Meiesha Sharp v. Commonwealth of Kentucky ( 2021 )

RENDERED: OCTOBER 1, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1158-MR
MEIESHA SHARP APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN L. WILSON, JUDGE
ACTION NOS. 12-CR-00162, 12-CR-00163, AND 12-CR-00192
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
COMBS, JUDGE: This is a criminal case in which Appellant, Meiesha Sharp
(Sharp), appeals from the denial of her motion to vacate her conviction pursuant to
CR1 60.02. After our review, we affirm.
On September 12, 2012, a Henderson County grand jury indicted
Sharp on four counts of first-degree robbery, all of which occurred over a two-
1
Kentucky Rules of Civil Procedure.
week period in June 2012. (Nos. 12-CR-00162, 12-CR-00163, and 12-CR-00192).
Sharp was also charged federally for a bank robbery that occurred in the same time
period.
Sharp accepted a plea bargain and pled guilty to the state charges in
Henderson Circuit Court in exchange for a 15-year sentence to serve on each of the
robberies to run concurrently with each other and concurrently with Sharp’s
sentence for her federal conviction in No. 4:12-CR-28-JHM. On October 2, 2014,
the court entered judgments of conviction and sentence in accordance with the plea
agreement.
On April 16, 2019, Sharp, pro se, filed a motion pursuant to CR
60.02, asserting that she is presently serving a 15-year sentence at the Kentucky
Correctional Institution for Women (KCIW) on the state indictments, which were
to be run concurrently with her federal conviction; that when she signed the plea
agreement, she was not notified that the United States District Court would have to
agree to the concurrent running of the sentences; and that upon being incarcerated
at KCIW, Sharp was notified “that she will be serving the 15 year sentence at 85%
in a Kentucky State Prison then released to F.B.O.P.[2] where she would serve a 10
year sentence at 85% on Federal Conviction 12-CR-28-JHM.” Sharp contended
that if she had known that the plea agreement would result in her serving a total of
2
Federal Bureau of Prisons.
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25 years at 85% instead of 15 years at 85%, she never would have signed it. Sharp
requested that her state sentence be amended from 15 years at 85% to 10 years at
85%, that she serve out its remainder in Kentucky, and that she then be released to
the F.B.O.P.
By amended order entered May 6, 2019, the trial court denied Sharp’s
motion without an evidentiary hearing as follows:
[Sharp] now moves to vacate the conviction in this
case pursuant to CR 60.02. She states that her attorney
did not advise her that Kentucky’s recommendation was
not binding on the federal court and that there was a
likelihood that she would have to serve the state sentence
consecutively to the federal one.
CR 60.02 allows a court, in its discretion, to
relieve a party of its final judgment if that judgment is
void or inequitable, or for other reasons of an
extraordinary nature. Grounds for relief under CR 60.02
are not the same as under RCr[3] 11.42. Gross v.
Commonwealth, Ky., 648 S.W.2d 853 (1983). In a
criminal case, these rules are not overlapping but separate
and distinct. CR 60.02 is not intended merely as an
additional opportunity to litigate the same issues which
were presented or could reasonably have been presented
by direct appeal or RCr 11.42 proceedings. Id., 856;
McQueen v. Commonwealth, Ky., 948 S.W.2d 415(1997).
Review of the record shows that the defendant’s
argument, ineffective assistance of counsel, is one that
could reasonably have presented [sic] under RCr 11.42.
One of the defendant’s exhibits is a letter the Department
of Public Advocacy [(DPA)] wrote to Sharp dated March
3
Kentucky Rules of Criminal Procedure.
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24, 2017, which states that the federal government is not
bound by state judgments and advises that under federal
law, conviction of a violent crime enhanced by
possession of a gun would carry a “mandatory
consecutive sentence.”4 This letter was sent within the
three years allowed to file a motion under RCr 11.42.
Further, having reviewed the record, the Court
does not believe that Sharp has shown that [s]he is
entitled to relief. First, the Court concludes that the
motion was not made within a reasonable time. It has
been over four years since the defendant’s sentencing.
Finally, . . . the Court does not believe that the
defendant’s allegations show cause for the extraordinary
relief contemplated by CR 60.02.
