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RENDERED: APRIL 2, 2004; 10:00 a.m.
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Commonwealth Of Kentucky
Court Of  Appeals

NO. 2003-CA-000380-MR

THOMAS R. PAYNE APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE TOM McDONALD, JUDGE
INDICTMENT NO. 147073

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

** ** ** ** **
BEFORE: GUIDUGLI and MINTON, Judges; and MILLER, Senior Judge.1
MINTON, Judge: Thomas Payne appeals from two opinions and
orders of the Jefferson Circuit Court: one entered on
November 7, 2002, which denied his motion for relief pursuant to
Kentucky Rules of Civil Procedure (CR) 60.02, and one entered on
January 2, 2003, which denied his motion to alter, amend, or
vacate the November 7, 2002, opinion and order pursuant to
CR 59.05. After reviewing the record, we conclude that Payne

Senior Judge John D. Miller sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.

extraordinary relief under CR 60.02 and is not entitled to
relief by this court under CR 59.05. Therefore, we affirm the
Jefferson Circuit Court.

On May 24, 1972, a Jefferson County grand jury
indicted Payne on one count of rape of a female over the age of
twelve, Kentucky Revised Statutes (KRS) 435.090, and one count
of detaining a female, KRS 435.110, for acts which occurred in
1971.2 When the indictment was returned, Payne was incarcerated
in Georgia for unrelated crimes. On May 17, 1977, a Jefferson
County grand jury indicted Payne on two additional counts of
detaining a female, KRS 435.110, for acts which also occurred in
1971. The two indictments were then consolidated for trial.
Payne was paroled by Georgia and released to Kentucky pursuant
to the interstate detainer agreement. On September 7-8, 1977,
Payne was tried by jury in Jefferson Circuit Court on one count
of rape of a female over twelve and two counts of detaining a
female.3 The jury returned a guilty verdict on all three counts.
The circuit court entered a judgment against Payne and sentenced
him to life imprisonment for rape and five years each for both

2 Both KRS 435.090 and KRS 435.110 later were repealed with the
enactment of the Kentucky Penal Code, which became effective on
January 1, 1975.

3 The third count of detaining a female was not tried at this time
and was subsequently dismissed.

currently. Payne appealed his conviction to the Kentucky
Supreme Court, which affirmed the conviction on April 1, 1980.
He then filed a motion for relief pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42. This motion was denied by the
circuit court on September 2, 1981, and the denial of this
motion was subsequently affirmed on appeal. Payne was paroled
in 1983. In December 1986, he was convicted of another crime in
California and incarcerated there. After being released from
custody in California in 2000, he returned to Kentucky to serve
out the remainder of his life sentence.

Payne filed a pro se CR 60.02 motion on February 8,
2001, asserting that he received ineffective assistance of
counsel both at trial and on direct appeal and, alternatively,
that his sentence of life imprisonment for rape is unconsti

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