IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”

PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED: AUGUST 18, 2022 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0171-MR

DAVID SANDERS APPELLANT

ON APPEAL FROM MADISON CIRCUIT COURT V. HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 87-CR-00018

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING David Sanders appeals as a matter of right1 from the Madison Circuit Court’s order denying his motion to reopen his RCr2 11.42 proceeding pursuant to CR3 60.02(e) and (f) and RCr 10.02 and 10.06. On appeal, Sanders argues that this Court’s recent decision in Conley v. Commonwealth, 599 S.W.3d 756 (Ky. 2019), created a new entitlement for criminal defendants to funds for a mental health examination independent of that conducted by KCPC. Sanders argued in his prior appeals that he was entitled to an evaluation by a second, independent mental health expert. He now asserts that his claim should be reevaluated under the new rule announced in Conley.

We disagree, as Conley did not create a new rule, it merely clarified the existing language of KRS 31.185, which applies to indigent defendants and defense attorneys operating under Chapter 31 - the Department of Public Advocacy.

Since Sanders was not an indigent defendant, KRS 31.185 and Conley do not apply to his situation. Even if they did apply, Sanders received the assistance of an independent mental health expert who examined him and testified at trial in support of Sanders’ insanity defense. We have held already in Sanders’ prior appeals that his expert’s testimony, and defense counsel’s retention of the expert’s services, did not amount to error or ineffective assistance of counsel.

Accordingly, we affirm the trial court’s order denying Sanders’ CR 60.02 motion to reopen.

I. Background This case has been making its way through Kentucky courts for over thirty-five years and has been reviewed by this Court multiple times. Thus, we develop the facts and procedural history only to the extent necessary to resolve the issue at hand. In 1987, Sanders was convicted of two counts of first-degree robbery and two counts of capital murder for killing and robbing the proprietor of a convenience store and a customer who happened to be in the store. Each victim was shot once in the back of the head. At trial, Sanders was represented by private counsel, presented a single defense (insanity), and was evaluated by an independent mental health professional, who testified as to Sanders’ insanity at the time he committed the offenses.

Prior to Sanders’ trial, at defense counsel’s request, Sanders’ mental health and psychiatric condition were evaluated by the Kentucky Correctional Psychiatric Center (“KCPC”) to determine his competency to stand trial and whether he was insane at the time he committed the crimes. KCPC conducted a six-week psychiatric evaluation, with a team of social workers, psychologists, a psychiatrist, and a neurologist. Dr. Walker was the lead KCPC investigator and prepared a report summarizing the team’s collective findings that Sanders was competent to stand trial and did not suffer from a mental condition that compromised his ability to conform his behavior to the law. Dr. Walker testified as the Commonwealth’s rebuttal witness at trial.

Sanders’ counsel also retained Dr. Cooke, a clinical psychologist, to evaluate Sanders’ mental condition and serve as the defense mental health expert, on a pro bono basis. At trial, Dr. Cooke testified that Sanders satisfied the legal standards for insanity. However, based on the evidence presented, including Sanders’ own testimony, the jury found Sanders’ insanity defense unpersuasive and convicted him. Sanders received two death sentences for the murder convictions and two twenty-year sentences for the robbery convictions.

On direct appeal, this Court reviewed Sanders’ forty-one alleged errors, both preserved and unpreserved, and affirmed the convictions and sentences.

Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1990). In 1993, Sanders filed a collateral attack pursuant to RCr 11.42 seeking to vacate, set aside, or correct his sentence, alleging twenty-six errors, including the one he now raises in his motion to reopen: that his trial counsel was ineffective for failing to seek funds to retain an additional independent mental health expert. The trial court denied him RCr 11.42 relief, and this Court affirmed. Sanders v. Commonwealth, 89 S.W.3d 380 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Specifically, this Court found that Sanders’ counsel was not ineffective as Sanders had access to a qualified mental health expert to establish his insanity defense; the jury simply rejected the opinion of Dr. Cooke. 89 S.W.3d at 387–88. Further, this Court held that Sanders presented no evidence that the jury would have accepted a similar opinion from a different/additional expert, and that Sanders’ counsel effectively cross-examined the Commonwealth’s expert at trial. Id. In 2005, Sanders filed a motion to vacate his sentence pursuant to CR 60.02, essentially attempting to revive previously raised and resolved issues.