Sharp appeals. CR 60.02(f) provides that a court may relieve a party
from its final judgment for “any other reason of an extraordinary nature justifying
relief.” The rule further provides that “[t]he motion shall be made within a
reasonable time[.]”
Sharp first argues that her CR 60.02 motion was timely and should be
reviewed on the merits.
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. . . .
Absent some flagrant miscarriage of justice an appellant
court should respect the trial court’s exercise of
discretion in these circumstances.
4
The letter, from the DPA office in LaGrange, Kentucky, is actually dated March 27, 2017, and
it states that it is in response to Sharp’s letter requesting assistance received on March 24, 2017.
(Supplemental Record, Exhibit D.2 to CR 60.02 Motion).
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Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). Sharp maintains that
the trial court abused its discretion in holding that her motion was not made in a
reasonable time “simply because it had been over four years since she was
sentenced without acknowledging or accounting for the diligence with which Ms.
Sharp pursued her case[.]” We cannot agree.
The trial court explained that it had reviewed the record and that one
of Sharp’s exhibits was the DPA’s letter of March 27, 2017, to Sharp stating that
the federal government is not bound by state judgments and that under federal
law, conviction of a violent crime enhanced by possession of a gun would carry a
“mandatory consecutive sentence.” The trial court found that “[t]his letter was
sent within the three years allowed to file a motion under RCr 11.42.”5
We cannot say that the trial court abused its discretion in determining
that Sharp did not file her CR 60.02 motion within a reasonable time.
Sharp next argues that her plea agreement is essentially a contract
subject to the principles of contract law and that she is entitled to the benefit of her
bargain, citing, inter alia, Elmore v. Commonwealth, 236 S.W.3d 623 (Ky. App.
2007). The Commonwealth asserts that the “contract claims” Sharp raises on
5
RCr 11.42(10) provides that “[a]ny motion under this rule shall be filed within three years after
the judgment becomes final[.]” (Emphasis added.)
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appeal were not “explicitly mentioned” in her CR 60.02 motion and cannot be
raised for the first time on appeal. We agree.
On appeal, a party may only present those issues that
were fully presented to the trial court and, further, may
not bring forward new legal grounds on appeal to
challenge those errors. This rule is a keystone of
Kentucky appellate practice, and the policies
undergirding it remain strong.
Henderson v. Commonwealth, 438 S.W.3d 335, 343 (Ky. 2014) (footnote omitted).
In the case before us, the trial court did not accept Sharp’s agreement
that she was entitled to the relief she sought, and it believed correctly that her
argument is one that she could have presented under RCr 11.42. It is well-
established that:
The 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 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, 648 S.W.2d at 856. In McQueen v. Commonwealth, 948 S.W.2d 415, 416
(Ky. 1997), our Supreme Court further explained as follows:
The interrelationship between CR 60.02 and RCr 11.42
was carefully delineated in Gross v. Commonwealth, Ky.,
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648 S.W.2d 853 (1983). In a criminal case, these rules
are not overlapping, but separate and distinct. 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 period when the remedy is available to
him. Civil Rule 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. RCr 11.42(3); Gross v.
Commonwealth, supra, at 855, 856. The obvious
purpose of this principle is to prevent the relitigation of
issues which either were or could have been litigated in a
similar proceeding. As stated in Gross, CR 60.02 was
enacted as a substitute for the common law writ of coram
nobis.
The purpose of such a writ was to bring
before the court that pronounced judgment
errors in matter of fact which (1) had not
been put into issue or passed on, (2) were
unknown and could not have been known to
the party by the exercise of reasonable
diligence and in time to have been otherwise
presented to the court, or (3) which the party
was prevented from so presenting by duress,
fear, or other sufficient cause. Black’s Law
Dictionary, Fifth Edition, 487, 144.
Id. at 856. In summary, 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, 948 S.W.2d at 416 (emphases added).
We agree with the trial court that Sharp could have reasonably -- and
timely -- presented her claim under RCr 11.42. She failed to do so. Accordingly,
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CR 60.02 is not available to Sharp as an avenue of relief. We conclude that the
trial court did not abuse its discretion in denying Sharp’s motion.
We affirm the order of the Henderson Circuit Court denying the CR
60.02 motion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Christopher C. Bailey
Assistant Attorney General
Frankfort, Kentucky
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