RENDERED: JULY 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2019

- CA

- 1655

- MR

SHERMAN DEJUAN DAVIS APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCH PERRY , JUDGE ACTION NO. 94

- CR

- 00 2195

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
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BEFORE: CAL D WELL, DIXON , AND L. THOMPSON , JUDGES

. THOMPSON , L., JUDGE: Sherman Dejuan Davis (“Appellant”) appeal s from an opinion and order of the Jefferson Circuit Court denying his motion for a new trial pursuant to Kentucky Rules of Civil Procedure (“CR”) 60.02 and CR 60.03 . He argues that he received ineffective assistance of counsel, that there was a Brady 1

1 Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2 d 215 (1963)

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violation when he did not receive exculpatory documents prior to trial, and that the
d ouble j eopardy c lause was violated when the same evidence was used to convict
him for two offenses . We conclude that a claim of ineffective assistance may not properly be raised via CR 60.02 and CR 60.03; that Appellant’s trial counsel did receive the exculpatory evidence that Appellant claims was withheld; and, that the proper proced ure for raising a double jeopardy claim is via direct appeal. For these reasons, we affirm the opinion and order of the Jefferson Circuit Court.

FACTS AND PROCEDURAL HISTORY In 1995, Appellant was convicted in Jefferson Circuit Court of
Murder and Criminal Abuse in the First Degree. 2 His conviction was affirmed by the Kentucky Supreme Court in Davis v. Commonwealth , 967 S.W.2d 574 (Ky. 1998). On June 18, 2001, Appellant filed a Kentucky Rules of Criminal Procedure (“ RCr ”) 11.42 motion alleging i neffective assistance of counsel. The motion was denied on November 13, 2001. A panel of this Court affirmed in part, vacated in part , and remanded for an evidentiary hear ing . On remand , and after an extensive delay, the trial court conducted a hearing and again denied Appellant’s RCr 11.42 motion. This Court affirmed the trial court’s decision on September 21,
2012.

2 Kentucky Revised Statues (“KRS”) 507.020 and KRS 508.100.- 3

- On March 14, 2018, Appellant moved for a new trial based on CR 60.02 and CR 60.03. In support of the motion, Appellant again argued that he
received ineffective assistance of counsel , that there was a Brady violation when the Commonwealth failed to turn over exculpatory documents prior to trial , and
that the d ouble j eopardy c lause was violated. On September 4, 2019, the trial court
denied the motion upon determining that an ineffective assistance of counsel claim must be raised, if at all, via RCr 11.42, that Appellant did receive the exculpatory materials prior to trial, and that the double jeopardy claim should have been raised
on direct appeal to the Kentucky Supreme Court. This appeal followed. 3

ARGUMENT AND ANALYSIS Appellant, pro se , argues that the Jefferson Circuit Court committed reversible error in denying his motion for CR 60.02 and CR 60.03 relief. Though it is unclear from A ppellant’s written argument, he appears to argue that his trial counsel failed to provide effective assistance. He goes on to argue that newly discovered evidence was improperly withheld from him prior to trial, which proves that he could not have committ ed the offense. He also asserts that a double

3 On October 9, 2020, the Department of Public Advocacy moved to withdraw its representation of Appellant upon determining that this appeal is not one that a reasonable person with adequate means would be willing to bring at his own expense. See KRS 31.110(2)( c). The motion was granted, and Appellant proceeded pro se.- 4

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jeopardy violation occurred because the Commonwealth used the same evidence to
convict him of m

urder and c riminal a buse in the f irst d egree. 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 v. Commonwealth , 648 S.W.2d 853, 856 (Ky. 1983). The standard of review on a trial court’s denial of a CR 60.02 motion is whether the trial court
abused its discretion. Brown v. Commonwealth , 932 S.W.2d 359, 362 (Ky. 1996). “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) (citation omitted) . CR 60.02 is an extraordinary remedy that is “available only when a substantial miscarriage of justice will result from the effect of the final judgment.” Wilson v.
Commonwealth , 403 S.W.2d 710, 712 (Ky. 19 6 6).

RCr 11.42 is the only proper method of asserting a claim of
ineffective assistance. Gross , supra. Appellant previously prosecuted an RCr- 5

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11.42 motion in 2001 alleging ineffective assistance of counsel , which was denied by the Jefferson Circuit Court and subsequently affirmed by this Court

. 4

As to the Appellant’s claim of a Brady violation, the Jefferson Circuit Court correctly determined that Appellant’s trial counsel did receive the exculpatory evidence which Appellant claims was withheld. These documents include medical records, f amily c ourt records , and Cabinet for Health and Family
Services records

. 5

Finally , the proper procedure for raising a double jeopardy claim is via direct appeal. See Brewster v. Commonwealth , 723 S.W.2d 863, 865 (Ky. App. 1986). Appellant’s double jeopardy claim should have been raised, if at all, by way of his direct appeal to the Kentucky Supreme Court in 1998. The facts and law supporting a claim of double jeopardy, if any, were known or should have
been know whe n the direct appeal was prosecuted. CONCLUSION Grounds of error which can be raised by way of direct appeal or RCr 11.42, i.e., the double jeopardy and ineffective assistance of counsel claims, cannot be raised via CR 60.02. Appellant’s claim of a Brady violation is refuted by the

4 Davis v. Commonwealth , No. 2001

- CA

- 002682

- MR , 2004 WL 67643 (Ky. App. Jan

. 16, 2004) and Davis v. Commonwealth , No. 2010

- CA

- 002170

- MR, 2012 WL 4208915 (Ky. App. Sep

. 21, 2012).

5 Transcript of Record at pp. 891, 968 , and 980

- 82.- 6

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record. The Jefferson Circuit Court properly so concluded, and this conclusion is supported by the record and the law. A s such , the circuit court’s decision was not arbitrary, unreasonable, unfair, nor unsupported by sound le gal principles. W e find no abuse of discretion. For these reasons, we affirm the opinion and order of the
Jefferson Circuit Court.

ALL CONCUR

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BRIEF S FOR APPELLANT: Sherman Dejuan Davis, pro se Burgin, Kentucky BRIEF FOR APPELLEE : Daniel Cameron Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky