Opinion
NO. 2017-CA-000850-MR
06-28-2019
JAMES EDWARDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: James Edwards, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, SPECIAL JUDGE
ACTION NO. 02-CR-00481 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. TAYLOR, JUDGE: James Edwards, pro se, brings this appeal from an April 14, 2017, order of the Barren Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion. We affirm.
The facts of this case were summarized by the Kentucky Supreme Court in an Opinion rendered on June 16, 2005, in Edwards' direct appeal as follows:
The Barren County Grand Jury indicted Appellant on November 13, 2002, on four charges. Counts 1 and 2 charged Appellant with the offense of first-degree sodomy in violation of KRS [Kentucky Revised Statutes] 510.070 by performing oral sex on A.M., who was less than twelve years old, and forcing A.M. to perform oral sex on Appellant. Counts 3 and 4 charged Appellant with first-degree sexual abuse for forcing A.M. to engage in sexual touching of Appellant and for Appellant's similar acts on A.M. in violation of KRS 510.110.
A.M.'s relationship with Appellant began at the age of about five or six, when her mother began to date him. Eventually, A.M., her mother, and half-sister moved in with Appellant before A.M.'s mother's marriage to him in the years following. At trial, A.M. testified that she was between the ages of nine and ten when Appellant began to sexually abuse her. She related that the abuse occurred over an extended period of time, usually when her mother was at work and her half-sister was away visiting relatives.
A.M. kept the knowledge of this abuse private for several years because, "[Appellant] told me if I ever told my mom, I would never see her again." Only after A.M., her mother, and her half-sister moved out of Appellant's home in June 2002, did A.M., then age fourteen, relate her account of the alleged sexual abuse to a family friend. This friend later told A.M.'s mother, who reported the alleged abuse to authorities.
At trial, A.M., then sixteen years old, testified in some detail about several occasions when Appellant allegedly sexually abused her as a child. Her testimony
included accounts of the types of abuse, the locations where the abuse happened, and conversations with Appellant regarding the abuse. In response to the allegations, Appellant testified on his own behalf at trial and claimed that A.M.'s testimony was fabricated as part of a scheme to ensure that her mother would get his land and home through their divorce proceedings. The jury chose to believe A.M.'s account and found Appellant guilty of all four charges. . . .Edwards v. Commonwealth, 2005 WL 1412455, at *1 (Ky. June 16, 2005). The Supreme Court affirmed Edwards' convictions and fifty-year sentence, repeatedly rejecting his claims that he was entitled to a directed verdict due to allegedly conflicting evidence.
In December 2005, Edwards filed a motion for post-conviction relief under Kentucky Rules of Criminal Procedure (RCr) 11.42, raising several allegations of ineffective assistance of counsel. The trial court appointed counsel for Edwards and held a hearing, after which it denied the motion. This Court affirmed in Edwards v. Commonwealth, 2014 WL 5489355 (Ky. App. Oct. 31, 2014). Edwards then sought federal habeas corpus relief, but the United States District Court for the Western District of Kentucky denied his petition in November 2016. Edwards v. Smith, 2016 WL 6662712 (W.D. Ky. Nov. 10, 2016).
In March 2017, Edwards filed this CR 60.02 motion, which the circuit court denied without a hearing in April 2017. This appeal followed.
As we construe Edwards' pro se brief, we have identified two overarching arguments on appeal: 1) that there was insufficient evidence to support his convictions because the witnesses' testimony was inconsistent, and 2) that Edwards' trial counsel was ineffective for, inter alia, failing to object to the testimony of social workers that the victim's allegations had been substantiated and for failing to object to the testimony of an acquaintance that Edwards had said he had had sex with a fourteen-year old girl. For the reasons stated, none of Edwards' arguments merit 60.02 relief.
CR 60.02 reads:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion 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. A motion under this rule does not affect the finality of a judgment or suspend its operation.
It is well-established that the remedy provided under CR 60.02 is extraordinary and only available to raise issues that could not have been raised in other proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). CR 60.02 is unavailable "to raise claims which could and should have been raised in prior proceedings, but, rather, 'is for relief that is not available by direct appeal and not available under RCr 11.42.'" Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983)).
In this case, Edwards' arguments were raised on either direct appeal or in his RCr 11.42 motion. For example, the Supreme Court on direct appeal repeatedly addressed - and found no merit in - Edwards' claims that he was entitled to a directed verdict due to insufficient/conflicting evidence. See 2005 WL 1412455, at *2-3 ("The jury could have decided that A.M.'s testimony regarding the abuse was credible, even though physical evidence to support her testimony was lacking. . . . The jury simply believed the testimony of A.M. over the denial of Appellant and the conclusions of the attending physician. . . . Again, after weighing the evidence, the jury simply chose to believe A.M.'s testimony over Appellant's denial even in the face of some minor factual uncertainties."). Similarly, another panel of this Court found no merit in the ineffective assistance of counsel claims Edwards raised in his RCr 11.42 motion. See 2014 WL 5489355, at *3 ("Despite trial counsel's attempts to discount A.M.'s testimony by pointing to inconsistencies in her reports to social workers, counselors, and doctors, the jury simply chose to believe A.M. Pointing to inconsistencies in the witnesses' testimony was not only sound trial strategy, but also the only reasonable defense against A.M.'s first-hand accounts of Edwards' sexual abuse. And, even if trial counsel were deficient for failing to object to the other witnesses' testimony at trial, there does not exist a reasonable probability that the outcome of the trial would have been different absent admission of the above evidence. . . . Again, we emphasize that A.M. testified at trial concerning the sexual abuse she suffered by Edwards, and A.M.'s testimony was compelling. We simply do not believe that the erroneous admission of the above evidence constituted reversible or prejudicial error.") (citation and paragraph break omitted).
Even if we were to leniently conclude that any portion of Edwards' Kentucky Rules of Civil Procedure 60.02 motion was not raised previously, he would not be entitled to relief. Edwards cites no new evidence, so he could have and should have raised the claims on direct appeal or in his Kentucky Rules of Criminal Procedure 11.42 motion. --------
CR 60.02 is not a vehicle to obtain relief for repetitive arguments previously made or that otherwise should have been raised on direct appeal or in an RCr 11.42 motion. Simply stated, Edwards' contentions of error in this appeal are not cognizable in a CR 60.02 motion. See McQueen, 948 S.W.2d at 416; Sanders, 339 S.W.3d at 437. Accordingly, the circuit court properly denied Edwards' CR 60.02 motion.
For the foregoing reasons, the Order of the Barren Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: James Edwards, Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky