RENDERED: JANUARY 29, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1616-MR
THOMAS R. ELZA, JR. APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 03-CR-00251
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
DIXON, JUDGE: Thomas R. Elza, Jr., pro se, appeals the order denying his
motion for new trial due to substantial error under CR1 61.02, entered by the Laurel
Circuit Court on October 1, 2019. Following a careful review, we affirm.
1
Kentucky Rules of Civil Procedure.
FACTS AND PROCEDURAL BACKGROUND
On July 1, 2005, Elza pled guilty to murder and burglary in the first
degree. The underlying facts concerning his plea were summarized in
Commonwealth v. Elza, 284 S.W.3d 118 (Ky. 2009). Rather than recount the
salacious details, we choose to adopt the statement of those facts and include only
the facts pertinent to the appeal herein. That appeal concerned the denial of Elza’s
March 10, 2006, RCr2 11.42 motion to vacate the judgment entered August 1,
2005. Therein, Elza claimed he received ineffective assistance of counsel because
defense counsel pressured him to take the plea offer rather than pursue an
intoxication defense at trial. Elza admits he raised the issues of his October 29,
2003, medical evaluation by Dr. Steven J. Simon, as well as his June 29, 2005,
medical evaluation by Dr. E. Don Nelson, during that appeal. That panel of our
Court remanded for an evidentiary hearing but was reversed and the judgment
reinstated on discretionary review. The Court ultimately held Elza’s guilty plea
was voluntary and valid; his intoxication defense had little chance of success, so he
was not prejudiced by counsel’s recommendation that he plead guilty; his
attorney’s advice to accept the plea bargain was reasonable and not ineffective
assistance of counsel; and Elza was not entitled to a hearing on his motion.
2
Kentucky Rules of Criminal Procedure.
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Six years later, on April 6, 2015, Elza moved the trial court, pursuant
to CR 60.02, to vacate the judgment based on “newly discovered evidence.” Elza
asserted he did not learn until December 8, 2014, when he reviewed his
Department of Public Advocacy file, that his trial counsel failed to inform him of
the existence of certain expert opinions demonstrating that he was mentally ill—
namely, Dr. Simon’s report of May 9, 2005, and Dr. David L. Finke’s report dated
March 24, 2005. Elza appealed the trial court’s denial of his CR 60.02 motion
arguing the denial of relief constituted an abuse of discretion resulting in a
fundamental miscarriage of justice. Another panel of our Court found no error and
affirmed the judgment in Elza v. Commonwealth, No. 2015-CA-000796-MR, 2017
WL 1102989 (Ky. App. Mar. 24, 2017). A few months later, on July 17, 2017,
Elza moved the trial court to vacate the judgment and sentence under CR 60.02(f)
for “any other reason of an extraordinary nature justifying relief[.]” In that motion,
Elza again claimed he was unaware of certain expert opinions—the medical
evaluations of Dr. Nelson, Dr. Simon, and Dr. Finke—at the time of his guilty
plea. That motion was denied by the trial court on July 25, 2017.
Two years later, on June 20, 2019, Elza moved the trial court for a
new trial pursuant to CR 61.02, alleging substantial, palpable error. The primary
basis for Elza’s motion is that he was unaware of two of the reports by experts
previously discussed herein at the time he pled guilty. The same was denied by the
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trial court as raising only issues that had been—or should have been—raised in a
prior appeal. Specifically, the trial court stated in its order:
it appears that the Movant is again claiming grievance
over three expert reports that Movant claims support his
claimed defense of intoxication and criminal
responsibility. The reports are from two defense experts,
Dr. David Finke and Dr. E. Don Nelson, and from Dr.
Steven Simon from KCPC. The Court will first note that
these reports were in issue and were fully discussed and
analyzed in the appeal of Elza v. Commonwealth, No.
2015-CA-000796-MR. The issues raised in Movant’s
present motion are the same issues raised in the aforesaid
appeal.
