APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN GRISE, JUDGE
COUNSEL FOR APPELLANT: Katherine Blair Department of Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Jeffrey Allan Cross Assistant Attorney General.
Warren County jury found William Harry Meece guilty of Murder
(three counts); Burglary, first degree; and Robbery, first
degree. The jury determined beyond a reasonable doubt that
aggravating circumstances existed in each of the three
murders and thereafter fixed Meece's punishment at death.
This Court affirmed the Warren Circuit Court's judgment
on direct appeal. Meece filed a pro se Kentucky Rule
of Civil Procedure (CR) 60.02 motion, which was supplemented
by defense counsel, that the circuit court denied. Prior to
the ruling on his CR 60.02 motion, but after filing the
motion, Meece also filed a motion under Kentucky Rule of
Criminal Procedure (RCr) 11.42. His RCr 11.42 motion is still
pending in circuit court. Having reviewed the arguments of
the parties, we affirm the trial court's order denying
Meece's CR 60.02 motion.
Court previously and extensively reviewed the record in this
case on ' direct appeal. See Meece v.
Commonwealth, 348 S.W.3d 627 (Ky. 2011). We refrain from
unnecessarily repeating ourselves here and limit the
background to the facts and procedural history that are
relevant to this CR 60.02 appeal.
February 26, 1993, Meece, at the urging of Meg Wellnitz
(Wellnitz), shot and killed Wellnitz's father, mother,
and brother in their Adair County home. In February of 2003,
a grand jury returned indictments against Meece and Wellnitz
for Burglary, Robbery, and three counts of Murder.
2004, Meece entered into plea discussions with the
Commonwealth, and the parties reached an agreement. Meece
gave two recorded statements in compliance with the
agreement, confessing to all three murders and providing
details as to how Wellnitz commissioned him to commit the
crimes and how he did so. Wellnitz also entered a guilty plea
and gave a recorded statement. Although her statement was
inconsistent with Meece's in some details, the parties
agreed that Meece had given Wellnitz money to purchase a
Browning Hi-Power 9mm gun for Meece; Wellnitz used a fake ID
to make that purchase; and Meece used that gun to kill the
moved the court to withdraw his guilty plea, which the court
granted. Wellnitz proceeded with her guilty plea and was
sentenced in accordance with her agreement with the
Commonwealth. The court once again set Meece's case
for trial, and on September 18, 2006, the jury returned a
verdict of guilty on all counts and subsequently recommended
a sentence of death.
previously stated, this Court has already reviewed this case
on direct appeal and affirmed Meece's conviction and
sentence. We now address Meece's CR 60.02 motion, setting
forth additional background as necessary.
STANDARD OF REVIEW
a Defendant is entitled to the extraordinary relief provided
by CR 60.02 is a matter left to the "sound discretion of
the court and the exercise of that discretion will not be
disturbed on appeal except for abuse." Brown v.
Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (quoting
Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky.
1959)). "The test for abuse of discretion is whether the
trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles."
Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky.
2014) (citing Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (internal citations omitted)).
original CR 60.02 motion set forth numerous grounds for
relief. However, on appeal, the issues are more limited.
Meece argues two broad grounds for relief: (1) several of the
Commonwealth's witnesses gave perjured testimony, leading
to a deprivation of his constitutional rights; and (2) the
prosecutor committed fraud upon the Court, also leading to a
violation of Meece's constitutional rights.
The purpose of CR 60.02 relief.
60.02 allows appeals based upon claims of error 'that
were unknown and could not have been known to the moving
party by exercise of reasonable diligence and in time to have
been otherwise presented to the court."' Sanders
v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting
Young v. Edward Technology Group, Inc., 918 S.W.2d
229, 231 (Ky. App. 1995)). The rule provides an extraordinary
form of relief, and "is not intended as merely an
additional opportunity to raise claims which could and should
have been raised in prior proceedings[.]"
Sanders, 339 S.W.3d at 437.
has long been the policy of this court that errors occurring
during the trial should be corrected on direct
appeal, and the grounds set forth under the various
subsections of CR 60.02 deal with extraordinary
situations which do not as a rule appear during the process
of a trial." Gross v. Commonwealth, 648 S.W.2d
853, 856 (Ky. 1983) (quoting Howard v. Commonwealth,
364 S.W.2d 809, 810 (Ky. 1963) (emphasis added)). As such,
"[t]he movant must demonstrate why he is entitled to
this special, extraordinary relief." Gross, 648
S.W.2d at 856. The relief is extreme, limited, and. reserved
for those times when justice itself requires an avenue for
the plight endured by the aggrieved party. See id.
