Opinion
NO. 2013-CA-001789-MR
02-13-2015
JESSE ALBERT RIDER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jesse Rider Pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 01-CR-00017
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KRAMER, JUDGES. KRAMER, JUDGE: Jesse Albert Rider appeals the Boone Circuit Court's order denying his CR 60.02 motion for relief from judgment. Following a thorough review of the record, we affirm because Rider's CR 60.02 motion was not filed within a "reasonable time," as required by the rule.
Kentucky Rule of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rider was indicted on ten counts of sodomy in the first degree and six counts of sexual abuse in the first degree. The circuit court referred Rider to the Kentucky Correctional Psychiatric Center for examination by a staff psychiatrist or psychologist and for that person to give an expert opinion regarding, inter alia, his competency to stand trial. A hearing was held, and the court entered the following written notation on the record: "both experts agree [Rider] is competent to stand trial - defendant found competent to stand trial."
Rider and the Commonwealth entered into a plea agreement. They agreed that in exchange for Rider's guilty plea, the Commonwealth would recommend ten years of imprisonment for five of the counts of first-degree sodomy (counts 1, 2, 3, 5 and 6), to be served concurrently with each other; ten years of imprisonment for the other five counts of first-degree sodomy (counts 7, 9, 10, 13 and 14), to be served concurrently with each other, but consecutively to counts 1, 2, 3, 5, and 6; and five years of imprisonment for the six counts of first-degree sexual abuse, to be served concurrently with each other but consecutively to the sodomy counts, for a total sentence served of twenty-five years of imprisonment. Rider moved to enter a guilty plea in accord with the plea agreement.
The court's judgment provides that, during the plea hearing, Rider entered a guilty plea to ten counts of second-degree sodomy (as opposed to first-degree sodomy as had been specified in the plea agreement), and six counts of first-degree sexual abuse. An agreed order was entered amending the ten first-degree sodomy charges to second-degree sodomy. Rider was sentenced to ten years of imprisonment for five of the counts of second-degree sodomy (counts 1, 2, 3, 5 and 6), to be served concurrently with each other; ten years of imprisonment for the other five counts of second-degree sodomy (counts 7, 9, 10, 13 and 14), to be served concurrently with each other, but consecutively to counts 1, 2, 3, 5, and 6; and five years of imprisonment for the six counts of first-degree sexual abuse, to be served concurrently with each other but consecutively to the sodomy counts, for a total effective sentence of twenty-five years of imprisonment. He was sentenced in 2002.
In 2013, Rider filed his CR 60.02(f) motion for relief from the court's judgment. In his motion, he requested a "retrospective competency evaluation and hearing." He claimed that he had sustained a severe head injury as a child and that he had never been examined or treated for the injury, but that after the injury, he was placed in special education classes. Rider alleged that he was never given a competency evaluation, but that multiple corrections institutions had "brought to light documented evidence of [Rider's] limited intellectual capacity: borderline intellectual functioning, mood disorder, anxiety disorder, abnormal and confused thought content, poor historian, abnormal and poor attention span and concentration; possible psychiatric issues." He argued that his "inability to fixate on a topic of conversation, his inability to negotiate and solve problems in a logical manner, and his inability to comprehend the intricacies of the law are all valid reasons why he should be retrospectively evaluated for competency."
The circuit court denied Rider's CR 60.02 motion. The court explained that a competency hearing had been held in 2001, and Rider's "case file indicate[d] that the experts agreed that [Rider] was competent to stand trial and, as a result, the Defendant was found competent to stand trial." Thus, the court found that Rider had not shown that he lacked the capacity "to understand and appreciate the nature and consequences of the proceedings against him nor that he was unable to participate rationally in all aspects of his defense and to assist his counsel." Consequently, the circuit court concluded that Rider had not shown that he was incompetent to stand trial. The court further held that Rider had failed to file his CR 60.02 motion within a reasonable time, as required by the rule. Therefore, his motion was denied.
Rider now appeals, contending that he was never evaluated by a doctor to determine his competency to stand trial, and that we should grant him a retrospective competency evaluation and hearing due to the head injury he received as a child.
II. ANALYSIS
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). Claims brought under CR 60.02(a), (b), or (c) must be brought within one year after the judgment is entered, and claims brought under the remaining sections of CR 60.02 must be brought within a "reasonable time." See CR 60.02.
Rider filed his CR 60.02 motion eleven years after the judgment was entered. Because he could have raised his claims at a much earlier time, his motion was not filed within a "reasonable time." See Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983); see also Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009) (holding that a delay of seven years between pleading guilty and filing a CR 60.02 motion alleging issues regarding the defendant's competency was too long to be considered a "reasonable time" for purposes of CR 60.02). Therefore, the circuit court did not abuse its discretion in denying Rider's CR 60.02 motion.
Moreover, the circuit court in this case noted on the written record in October 2001 that a competency hearing was held and that both experts agreed that Rider was competent to stand trial. Therefore, even if we were to assume, for argument's sake, that Rider's CR 60.02 motion was timely filed, it nevertheless lacked merit.
Accordingly, the order of the Boone Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Jesse Rider
Pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky