Carter v. Com.
| Decision Date | 12 November 1982 |
| Citation | 641 S.W.2d 758 |
| Parties | Lonnie Joe CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Jack E. Farley, Public Advocate, M. Gail Robinson, Asst. Public Advocate, Frankfort, for appellant.
Steven L. Beshear, Atty. Gen., R. Thomas Carter, Asst. Atty. Gen., Frankfort, for appellee.
Before COOPER, HOGGE and VANCE, JJ.
This is an appeal from an order of the trial court overruling the appellant's pro se motion, made pursuant to CR 60.02, challenging a 1973 guilty plea to a charge of storehouse breaking, as well as a guilty plea entered in 1977 to a charge of knowingly receiving stolen property. On appeal, the issues are: (1) whether the trial court erred in overruling the appellant's motion to vacate such judgments given the fact that his pleas of guilty were not entered voluntarily, knowingly, and intelligently; and (2) whether the trial judge committed reversible error in refusing to disqualify himself given the language of KRS 26A.015(2)(b). On review, we reverse and remand.
The facts giving rise to this action are as follows: In 1973, the appellant, Lonnie Joe Carter, was indicted on two counts of storehouse breaking. On October 9, he entered a plea of guilty to one count. Judgment was entered against him imposing a three-year sentence. In 1977, the appellant was indicted for knowingly receiving stolen property worth more than $100, and for being a persistent felony offender. He pleaded guilty to the indictment charging him with knowingly receiving stolen property. The charge of being a persistent felony offender was dismissed. In May of 1977, a final judgment was entered sentencing him to five years imprisonment.
On February 26, 1981, the appellant filed a pro se motion, challenging the validity of the guilty pleas he had entered in 1973 and 1977. CR 60.02. Specifically, he alleged that neither plea was voluntarily, knowingly, or intelligently entered, and requested an evidentiary hearing. On August 5, 1981, the trial judge, Honorable J. Thomas Soyars, entered an order overruling the appellant's motion, without an evidentiary hearing. The appellant then filed a pro se motion for a new trial, challenging the trial judge's ruling on the ground that he was an assistant prosecutor at the time the indictments were issued and thus had a conflict of interest. Again, he requested an evidentiary hearing. The trial judge overruled said motion. It is from this order that the appellant now appeals.
CR 60.02 states, in part, as follows:
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:
(a) mistake, inadvertence, surprise or excusable neglect;
(b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02;
(c) perjury or falsified evidence ... or
(f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c), not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this Rule does not affect the finality of a judgment or suspend its operation.
Although the appellant argues that his pleas of guilty were not entered voluntarily or intelligently, it is questionable whether his CR 60.02 motion was timely filed. A motion to set aside a judgment on the basis of any reason of an extraordinary nature must be "made within a reasonable time..." Here, the appellant is attempting to attack judgments which were entered in 1973 and 1977. And, to secure relief under CR 60.02(f), extraordinary circumstances must be shown to exist. Again, it is questionable whether such extraordinary circumstances exist. See Lewallen v. Commonwealth, Ky.App., 584 S.W.2d 748 (1979).
Nevertheless, the trial judge committed reversible error in not disqualifying himself given the language of KRS 26A.015(2)(a), (b), which states as follows:
(2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:
(a) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings,...
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