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RENDERED: JUNE 7, 2013; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2012-CA-001099-MR JOHN W. MARTIN APPELLANT

v.

APPEAL FROM MADISON CIRCUIT COURT HONORABLE JEAN CHENAULT LOGUE, JUDGE ACTION NO. 97-CR-00060

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: John W. Martin appeals the Madison Circuit Court's order denying his CR1 60.02 motion for relief from the judgment against him. Following a careful review of the record, we affirm because Martin's claims were not brought within a reasonable time.

1

Kentucky Rule of Civil Procedure.

In 1997, Martin entered guilty pleas to the charges of: (a) criminal attempt to commit murder; (b) first-degree burglary; and (c) first-degree robbery. He was sentenced to serve fifteen years of imprisonment for his criminal attempt to commit murder conviction; ten years of imprisonment for his first-degree burglary conviction; and fifteen years of imprisonment for his first-degree robbery conviction. Martin's sentences were ordered to run consecutively for a total maximum term of forty years of imprisonment. More than fourteen years later, Martin filed a CR 60.02 motion for relief from the court's judgment. In his motion, Martin alleged that his guilty plea was involuntarily, unknowingly, and unintelligently entered because he had not had a complete understanding of the criminal attempt to commit murder charge at the time he entered his guilty plea. Specifically, Martin asserted that he had recently learned that the facts of his case were insufficient to satisfy the elements of the crime of "criminal attempt to commit murder." Martin claimed that his counsel had rendered ineffective assistance in failing to advise Martin that "an intent to kill somebody is an essential element of the offense of criminal attempt to commit murder." The circuit court denied Martin's CR 60.02 motion. The court reasoned that Martin had not filed his motion within a "reasonable time," as required by CR 60.02. Martin now appeals, contending as follows: (a) the circuit court abused its discretion by failing to entertain Martin's claims due to extraordinary -2-

circumstances; and (b) the circuit court abused its discretion by using the "reasonable time" restriction to deny Martin's motion. We review a circuit court's 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). "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[2] 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 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." Id. Martin asserts that the circuit court abused its discretion by failing to entertain his claims due to extraordinary circumstances and by using the "reasonable time" restriction to deny Martin's motion. The "extraordinary circumstances" that he claims justified his delay in filing his CR 60.02 motion are as follows, according to Martin's appellate brief: After serving nearly 15 years of the 40[-]year sentence, Martin was in a conversation with his cellmate, who was a Legal Aide and who advised him that his judgment of conviction and sentence of imprisonment is a defective sentence and violates [the] Due Process [Clause] because, he is not guilty of the charge of Criminal Attempt to [C]ommit Murder, KRS 506.010, as a matter of law, where the evidence in the record is insufficient to support the conviction.

2

Kentucky Rule of Criminal Procedure.

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We first note that 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." In the present case, Martin filed his CR 60.02 motion more than fourteen years after the judgment was entered, and because he could have discovered his claims through the exercise of due diligence at a much earlier time, his motion was not filed within a "reasonable time." See Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Therefore, the circuit court did not abuse its discretion in denying Martin's CR 60.02 motion. Moreover, we note that, through the exercise of due diligence, Martin's claims could have been brought in a timely-filed RCr 11.42 motion, but Martin failed to file such a motion. Thus, his claims were not properly raised in his CR 60.02 motion. See McQueen, 948 S.W.2d at 416. Accordingly, the order of the Madison Circuit Court is affirmed. ALL CONCUR.

BRIEF FOR APPELLANT: John W. Martin, pro se West Liberty, Kentucky

BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky

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