George Ellis Wade v. Commonwealth of Kentucky ( 2020 )

RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2017-CA-001845-MR
GEORGE ELLIS WADE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 84-CR-001549-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
JONES, JUDGE: George Ellis Wade, pro se, appeals from the Jefferson Circuit
Court’s order denying his motion to vacate his sentence pursuant to CR1 60.02, CR
60.01, and RCr2 10.26. We affirm the circuit court’s denial of relief.
1
Kentucky Rules of Civil Procedure.
2
Kentucky Rules of Criminal Procedure.
In 1984, Wade and his codefendant, Victor Taylor, were charged with
the murders of two high school students in Jefferson County. The relevant facts of
the case were summarized by the Kentucky Supreme Court in its 1990 opinion in
Taylor’s direct appeal:
The prosecution presented evidence in the form of a
statement by Wade which indicated that he and Taylor
kidnapped and robbed the two students who had gotten
lost on their way to a football game. The young men had
stopped at a fast food restaurant to ask directions when
they were confronted by Taylor and Wade. Other
witnesses indicated that Taylor had a gun and forced the
victims to get into their car and drive away. Wade in his
statement said that he and Taylor robbed the boys and
that he had removed both boys’ trousers, bound their
ankles and gagged them in a Louisville alley. Wade’s
statement was that Taylor decided to kill the two victims
because he was afraid they would identify them. Wade
said he waited on a nearby street while Taylor shot both
boys in the head.
Taylor v. Commonwealth, 821 S.W.2d 72, 73-74 (Ky. 1990), overruled by St. Clair
v. Roark, 10 S.W.3d 482 (Ky. 1999). Due to the extensive publicity surrounding
the case, Wade’s trial was moved to Fayette County,3 where he was convicted of
two counts each of murder, kidnapping, and first-degree robbery. Wade was
thereafter sentenced to life imprisonment.
3
Because Wade’s case was moved to Fayette County, his judgment of conviction has two case
numbers: Jefferson Circuit No. 84-CR-001549-002, and Fayette Circuit No. 85-CR-00334-002.
The caption of the appeal sub judice uses the Jefferson Circuit case number because Wade is
appealing from the Jefferson Circuit Court’s order denying him relief from his sentence.
-2-
Wade filed a timely notice of appeal from his convictions, but he
subsequently moved to dismiss the appeal. The Kentucky Supreme Court granted
his motion and dismissed his appeal with prejudice. In 1993, Wade, pro se, moved
the Jefferson Circuit Court for relief under RCr 11.42, arguing he received
ineffective assistance of counsel. The circuit court denied relief, and we affirmed.4
In 2000, Wade moved the Kentucky Supreme Court to reinstate his direct appeal,
and the Supreme Court denied his motion by order.5 Wade then moved this Court
for a belated appeal, which we denied in 2002.6
Thereafter, once again acting without the assistance of counsel, Wade
moved the circuit court to vacate his sentence under CR 60.02, CR 60.01, and RCr
10.26, arguing the evidence at trial showed he was actually innocent of the crimes
for which he was convicted and the instructions at trial were erroneous. On July
14, 2017, the circuit court denied the motion without a hearing, finding Wade’s
claims were not cognizable under CR 60.02, CR 60.01, or RCr 10.26. This appeal
followed.7
4
Wade v. Commonwealth, No. 1994-CA-001034-MR (Ky. App. Jul. 19, 1996).
5
Wade v. Commonwealth, No. 2000-SC-001034-MR (Ky. Dec. 14, 2000).
6
Wade v. Commonwealth, No. 2002-CA-000184-MR (Ky. App. Mar. 18, 2002).
7
Wade filed his notice of appeal on September 27, 2017; however, Wade’s appellant brief was
not filed until well over two years later on April 22, 2020, and his appeal was not assigned to this
panel for a final decision until July 21, 2020. The delay was largely the product of Wade’s own
-3-
“We review the denial of a CR 60.02 motion for an abuse of
discretion.” Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing
Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). “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). “The burden of proof in a CR 60.02
proceeding falls squarely on the movant to affirmatively allege facts which, if true,
justify vacating the judgment and further allege special circumstances that justify
CR 60.02 relief.” Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014)
(citations and internal quotation marks omitted). “[W]e will affirm the lower
court’s decision unless there is a showing of some ‘flagrant miscarriage of
justice.’” Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.
1983)).
Wade presents three interrelated arguments on appeal. First, he
contends the circuit court should have granted relief because the jury’s verdict was
inconsistent with the facts presented at trial. Second, Wade contends he suffered
from defective jury instructions at trial. Third, he contends his life sentences were
void because the sentences were “not provided for by law.” (Appellant’s Brief at
2.) We will briefly consider each of Wade’s arguments in turn.
actions in filing numerous procedural motions with this Court as well as his failure to respond to
orders of this Court in a timely manner.
-4-
For Wade’s first two arguments, the Commonwealth argues the circuit
court correctly denied relief because Wade’s claims should have been raised in a
direct appeal or by his motion pursuant to RCr 11.42; therefore, his instant CR
60.02 motion is procedurally barred. We agree and hold Wade has presented no
grounds for extraordinary relief cognizable under CR 60.02. “CR 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.”
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Wade’s claims
regarding the circumstances of his trial, including evidentiary issues and jury
instruction issues, were known to him or should have been known to him at
sentencing or shortly thereafter. “CR 60.02 is not intended to provide relief for
grounds that could be attacked through direct appeals or collateral motions such as
grounds under RCr 11.42.” Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky.
2017).
For Wade’s third argument, the Commonwealth admits unauthorized
sentences are unlawful and the issue may be raised at any time, citing Phon v.
Commonwealth, 545 S.W.3d 284, 301-02 (Ky. 2018). However, the
Commonwealth correctly points out that murder is a capital offense under KRS8
507.020 and punishable by a life sentence pursuant to KRS 532.030. Furthermore,
8
Kentucky Revised Statutes.
-5-
these laws were in effect at the time Wade was convicted, approximately thirty-
five years ago. Because his sentence was authorized by statutes in effect at the
time of his conviction, Wade’s argument regarding his purportedly unlawful
sentence lacks merit.
Finally, for the sake of completeness, we will note here that the circuit
court succinctly and correctly dismissed Wade’s claims within the contexts of CR
60.01 and RCr 10.26. CR 60.01 allows for the correction of clerical mistakes in
the judgment, which is not relevant to Wade’s underlying substantive arguments.
See Hutson v. Commonwealth, 215 S.W.3d 708, 717 (Ky. App. 2006). Similarly,
RCr 10.26, the criminal rule describing palpable error review, is inapplicable to
Wade’s arguments here. “Neither RCr 10.26 nor its language has application when
reviewing a decision under CR 60.02[.]” Stoker v. Commonwealth, 289 S.W.3d
592, 598 (Ky. App. 2009).
For the foregoing reasons, we affirm the Jefferson Circuit Court’s
order denying relief pursuant to CR 60.02.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
George E. Wade, pro se Daniel Cameron
La Grange, Kentucky Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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