The trial court denied his motion, which this Court affirmed. Sanders v. Commonwealth, 339 S.W.3d 427 (Ky. 2011). In 2019, Sanders filed yet another motion to vacate his sentence pursuant CR 60.02, seeking to have his prior RCr 11.42 proceedings reopened in light of this Court’s decision in Conley.

Sanders claims that under Conley, his trial counsel was ineffective for allowing KCPC to evaluate him and for not obtaining another – or better – independent mental health expert. According to Sanders, the Conley decision disavowed the legal basis for this Court’s prior ruling rejecting this claim, thereby providing grounds for reopening his case.

The trial court denied Sanders’ motion to reopen, noting that his claim concerning his trial counsel’s performance had been fully litigated and determined by this Court not to have been in error or to have resulted in ineffective assistance of counsel. The trial court further noted that even if Sanders had received the assistance of an additional mental health expert, the jury may not have been persuaded by that expert’s testimony either. Sanders now appeals the trial court’s denial of his motion to reopen.

II. Standard of Review To be entitled to relief pursuant to CR 60.02, a movant must “affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.” Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (quoting McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997)). CR 60.02 is an extraordinary remedy and the standard for granting a motion is extremely high. Id. To reverse a lower court’s ruling on a CR 60.02 motion, the appellant must show some “flagrant miscarriage of justice.” Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).

Moreover, “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. Appellate courts review the denial of a CR 60.02 motion for an abuse of discretion.

Foley, 425 S.W.3d at 886. “The test for abuse of discretion is whether the trial

court’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.4 III. Analysis Sanders argues that under Conley, he was entitled to an additional independent mental health expert. He further contends that Conley created new law in this regard, which he asserts should apply retroactively to his case.

We disagree.

In Conley, this Court held that the trial court’s denial of an indigent defendant’s initial request for funding for an independent mental health expert, and instead ordering that a criminal responsibility examination be conducted by KCPC, violated the defendant’s constitutional right to the appointment of an independent mental health professional. 599 S.W.3d at 765. We stated that “if sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent mental health expert who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense.” Id. (quoting Binion v. Commonwealth, 891 S.W.2d 383, 385 (Ky. 1995), citing Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (holding indigents have a right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the same access to

– which governs the Department of Public Advocacy. Since Sanders was represented by private counsel, Conley is simply inapplicable.

With respect to the competency of Sanders’ counsel, we previously concluded that “Sanders had access to qualified mental health experts to establish his insanity defense. His complaints about ineffectiveness are without merit.” Sanders, 89 S.W.3d at 388. Indeed, we found nothing problematic in Dr. Cooke’s testimony, or Sanders’ counsel’s retention of his services, noting that “[t]he fact that an additional evaluation might be beneficial to the defense does not add credibility to his claim. . . . The jury rejected the opinion offered by Dr. Cooke and there is no reason to believe they would have accepted a similar opinion simply because it came from a different defense expert.” Id. Thus, we affirm the trial court’s ruling that Conley does not justify reopening Sanders’ case under CR 60.02. And as this Court has already resolved Sanders’ claims, we likewise agree with the trial court that Sanders is barred from further litigating this issue. See, e.g., St. Clair v. Commonwealth, 451 S.W.3d 597, 612 (Ky. 2014) (holding that “issues decided in earlier appeals should not be revisited in subsequent ones[]”) (quoting Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010) (stating that the law-of-the- case doctrine “refers to a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation[]”) (citation omitted)).

IV. Conclusion For the foregoing reasons, we affirm the order of the Madison Circuit Court denying Sanders’ CR 60.02 motion to reopen.

All sitting. All concur.

COUNSEL FOR APPELLANT: David Michael Barron Kentucky Department of Public Advocacy

COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Stephanie Lynne McKeehan Assistant Attorney General