily and postponed entry of judgment pending a presentence investigation. On October 29, 2009, Bradley received a thirty-year consecutive sentence.
Bradley subsequently filed a pro se motion seeking an order vacating his judgment of conviction and sentence pursuant to RCr 11.42 on grounds of ineffective assistance of counsel. Bradley's motion was denied by the trial court and that denial was affirmed by this Court. Bradley v. Commonwealth, No. 2012-CA-001065-MR, 2014 WL 1778379 (Ky. App. May 2, 2014). Bradley also pursued a 28 USC § 2254 habeas petition that was denied and dismissed with prejudice, with a denial of his motion for a certificate of appealability, by the United States District Court for the Western District of Kentucky on December 12, 2014. Bradley v. Smith, No. 3:14-CV-454-JGH, 2014 WL 10463472 (W.D. Ky. Dec. 12, 2014), report and recommendation adopted, No. 3:14-CV-454-DJH, 2015 WL 5722816 (W.D. Ky. Sept. 29, 2015); see also Bradley v. Smith, No. 3:14-CV-P454-DJH, 2016 WL 7330592 (W.D. Ky. Dec. 16, 2016) (seeking FRCP 60(b) relief from the district court's rulings in the previously cited case); Bradley v. Smith, No. 17-5407, 2017 WL 8793324 (6th Cir. Dec. 11, 2017) (affirming the decision in the previously cited case).
Kentucky Rules of Criminal Procedure.
United States Code.
Federal Rules of Civil Procedure.
In early 2016, Bradley filed CR 60.02 motions in two different divisions of Jefferson Circuit Court related to probation revocation, sentencing considerations, and award of jail time credit. Both divisions of the trial court denied Bradley's respective motions. Bradley thereafter brought timely appeals from each order.
STANDARD OF REVIEW
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). "[T]he 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).
ANALYSIS
Bradley makes two arguments on appeal: first, that the trial court's denials of his CR 60.02 motions were unreasonable, unconscionable, and arbitrary; and second, that the trial court abused its discretion in failing to hold a hearing, which violated KRS 533.050(2).
Kentucky Revised Statutes.
As he did before the trial court, Bradley continues to argue there was insufficient evidence to support his convictions. The Commonwealth argues that the CR 60.02 motions were not made in a timely fashion and that the issues raised are not proper because they could have been raised in a direct appeal. We agree with the Commonwealth.
"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) (citation omitted). 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 Bradley could, and should, have been addressed in his direct appeal or in the RCr 11.42 motion he filed. Under the guise of CR 60.02, Bradley seeks to challenge a probation revocation that occurred seven years prior to the filing of his motions. That is not the purpose of a CR 60.02 motion. McQueen, 948 S.W.2d at 416. 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 v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). We commend the trial court's analysis of KRS 533.040 but find it was unnecessary given that Bradley's CR 60.02 motions did not meet the "reasonable time" criterion for filing.
CONCLUSION
For the foregoing reasons, we affirm the trial court's denials of Bradley's motions for CR 60.02 relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Demetrius Bradley, pro se
La Grange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky