Commonwealth of Kentucky Court of Appeals

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1 RENDERED: JUNE 2, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR JAVON HEARN APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE OLU A. STEVENS, JUDGE ACTION NO. 02-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES. THOMPSON, JUDGE: Javon Hearn appeals from an order of the Jefferson Circuit Court denying his Kentucky Rule of Civil Procedure (CR) 60.02(f) motion. We affirm. Hearn was convicted following a jury trial of murder, Kentucky Revised Statute (KRS) , first-degree robbery, KRS , and tampering

2 with evidence, KRS After the jury rendered its verdict, Hearn entered into a sentencing agreement with the Commonwealth for a recommendation of a sentence of life imprisonment without the possibility of parole for twenty-five years on the murder charge, twenty years on the robbery charge and five years on the tampering with evidence charge, to run concurrently. Hearn retained his right to appeal from the conviction. On July 22, 2005, the trial court entered a judgment of conviction and sentence consistent with the agreed recommendation. Hearn filed a direct appeal to the Kentucky Supreme Court. The Supreme Court affirmed Hearn s conviction in an unpublished opinion, 1 which became final on September 11, In his direct appeal, Hearn raised issues of prosecutorial misconduct and the admission of testimony on an alleged improper photo-lineup identification. On February 13, 2009, Hearn filed a pro se post-conviction collateral action seeking relief pursuant to Kentucky Rule of Criminal Procedure (RCr) and CR 60.02, and requesting an evidentiary hearing. Hearn alleged prosecutorial misconduct, perjury, fraud, and ineffective assistance of counsel. On March 10, 2009, the trial court entered an order denying his motions without an evidentiary hearing. On June 3, 2011, this Court rendered an opinion affirming in part and remanding the case to the trial court for further proceedings on the limited issue of 1 Hearn v. Commonwealth, 2005-SC MR, 2008 WL (Ky. 2008) (unpublished). -2-

3 ineffective assistance of counsel involving whether trial counsel properly investigated potential alibi witnesses. 2 After conducting an evidentiary hearing, the trial court entered an order on June 5, 2014, denying Hearn s motion with respect to the alibi issue. On June 27, 2014, Hearn filed an appeal from the June 5, 2014 order denying his RCr motion. On May 8, 2015, this Court affirmed the trial court s order denying Hearn s RCr motion. 3 In November 2010, Hearn filed a second pro se CR motion presenting six arguments: (1) the indictment failed to give sufficient notice of the offenses; (2) the Commonwealth failed to prove the essential elements of the offenses; (3) conviction for both murder and robbery violated double jeopardy; (4) the instruction on murder improperly permitted a non-unanimous verdict; (5) the Commonwealth improperly elicited testimony from a witness about a prior photopak identification without an in-court identification; and, (6) trial counsel failed to investigate and present witness testimony on an alibi defense. Hearn also alleged ineffective assistance of counsel as to each issue. The Commonwealth filed a response arguing the motion was barred as a successive motion. A ruling on the motion was delayed while the litigation on Hearn s prior RCr 11.42/CR motion proceeded. 2 Hearn v. Commonwealth, 2009-CA , 2011 WL (Ky.App. 2011) (unpublished). 3 Hearn v. Commonwealth, 2014-CA , 2015 WL (Ky.App. 2015) (unpublished). -3-

4 In June 2014, Hearn filed a motion to supplement the November 2010 CR motion pursuant to CR On August 19, 2014, the trial court entered an order denying the November 2010 CR motion. The trial court further denied the motion with respect to the claim for ineffective assistance of counsel as to each of the issues. Hearn appealed. This Court reviews the denial of a CR motion under the abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). After reviewing the record, we conclude Hearn s CR motion was an improper successive post-judgment motion. As the Supreme Court stated in McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997): The interrelationship between CR and RCr was carefully delineated in Gross v. Commonwealth, Ky., 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 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 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr proceedings. 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 was enacted as a substitute for the common law writ of coram nobis

5 (citations omitted). In summary, CR 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. The validity of the photo-lineup identification was raised and decided by the Supreme Court in the direct appeal. The other issues raised in the CR motion at issue in this appeal could and should have been raised either in the direct appeal or in the prior RCr motion. Therefore, Hearn s CR motion is a successive motion, which precludes review of the issues raised in that motion. We conclude the trial court did not abuse its discretion by denying Hearn s CR motion. Court. For the foregoing reasons, we affirm the order of the Jefferson Circuit ALL CONCUR. BRIEFS FOR APPELLANT: Michael L. Goodwin Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Ken W. Riggs Assistant Attorney General Frankfort, Kentucky -5-