60.02 is not intended to provide relief for grounds
that could be attacked through direct appeals or collateral
motions such as grounds under RCr 11.42. "[CR 60.02] is
for relief that is not available by direct appeal and not
available under RCr 11.42." Gross, 648 S.W.2d
at 856. This Court has required that "a defendant
aggrieved by a judgment in a criminal case" must first
"directly appeal that judgment, stating every ground of
error which it is reasonable to expect that he or his counsel
is aware of when the appeal is taken." Id. at
857. Then, the "defendant is required to avail himself
of RCr 11.42 ... as to any ground of which he is aware, or
should be aware ... ". Id. Only after these
avenues are exhausted can a defendant claim grounds for CR
60.02 relief. And the defendant cannot raise the same grounds
as those for which he claimed, or should have claimed, relief
on direct appeal or pursuant to RCr 11.42. See id.
"In summary, 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 v. Commonwealth, 948
S.W.2d 415, 416 (Ky. 1997).
Meece attempts to obfuscate and disguise most of his
arguments, there are four main areas for which he claims
relief: (1) Regina Meade perjured herself; (2) Dell Jones
perjured himself; (3) Leondus Patrick perjured himself; and
(4) the prosecutor, Brian Wright, committed fraud. At the
outset, we must state that Meece has litigated, is currently
litigating, or should have litigated all of these claims for
relief. However, we address the merits of his arguments
Meece's claims of witnesses' perjury do not entitle
him to CR 60.02 relief.
correctly states that CR 60.02 allows a court to provide
relief from a judgment when there has been "perjury or
falsified evidence." CR 60.02(c). This Court has
previously addressed the issue of perjury as grounds for
relief under CR 60.02. See Commonwealth v.
Spaulding, 991 S.W.2d 651 (Ky. 1999). When a prosecutor
knowingly utilizes a material, false statement against the
defendant, he has committed prosecutorial misconduct through
the use of perjured testimony. Id. at 654 (quoting
United States v. Lochmondy, 890 F.2d 817, 822 (6th
Cir. 1989)). The "use of perjured testimony [without the
knowledge of the prosecutor] is treated like newly discovered
evidence for the purposes of CR 60.02."
Spaulding, 991 S.W.2d at 654.
criminal conviction based on perjured testimony can
be a reason of an extraordinary nature justifying relief
pursuant to CR 60.02(f) [.]" Id. at 657
(emphasis added). In such cases, "the burden remains on
the defendant to show both that a reasonable certainty exists
as to the falsity of the testimony and that the conviction
probably would not have resulted had the truth been known
before [the Defendant] can be entitled to [CR 60.02]
relief." Id. According to Kentucky Revised
Statute (KRS) 523.020, a person commits perjury "when he
makes a material false statement, which he does not believe,
in any official proceeding under an oath required or
authorized by law." So, to justify relief, Meece must
first show a reasonable certainty that Meade, Jones, or
Patrick made a material false statement, which he or she did
identifies Meade, Jones, and Patrick as witnesses he claims
gave perjured testimony at his trial. The alleged perjurous
testimony from each witness is described and addressed below.
Meade was married to Meece from 1991 to 2000. The murders
occurred in 1993. While they were married, Meade did not
incriminate Meece in any way for the murders of the Wellnitz
family. However, after their divorce, police approached her
again. This time, she told them about hearing Meece and
Wellnitz discussing their plot to kill the Wellnitz family
and what she had seen the night of the murders. It is
undisputed that the Commonwealth agreed not to prosecute
Meade for any of her potentially criminal involvement in
these activities in exchange for her truthful testimony.
However, at trial, when Meece's counsel questioned Meade
about this plea agreement, she did not disclose it.
Defense Counsel (DC)): Do you have any agreements with the
Commonwealth regarding your testimony here today?
Regina Meade (RM): No.
DC: There was never any agreement between you and the
Commonwealth that you would not be charged with any crime?
RM: Not to my knowledge.
DC: Not to your knowledge?
RM: Not that I remember.
DC: I take it that you've never been charged with any
See Meece, 348 S.W.3d at 679.
this exchange, counsel moved on to other subject areas.
Id. Meade mentioned through her testimony and
cross-examination that she met with the prosecutor and
detectives, but, again, counsel did not question her further
about any agreements that arose from this meeting. On
redirect, the prosecutor did not attempt to question Meade
any further about the plea agreement. Id.
Meade did ...