ERIC STRATTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 27, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000179-MR
ERIC STRATTON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NOS. 83-CR-000883 AND 83-CR-000966
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Eric Stratton has appealed from an opinion and
order entered by the Jefferson Circuit Court on November 30,
2001, that denied his motion for relief pursuant to CR1 60.02
from a criminal sentence.
Having concluded that the circuit
court did not err, we affirm.
1
Kentucky Rules of Civil Procedure.
On June 22, 1983, a Jefferson County grand jury
indicted Stratton for two counts of kidnapping2 and two counts of
robbery in the first degree.3
Approximately one month later, the
grand jury issued another indictment against Stratton, charging
him with seven counts of kidnapping and five counts of robbery
in the first degree.
These charges arose from a series of
kidnappings and robberies committed in Louisville, Kentucky,
from April 1983 to May 1983.
Pursuant to a plea agreement with the Commonwealth,
Stratton entered a guilty plea to each count contained in both
indictments on December 14, 1983.
In return for these guilty
pleas, the Commonwealth agreed to recommend that the sentences
for these offenses run concurrently, giving Stratton a total
prison sentence of ten years.
When entering his guilty pleas,
Stratton informed the trial court that he understood that the
trial court was not bound by the Commonwealth’s sentencing
recommendation.
Prior to being sentenced on January 18, 1984,
Stratton also confirmed his understanding that the trial court
was not bound by the recommendation.
Thereafter, the trial
court refused to accept the Commonwealth’s sentencing
recommendation.
Instead, the trial court entered a sentence of
ten years’ imprisonment for the nine kidnapping counts and a
2
Kentucky Revised Statutes (KRS) 509.040.
3
KRS 515.020.
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sentence of ten years’ imprisonment for the seven robbery
counts, with these sentences ordered to run consecutively for a
total prison sentence of 20 years.
On July 25, 1984, Stratton filed a motion to vacate
this judgment pursuant to RCr4 11.42, arguing that the trial
court should have permitted him to withdraw his guilty plea
after rejecting the Commonwealth’s recommendation.
court denied this motion.
The trial
On December 13, 1985, a panel of this
Court affirmed the trial court’s judgment.5
The Supreme Court of
Kentucky denied Stratton’s belated motion for discretionary
review on January 30, 1986.6
In 1990 Stratton petitioned the United States District
Court for the Western District of Kentucky for a writ of habeas
corpus.
This petition was denied on March 8, 1991.7
The United
States Court of Appeals for the Sixth Circuit affirmed the
district court’s judgment on October 10, 1991.8
On June 11, 2001, Stratton filed his CR 60.02 motion
with the trial court, reviving the arguments originally made in
4
Kentucky Rules of Criminal Procedure.
5
Stratton v. Commonwealth, 1984-CA-002557-MR (not to be published).
6
Stratton v. Commonwealth, 1986-SC-000030-I (not to be published).
7
Stratton v. Smith, C90-0488-L(A) (not to be published).
8
Stratton v. Smith, 946 F.2d 896 (6th Cir. 1991).
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his RCr 11.42 motion.
The trial court denied the CR 60.02
motion on November 30, 2001.
This appeal followed.9
In Gross v. Commonwealth,10 the Supreme Court
established the procedure for appellate review in criminal
cases.
The Supreme Court stated that the structure for
appellate review is not haphazard or overlapping.11
A criminal
defendant must first bring a direct appeal when available, then
utilize RCr 11.42 by raising every error of which he should be
aware.12
CR 60.02 should be utilized only for extraordinary
situations not subject to relief by direct appeal or by way of
RCr 11.42.13
The Supreme Court reaffirmed the procedural
requirements set out in Gross in its opinion in McQueen v.
Commonwealth:14
9
In his reply brief, Stratton argues that we should strike the Commonwealth’s
brief because it was not timely filed pursuant to CR 76.12(2)(a). Stratton
has misconstrued the appellate rules. CR 76.12(2)(b)(ii) clearly states
that, in an appeal of a criminal matter, if the appellant is represented by
someone other than the Public Advocate of the Commonwealth or the Attorney
General of the Commonwealth, the appellee’s brief shall be filed within 60
days after the date on which the appellant’s brief was filed or within 60
days after the date on which the record on appeal was received by the clerk
of this Court, whichever is later. This option applies herein because
Stratton filed this appeal pro se. Since the record was received by the
clerk of this Court on July 17, 2002, the Commonwealth had until September
19, 2002, to file its brief. The Commonwealth filed its brief on September
13, 2002. Thus, the Commonwealth’s brief was timely filed.
10
Ky., 648 S.W.2d 853 (1983).
11
Id. at 856.
12
Id.
13
Id.
14
Ky., 948 S.W.2d 415, 416 (1997).
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A defendant who is in custody under sentence
or on probation, parole or conditional
discharge, is required to avail himself of
RCr 11.42 as to any ground of which he is
aware, or should be aware, during the period
when the remedy is available to him. Civil
Rule 60.02 is not intended merely as an
additional opportunity to relitigate the
same issues which could “reasonably have
been presented” by direct appeal or RCr
11.42 proceedings. RCr 11.42(3); Gross v.
Commonwealth, supra, at 855, 856. The
obvious purpose of this principle is to
prevent the relitigation of issues which
either were or could have been litigated in
a similar proceeding.
Gross and McQueen clearly establish that “[a]n issue
raised and rejected on direct appeal may not be litigated [in an
RCr 11.42 proceeding] by claiming that it amounts to ineffective
assistance of counsel.”15
This same logic applies to CR 60.02
motions since, by the very terms of the rule, it provides
“extraordinary relief” just as RCr 11.42 does.
In order to be
eligible for CR 60.02 relief, Stratton must demonstrate why he
is entitled to such extraordinary relief.16
In his brief, Stratton once again argues that his
sentences are invalid because the trial court should have
permitted him to withdraw his guilty pleas after rejecting the
sentencing recommendations of the Commonwealth.
This argument
was raised, and ultimately rejected, by a panel of this Court in
15
Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998), cert. denied, 526
U.S. 1025 (1999).
16
Barnett v. Commonwealth, Ky., 979 S.W.2d 98, 101 (1998).
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1985.
Consequently, Stratton is barred from raising these
issues again by a CR 60.02 motion.
Additionally, Stratton failed to exercise due
diligence in pursuing his claim.
Under CR 60.02, a motion must
be filed within a reasonable time if the motion is based upon an
extraordinary reason justifying the relief sought.
Here,
Stratton waited until June 11, 2002, to file his CR 60.02 motion
with the trial court.
A delay of over 17 years under the
circumstances of this case is not reasonable and does not comply
with CR 60.02 requirements.
Therefore, the trial court did not
err in denying Stratton’s CR 60.02 motion.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric Stratton, Pro Se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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