Rego Thomas Cruse v. Commonwealth of Kentucky ( 2023 )

RENDERED: FEBRUARY 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1337-MR
REGO THOMAS CRUSE APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN L. WILSON, JUDGE
ACTION NO. 16-CR-00256
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Rego Cruse appeals an order of the Henderson Circuit
Court denying relief pursuant to CR1 60.02. We affirm.
In June 2016, Cruse was indicted on multiple felony and misdemeanor
charges related to an incident involving his wife. On January 23, 2017, Cruse
entered a plea of guilty to the following charges: (1) first-degree unlawful
1
Kentucky Rule of Civil Procedure.
imprisonment; (2) carrying a concealed weapon by a prior deadly weapon
offender; (3) tampering with physical evidence; (4) driving on a DUI suspended
license (3rd offense, aggravator); (5) first degree possession of a controlled
substance; (6) fourth degree assault (domestic violence); (7) possession of drug
paraphernalia; (8) DUI, third offense (aggravator); and (9) possession of
marijuana. Cruse also entered a plea to being a persistent felony offender (“PFO”),
second degree. The PFO status enhanced the sentences for counts 1-4, and Cruse
ultimately agreed to a sentence of ten years on each count, to be served
concurrently for a total of ten years’ incarceration.2 Cruse was sentenced and final
judgment entered on April 25, 2017.
On January 7, 2019, Cruse filed a motion to set aside his conviction
pursuant to CR 60.02. The trial court denied the motion and Cruse did not appeal.
On September 24, 2021, Cruse filed a second motion to set aside his conviction
pursuant to CR 60.02 and RCr3 10.02, 10.06, and 10.26.4 The trial court denied the
2
Cruse also received three years’ incarceration on count 5; 12 months’ incarceration on each of
counts 6 and 7; and 45 days’ incarceration on count 9, all to be served concurrently with counts
1-4.
3
Kentucky Rule of Criminal Procedure.
4
The trial court did not address issues related to RCr 10.02, 10.06, and 10.26. “An appellate
court is without authority to review issues not raised in or decided by the trial court.” Ten
Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (internal quotation marks and
citations omitted).
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motion, primarily reasoning that all of Cruse’s arguments should have been
brought up on direct appeal or in an RCr 11.42 motion. This appeal followed.
We review the denial of a CR 60.02 motion under an abuse of
discretion standard. Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App.
2009) (citations omitted). “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Cruse makes six arguments on appeal. He asserts that (1) he was
entitled to a separate hearing to determine his status as a PFO; (2) he incorrectly
received a “double enhancement” on the conviction of carrying a concealed deadly
weapon;5 (3) he incorrectly received a “double enhancement” on the conviction of
driving on a DUI suspended license, third offense; (4) his refusal to submit to a
blood test was used as aggravating circumstances against him, in contravention of
Commonwealth v. McCarthy, 628 S.W.3d 18 (Ky. 2021);6 (5) he was ineligible to
5
Kentucky Revised Statute (“KRS”) 527.020(10) provides that carrying a concealed deadly
weapon is a Class A misdemeanor “unless the defendant has been previously convicted of a
felony in which a deadly weapon was possessed, used, or displayed, in which case it is a Class D
felony.” Cruse faced a Class D felony for this charge which was then enhanced by the PFO as
agreed to in his plea.
6
Because he entered a guilty plea, Cruse’s refusal to submit to a blood test was never admitted
into evidence, nor was a motion to suppress filed. See McCarthy, 628 S.W.3d at 26. Moreover,
as the trial court pointed out, Cruse’s conviction was final in 2017 and McCarthy was rendered
in 2021.
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be charged and convicted of first-degree unlawful imprisonment; and (6) the trial
court abused its discretion because he was “overcharged.”
The Commonwealth urges this Court to affirm the trial court, in part,
because Cruse’s current CR 60.02 motion is successive. The Commonwealth’s
argument is well-taken. The trial court addressed the merits of each of Cruse’s
arguments and only briefly mentioned that this was his second CR 60.02 motion.
We do not disagree with the trial court’s general reasoning that each issue raised
by Cruse could have been resolved by direct appeal or under a motion pursuant to
RCr 11.42. The Kentucky Supreme Court has clarified the use and timing of the
various procedural remedies available to a defendant post-conviction. To wit,
[t]he structure provided in Kentucky for attacking
the final judgment of a trial court in a criminal case is not
haphazard and overlapping, but is organized and
complete. That structure is set out in the rules related to
direct appeals, in RCr 11.42, and thereafter in CR 60.02.
CR 60.02 is not intended merely as an additional
opportunity to raise Boykin[7] defenses. It is for relief that
is not available by direct appeal and not available under
RCr 11.42. The movant must demonstrate why he is
entitled to this special, extraordinary relief. Before the
movant is entitled to an evidentiary hearing, he must
affirmatively allege facts which, if true, justify vacating
the judgment and further allege special circumstances
that justify CR 60.02 relief.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
7
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
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Additionally, Kentucky law is clear that a successive CR 60.02 motion
is impermissible upon any ground that could have been raised in a prior CR 60.02
proceeding. Stoker, 289 S.W.3d at 597. Stated differently, “CR 60.02 does not
permit successive post-judgment motions[.]” Foley v. Commonwealth, 425
S.W.3d 880, 884 (Ky. 2014). Accordingly, Cruse’s successive CR 60.02 motion is
procedurally barred and we do not reach its merits.8 The order of the Henderson
Circuit Court is therefore affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Rego Thomas Cruse, pro se Daniel Cameron
La Grange, Kentucky Attorney General of Kentucky
Christina L. Romano
Assistant Attorney General
Frankfort, Kentucky
8
We also note that, in contravention of Kentucky Rule of Appellate Procedure (“RAP”)
32(A)(4) (formerly CR 76.12(4)(c)(v)), Cruse does not have a statement of preservation at the
beginning of his arguments. Nor does he cite to the record. Our options when an appellant fails
to abide by the RAP are: “(1) to ignore the deficiency and proceed with the review; (2) to strike
the brief or its offending portions, CR 76.12(8)(a) [now RAP 31(H)]; or (3) to review the issues
raised in the brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010). See also Ford v. Commonwealth, 628 S.W.3d 147 (Ky. 2021). However, because
we affirm on other grounds, we decline to further address violations of RAP.
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