Opinion
NO. 2017-CA-000626-MR
05-25-2018
TODD A. SAPP APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Todd A. Sapp, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 99-CR-00116 OPINION
AFFIRMING
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BEFORE: CLAYTON, SMALLWOOD, AND TAYLOR, JUDGES. SMALLWOOD, JUDGE: Todd A. Sapp appeals from an order of the Greenup Circuit Court denying his RCr 11.42 motion and CR 60.02 motion to vacate judgment of conviction and sentence without an evidentiary hearing. After careful consideration, we affirm.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure. --------
On November 12, 1999, Sapp was indicted on charges of murder, first-degree robbery, first-degree burglary, and theft by unlawful taking over $300. On February 19, 2001, Sapp moved to enter a guilty plea based on the Commonwealth's offer of a life sentence without parole for twenty-five years, with twenty years for first-degree robbery and ten years for first-degree burglary to run concurrently with the life sentence for murder. Final judgment was entered on March 1, 2001.
On April 22, 2003, Sapp filed an RCr 11.42 motion to vacate or set aside the judgment based on a claim of ineffective assistance of counsel. Sapp alleged his attorney provided erroneous information regarding good-time credit prior to entering his guilty plea. The trial court denied Sapp's motion based on an affidavit from Sapp's attorney and a letter from the Department of Probation and Parole that refuted Sapp's allegations. Sapp did not appeal the circuit court's decision.
On February 10, 2017, Sapp filed what he styled as "Motion to Vacate, Set Aside, or Correct Judgment of Conviction and Sentence Pursuant to CR 60.02(e), (f) and/or RCr 11.42(10)(a)." In that motion, he claims he had two offers from the Commonwealth. His attorney recommended Sapp reject the first offer for a sentence of fifty years, and later, he recommended Sapp accept the second offer for a life sentence without parole for twenty-five years. Sapp argues that his attorney was ineffective in recommending Sapp reject the first offer, which included a less harsh punishment than the second offer. The court summarily denied his RCr 11.42 and CR 60.02 motions. This appeal follows.
Regarding the circuit court's denial of Sapp's RCr 11.42 motion, we agree that it is time-barred. Pursuant to RCr 11.42(10), a motion under this rule must be filed within three years after the judgment is final. The judgment became final on March 1, 2001. It is long past the three-year deadline for RCr 11.42 motions.
Sapp claims the circuit court erred when it denied his CR 60.02 motion without granting an evidentiary hearing. The circuit court denied the motion because it was time-barred, the claims could have been made in his earlier RCr 11.42 motion, and there was no basis for relief under CR 60.02.
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation omitted). A trial court's decision will only be disturbed if it was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted).
For requests for relief under CR 60.02(e) and (f), the motion must be filed within a reasonable time after final judgment. This time restriction is left to the discretion of the trial court. Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014). We find that the circuit court did not abuse its discretion in determining that sixteen years is not within a reasonable time. See Foley, 425 S.W.3d at 884 (finding the trial court did not abuse its discretion in concluding two decades was not within a reasonable amount of time); Oller v. Commonwealth, 292 S.W.3d 332, 334 (Ky. App. 2009) (finding the trial court did not abuse its discretion in concluding sixteen years was not within a reasonable amount of time); and Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009) (finding the trial court did not abuse its discretion in concluding a seven-year delay was unreasonable).
The various rules of procedure provide a broad schema for defendants to challenge decisions related to their convictions and sentences, but there are limits to how and when defendants may use the rules on appeal. "CR 60.02 is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). These issues must be "of an extraordinary nature justifying relief." Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Sapp's claims here could have been presented through direct appeal or RCr 11.42 and are not of an extraordinary nature. We will not allow for the relitigation of issues that could have been or were litigated previously.
Additionally, Sapp argues throughout his brief that he could not have made these specific claims of ineffective assistance of counsel earlier because he just recently discovered Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), which he believes retroactively created new claims for him to appeal. We are not persuaded by his line of reasoning. Kentucky has recognized the Sixth Amendment right to effective assistance of counsel during plea proceedings for many years. See Commonwealth v. Campbell, 415 S.W.2d 614, 616 (Ky. 1967) (finding the defendant's attorney was not ineffective for advising the defendant to accept a guilty plea offer); Quarles v. Commonwealth, 456 S.W.2d 693, 694 (Ky. 1970) (determining there was no evidence to support the defendant's claim that counsel was ineffective by coercing him into a guilty plea); and Sparks v. Commonwealth, 721 S.W.2d 726, 728 (Ky. App. 1986) (finding defendant's counsel's advice to plead guilty was not constitutionally defective). In fact, Osborne v. Commonwealth, 992 S.W.2d 860 (Ky. App. 1998), is cited in Sapp's brief. That decision, rendered by this Court three years prior to the entry of final judgment in Sapp's case, held that failure to accept a plea offer can constitute ineffective assistance of counsel. Lafler did not establish a new constitutional right. There is no credible reason why Sapp could not have made this claim at any time prior to sixteen years after final judgment. Thus, the trial court did not abuse its discretion in denying his CR 60.02 motion without a hearing.
Accordingly, we affirm the order of the Greenup Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Todd A. Sapp, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky