RENDERED: FEBRUARY 17, 2017; 10:00 A.M NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2016-CA-000762-MR CARLOS FAULKNER APPELLANT APPEAL FROM KENTON CIRCUIT COURT v. HON. GREGORY M. BARTLETT, JUDGE ACTION NO. 92-CR-00614 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: MAZE, NICKELL, AND STUMBO, JUDGES. NICKELL, JUDGE: Carlos Faulkner appeals from the Kenton Circuit Court s order denying his motion to vacate sentence pursuant to CR 1 60.02, entered April 20, 2016. Having considered the briefs, the record and the law, we affirm. Lesly Briede was murdered in her home on September 20, 1992, in Kenton County, Kentucky. Faulkner was arrested shortly thereafter and indicted 1 Kentucky Rules of Civil Procedure.
on charges of murder, first-degree burglary, and being a first-degree persistent felony offender (PFO I). Following his guilty plea on November 16, 1993, the circuit court sentenced Faulkner to life imprisonment without benefit of parole for twenty-five years for capital murder, as well as twenty years for first-degree burglary, enhanced to life imprisonment by virtue of his PFO I status. Since pleading guilty, Faulkner has extensively litigated the conviction. On November 21, 1996, nearly three years after entry of final judgment, he filed an RCr 2 11.42 motion to vacate, set aside, or correct sentence. The circuit court found the allegations entirely unsupported by the record, and sanctioned both Faulkner and his attorney for filing a frivolous motion. Faulkner did not appeal the denial of this RCr 11.42 motion, but instead filed a successive RCr 11.42 motion on August 7, 2001, in which he presented a variety of issues, including an allegation that his indictment on charges of capital murder, firstdegree burglary and PFO I was invalid. The circuit court denied the motion on November 28, 2001, concluding all of Faulkner s issues should have been raised in his initial RCr 11.42 motion. Faulkner appealed. A panel of this Court affirmed the circuit court, holding not only that Faulkner s arguments were procedurally barred by being an impermissibly successive RCr 11.42 motion, but also that his claims were without merit. 3 Faulkner filed a third RCr 11.42 motion on August 1, 2006, the circuit court s denial of which was upheld by a panel of this Court on the 2 Kentucky Rules of Criminal Procedure. 3 Faulkner v. Commonwealth, 2002-CA-000435-MR, WL 22025865 (Ky. App. Aug. 29, 2003). -2-
basis of being a successive RCr 11.42 motion. 4 On January 13, 2010, Faulkner filed his first CR 60.02 motion, which was denied by the circuit court on February 19, 2010, and not appealed. Faulkner filed a fourth RCr 11.42 motion, the denial of which was upheld by yet another panel of this Court on March 11, 2011. 5 On April 1, 2016, Faulkner filed his second and successive CR 60.02 motion on the now-familiar grounds that he received an illegal sentence. The motion was summarily denied by the circuit court on April 20, 2016. This appeal follows. Faulkner s sole issue on appeal is that his sentence was contrary to statute and thus illegal. We decline to consider the argument as it is procedurally barred. Purported sentencing errors may be corrected by means of a CR 60.02 motion. Myers v. Commonwealth, 42 S.W.3d 594, 596 (Ky. 2001) overruled on other grounds by McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010). However, a motion under CR 60.02 must be filed in a timely fashion to be considered. CR 60.02 states a motion under the Rule 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. 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 v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). In Gross, the Supreme Court of Kentucky affirmed a trial court s denial of a CR 60.02 motion as untimely when filed five 4 Faulkner v. Commonwealth, 2006-CA-002427-MR, WL 2285800 (Ky. App. Aug. 10, 2007). 5 Faulkner v. Commonwealth, 2010-CA-000427-MR, WL 832107 (Ky. App. March 11, 2011). -3-
years post-judgment. Similarly, a panel of this Court has reasoned, albeit in dicta, denial of a CR 60.02 motion filed four years post-judgment would be within a trial court s discretion. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007). Here, Faulkner s CR 60.02 motion was filed nearly twenty-three years post-judgment. Considering the motion untimely goes beyond mere understatement. Furthermore, [CR 60.02] is not intended as merely an additional opportunity to raise claims which could and should have been raised in prior proceedings, but, rather, is for relief that is not available by direct appeal and not available under RCr 11.42. Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting Gross, 648 S.W.2d at 856). Faulkner has raised a similar set of claims in nearly every post-judgment motion and none has been deemed meritorious. For the claim presented here, we repeat our prior Opinions successive post-conviction motions are disallowed. Faulkner, 2002-CA-000435- MR, at *4. Faulkner s arguments are not merely successive, they are barred by the law of the case doctrine. Faulkner, 2010-CA-000427-MR, 832107 at *2. Briefly stated, Faulkner has offered no compelling reason for us to deem this appeal anything other than an untimely and successive retread of previously unavailing arguments. The courts have much more to do than occupy themselves with successive reruns of RCr 11.42 motions stating grounds that have or should have been presented earlier. Hampton v. Commonwealth, 454-4-
S.W.2d 672, 673 (Ky. 1970) (citing Kennedy v. Commonwealth, 451 S.W.2d 158, 159 (Ky. 1970)). More than a decade ago, we began warning Faulkner our rules do not allow successive post-conviction motions that simply rehash arguments previously made, or ones that could and should have been raised previously. To be fair, those warnings were given to Faulkner in the context of repetitive RCr 11.42 motions. The same prohibition applies to CR 60.02 motions, Stoker v. Commonwealth, 289 S.W.3d 592, 596-97 (Ky. App. 2009) (citing Gross, 648 S.W.2d at 856), and he has now filed his second CR 60.02 motion raising nothing new. Because Faulkner is acting pro se, we give him leeway in his pleadings, but not unlimited leeway. Every filing exhausts court resources. To most effectively use the court s limited resources, we may bar prospective filings to prevent the deleterious effect of such filings on scarce judicial resources. Cardwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011). To that end, we direct the circuit court to deny all future requests for in forma pauperis status filed by Faulkner in an attempt to attack this same conviction again. For the foregoing reasons, we affirm the Kenton Circuit Court s order denying Faulkner s motion to vacate sentence entered April 20, 2016. ALL CONCUR. BRIEF FOR APPELLANT: Carlos Faulkner, pro se Fredonia, Kentucky BRIEF FOR APPELLEE: Susan Roncarti Lenz Frankfort, Kentucky -5-
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