The Court must also again point out that the issue of
mental evaluation reports was even discussed in
Commonwealth v. Elza, 284 S.W.3d 118 (Ky. 2009),
wherein the Kentucky Supreme Court reversed the Court
of Appeals who had reversed the trial court’s denial of
RCr 11.42 relief without a hearing. It is clear from
reading that opinion that Elza knew about the KCPC
evaluation and at least one defense mental evaluation
report as far back as his original appeal.
The Movant has raised no allegations in his current
motion that have not been raised, or should have been
raised previously. The Court finds no basis in fact or law
to support relief pursuant to CR 61.02.
This appeal followed.
ANALYSIS
In Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009), the Court
discussed the palpable error rule of RCr 10.26, stating:
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an unpreserved error may be noticed on appeal only if the
error is “palpable” and “affects the substantial rights of a
party,” and even then relief is appropriate only “upon a
determination that manifest injustice has resulted from
the error.” An error is “palpable,” we have explained,
only if it is clear or plain under current law, Brewer v.
Commonwealth, 206 S.W.3d 343 (Ky. 2006), and in
general a palpable error “affects the substantial rights of a
party” only if “it is more likely than ordinary error to
have affected the judgment.” Ernst v. Commonwealth,
160 S.W.3d 744, 762 (Ky. 2005). But see United States
v. Olano, 507 U.S. at 735, 113 S.Ct. 1770 (discussing the
federal “plain error” standard and noting, without
deciding, that there may be forfeited errors so
fundamental that they “can be corrected regardless of
their effect on the outcome.”). An unpreserved error that
is both palpable and prejudicial still does not justify relief
unless the reviewing court further determines that it has
resulted in a manifest injustice, unless, in other words,
the error so seriously affected the fairness, integrity, or
public reputation of the proceeding as to be “shocking or
jurisprudentially intolerable.” Martin v. Commonwealth,
207 S.W.3d 1, 4 (Ky. 2006).
Id. at 668. Although Jones involved an interpretation of palpable error under the
criminal rules, the language in CR 61.02 is identical. As such, cases involving RCr
10.26 are relevant in analyzing CR 61.02.
Under the clear holding of Jones, palpable error relief is not available
unless three conditions are present. The error must have: (1) been clear or plain
under existing law, (2) been more likely than ordinary error to have affected the
judgment, and (3) so seriously affected the fairness, integrity, or public reputation
of the proceeding to have been jurisdictionally intolerable. In this case, the trial
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court’s ruling was not a clear or plain error for the reasons discussed herein; thus,
relief was properly denied.
We further note CR 61.02 and RCr 10.26 are not mechanisms for
obtaining post-conviction relief. Rather, those rules allow palpable error that was
insufficiently raised or preserved to serve as grounds for relief in a motion for a
new trial filed pursuant to RCr 10.06. RCr 10.06(1) provides, “The motion for a
new trial shall be served not later than five (5) days after return of the verdict. A
motion for a new trial based upon the ground of newly discovered evidence shall
be made within one (1) year after the entry of the judgment or at a later time if the
court for good cause so permits.” Here, the judgment was entered August 1, 2005,
and the instant motion was not filed until June 20, 2019—over a dozen years too
late. Since Elza’s time for filing an RCr 10.06 motion for a new trial passed long
before he filed this motion, his motion for a new trial was untimely and could have
been denied by the trial court for this reason alone.
Furthermore, Elza’s attempt to obtain relief in this fashion was not
allowed by the rules governing post-conviction relief. In Gross v. Commonwealth,
648 S.W.2d 853, 856 (Ky. 1983), the Court stated, “The structure provided in
Kentucky for attacking the final judgment of a trial court in criminal cases 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.”
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As Elza has utilized post-conviction attacks by direct appeal, via RCr 11.42 and
CR 60.02, his belated attempt to obtain a new trial in the manner he employed was
improper.
Even if Elza’s motion is treated as one under CR 60.02, he would not
have been entitled to relief because the grounds asserted were grounds that were or
could have been raised in his direct appeal through his RCr 11.42 motion or in his
prior CR 60.02 motions. Thus, he is precluded from raising them in this manner.
See Gross, 648 S.W.2d at 856.
CONCLUSION
Therefore, and for the forgoing reasons, the order entered by the
Laurel Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Thomas R. Elza, Jr., pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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