Alan Barnett v. Commonwealth of Kentucky ( 2023 )

RENDERED: FEBRUARY 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1452-MR
ALAN BARNETT APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 14-CR-00375
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND TAYLOR, JUDGES.
CETRULO, JUDGE: Appellant Alan Barnett (“Barnett”), pro se, appeals an order
of the Kenton Circuit Court denying his motion to vacate a judgment of conviction.
Upon review, we affirm.
I. Factual and Procedural History
In 2016, Barnett pled guilty to sodomy in the first degree and was
sentenced to 17 years of imprisonment. In August 2021, more than four years after
his final judgment, Barnett filed a CR1 60.02 motion to vacate his judgment due to
ineffective assistance of counsel. More specifically, Barnett argued that his legal
counsel, a public defender, failed to disclose the extent of her caseload to him,
thereby perpetrating a fraud upon the proceedings. In November 2021, the trial
court denied Barnett’s motion,2 holding: 1) it was not filed within a reasonable
time; 2) his claims of ineffective assistance of counsel should have been raised by
an RCr3 11.42 motion instead of a CR 60.02 motion; and 3) his assertions of fraud
failed because he did not present sufficient evidence to support the claim.
Thereafter, Barnett appealed.
II. Standard of Review
We review the denial of a CR 60.02 motion for abuse of discretion.
Young v. Richardson, 267 S.W.3d 690, 697 (Ky. App. 2008). “The test for abuse
1
Kentucky Rule of Civil Procedure.
2
The order on appeal states that the motion to vacate his judgment was brought “pursuant to CR
60.02 or 60.03 and the Eighth and Fourteenth Amendments to the United States Constitution[,]”
but the order itself only specifically addresses CR 60.02.
3
Kentucky Rule of Criminal Procedure.
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of discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Id. (citation omitted).
III. Analysis
On appeal, Barnett’s line of reasoning is chaotic, but he repeats
essentially the same argument presented to the lower court. He contends that his
legal representation was not effective because she did not disclose her caseload to
him and they “never entered into a meeting of the minds.” He argues that this
amounted to a “constructive fraud” upon the proceedings. However, Barnett gives
no specific facts or evidence to support his argument and seems to be under the
mistaken belief that none is required.4 For example, he does not explain how his
attorney’s caseload affected his representation; he does not state any errors she
made or poor guidance she gave him; nor does he challenge the specific legal
conclusions reached by the trial court in the order on appeal. Limiting our review
to the order on appeal, we address Barnett’s arguments within the confines of
CR 60.02,5 as did the circuit court. D.W. Wilburn, Inc. v. H&H Painting, LLC, 648
S.W.3d 687, 693 (Ky. App. 2022) (citing Fischer v. Fischer, 197 S.W.3d 98, 102
4
His appellate brief states he is “not required to show any evidence other than it was so
procured.”
5
CR 60.02, states, in pertinent part, “On motion a court may, upon such terms as are just, relieve
a party or his legal representative from its final judgment, order, or proceeding upon the
following grounds: . . . (d) fraud affecting the proceedings, other than perjury or falsified
evidence; . . . . The motion shall be made within a reasonable time[.]”
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(Ky. 2006) (“An appellate court is without authority to review issues not raised in
or decided by the trial court.”)).
When the circuit court denied Barnett’s motion to vacate his
judgment, its analysis, in part, was as follows:
“CR 60.02 allows appeals based upon claims of
error ‘that were unknown and could not have been known
to the moving party by exercise of reasonable diligence
and in time to have been otherwise presented to the
court.’” Sanders v. Commonwealth, 339 S.W.3d 427,
437 (Ky. 2011) (quoting Young v. Edward Technology
Group, Inc., 918 S.W.2d 229, 231 (Ky. App. 1995)).
“The movant must demonstrate why he is entitled to this
special, extraordinary relief.” Gross v. Commonwealth,
648 S.W.2d 853, 856 (Ky. 1983). “The relief is extreme,
limited, and reserved for those times when justice itself
requires an avenue for the plight endured by the
aggrieved party.” [Meece v. Commonwealth, 529 S.W.3d
281, 285 (Ky. 2017) (citation omitted)].
A motion such as this one is required by the rule to
be brought “within a reasonable time.” “What constitutes
a reasonable time in which to move to vacate a judgment
under CR 60.02 is a matter that addresses itself to the
discretion of the trial court.” [Gross, 648 S.W.2d at 858].
The Kentucky Court of Appeals has held that “four years
after he entered his guilty plea, was untimely.” Reyna v.
Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007).
While this does not mean that four years under any
circumstances must be held to be untimely, this court
finds that in this case the motion has not been brought
within a reasonable time.
Additionally, “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
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period when the remedy is available to him. [CR] 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.” McQueen v. Commonwealth, 948 S.W.2d
415, 416 (Ky. 1997). [Barnett’s] allegation that the
caseload of his defense counsel was unduly high should
have been presented pursuant to a motion pursuant to
RCr 11.42 asserting ineffective assistance of counsel.
CR 60.02 does not afford a remedy for the reasons
presented.
Furthermore, [Barnett] has not presented sufficient
evidence to support his claim of alleged fraud on the part
of his counsel or of the Department of Public Advocacy
which would have rendered the judgment void because of
such fraud. “CR 60.02 requires extrinsic fraud or fraud
upon the court. . . . Fraud upon the court is that species
of fraud which does or attempts to subvert the integrity of
the court itself. Such fraud has been construed to include
only the most egregious conduct, such as bribery of a
judge or a member of the jury, evidence fabrication, and
improper attempts to influence the court by counsel.
Generally, fraud between the parties, without more, does
not rise to the level of fraud upon the court. . . . Further,
extrinsic fraud does not include fraudulent
representations or concealments made during court
proceedings.” Goldsmith v. Fifth Third Bank, 297
S.W.3d 898, 904 [] (Ky. App. 2009) [(internal quotation
marks and citations omitted)]. Here, it cannot be said
that the extent of the caseloads carried by the attorneys of
the Department of Public Advocacy, which is well
known to the court, would support a finding of “extrinsic
fraud” or “fraud upon the court” as contemplated in CR
60.02(d).
There is no recognized ground for the relief sought
here and CR 60.02 does not afford a remedy for the
reasons cited by [Barnett]. The court does not find
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[Barnett’s] arguments to be sufficient reason to modify
the judgment in this case.
We find no error, and no grounds to depart from or add to the circuit
court’s well-reasoned analysis. The trial court did not abuse its discretion when it
found that there was no available remedy for Barnett through his CR 60.02 motion
at this time.
IV. Conclusion
In light of the foregoing, the order of the Kenton Circuit Court
denying Barnett’s CR 60.02 motion is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Alan Barnett, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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