Opinion
NO. 2011-CA-001582-MR
02-08-2013
TYRONE MARSHALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Tyrone Marshall, Pro Se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 99-CR-00042
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Tyrone Marshall brings this pro se appeal from a July 29, 2011, Order of the Oldham Circuit Court, denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion. We affirm.
In 1999, appellant was found guilty of murder, attempted murder, and first-degree burglary. By final judgment, the circuit court sentenced him to life without the possibility of parole for twenty-five years.
Appellant pursued a direct appeal of his conviction. In Marshall v. Commonwealth, 60 S.W.3d 513 (Ky. 2001), the Supreme Court affirmed his conviction and sentence of imprisonment. Subsequently, appellant filed a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate the conviction. The circuit court denied the motion, and this Court affirmed the denial in Appeal No. 2003-CA-000249-MR. Appellant then filed the instant CR 60.02 motion. By order entered July 29, 2011, the circuit court denied the motion. This appeal follows.
Appellant contends that the circuit court erred by denying his CR 60.02 motion. Specifically, appellant argues that "newly discovered evidence" entitles him to relief. Appellant's Brief at 6. In support thereof, he points to affidavits of his co-defendants detailing appellant's limited participation in the crimes. Appellant maintains that this new evidence demonstrates that his sentence of life imprisonment without the possibility of parole "was disproportionate to his culpability" so as to constitute cruel and unusual punishment. Appellant's Brief at 9. Appellant alleges that his co-defendants affidavits directly contradict the testimony of two trial witnesses. And, appellant further contends that a "bloody gun" found at the victim's residence belonged to the victim and was "clear proof that the murder weapon was not brought [in]to the . . . residence." Appellant's Brief at 8.
By Order entered January 9, 2012, this Court granted the Department of Public Advocacy's motion to withdraw as counsel. The basis of the motion was that the appeal was not a proceeding a reasonable person with adequate means would pursue at his own expense.
To begin, CR 60.02 is extraordinary relief to which a movant must demonstrate entitlement. Gross v. Com., 648 S.W.2d 853 (Ky. 1983). CR 60.02 constitutes a separate avenue for relief and may be utilized only to raise issues that could not be raised by other proceeding. McQueen v. Com., 948 S.W.2d 415 (Ky. 1997).
The affidavits of appellant's co-defendants do not constitute newly discovered evidence pursuant to CR 60.02(b). To constitute newly discovered evidence, such evidence must not have been available before or during trial. So, a known witness who comes forward with alleged exculpatory evidence after trial does not constitute newly discovered evidence. Carwile v. Com., 694 S.W.2d 469 (Ky. App. 1985). And, the allegations of error raised in appellant's CR 60.02 motion should have been raised by direct appeal and are not within the purview of CR 60.02. Accordingly, we conclude that the circuit court properly denied appellant's CR 60.02 motion.
For the foregoing reasons, the Order of the Oldham Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Tyrone Marshall, Pro Se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky