        LM-PORTANTNOTICE
       NOT TO BE PUBLISHED OPINION




THIS OPINION IS             DESIGNATED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIA, PROCED URE PROMUL GA TED BY THE
SUPREME COURT.9 CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COUR T OF THIS STA TE.
                                                                  RENDERED : MAY 18, 2006
                                                                    NOT TO BE PUBLISHED


                 'Suproutf evuli of ~!~nf4t:,
                                      2005-SC-0889-MR


RALPH STEPHENS BAZE, JR.



                           APPEAL FROM ROWAN CIRCUIT COURT
V.                         HONORABLE WILLIAM B. MAINS, JUDGE
                                     1993-CR-00001




COMMONWEALTH OF KENTUCKY                                                            APPELLEE


                        MEMORANDUM OPINION OF THE COURT

                                         AFFIRMING

       This appeal is from a ruling by the circuit judge denying relief pursuant to CR

60.02 . Baze raises essentially only one issue. He argues that the meaning of the word

"conviction" is the same whether used as aggravation or mitigation ; that due process

requires that when non-final convictions are admissible as aggravation it applies to non-

final convictions offered as mitigation ; that it was error for the circuit judge to rely on

Thompson v. Commonwealth, 862 S .W .2d 877 (Ky. 1993), because that case was

expressly overruled by St. Clair v. Commonwealth , 140 S.W .3d 510 (Ky. 2004) and that

the inability to present a 21-year federal sentence as mitigation effected the death

sentence.

       Baze was convicted of the murder of a sheriff and his deputy. He was

sentenced to death and that sentence was affirmed on direct appeal . Baze v.
 Commonwealth , 965 S .W.2d 817 (Ky. 1997) . We then denied relief in his first RCr

 11 .42 action . Baze v. Commonwealth , 23 S.W.3d 619 (Ky. 2000). A second RCr 11 .42

 based appeal is being rendered today as is an additional CR 60 .02 action .

       Baze presents a single issue pursuant to CR 60.02 review in this case. He

argues that the word "convictions" as used in KRS 532.025(1) should have been

interpreted to allow him to present a non-final prior conviction as evidence of mitigation .

The trial judge relied on Thompson v. Commonwealth , 862 S .W.2d 871 (Ky. 1993) and

denied the admission of the requested evidence in mitigation . We have recently

specifically overruled Thompson in St. Clair v. Commonwealth , 140 S .W .3d 510 (Ky.

2004). We affirm because there was no error, and if any, it was indeed harmless .

       This matter is reviewed as a question of law de novo. It involves whether the

decision in St. Clair, supra , regarding a non-final conviction should apply to mitigation

as well as to aggravation evidence.

              I . SUCCESSIVE POST CONVICTION RELIEF REQUESTS

       Our rules have for a long time provided an organized and complete method of

review. The long standing policy provides that errors should first be presented on direct

appeal. See Howard v. Commonwealth , 364 S.W .2d 809, 810 (Ky. 1963) . RCr 11 .42

then provides a process to attack an erroneous judgment for reasons that are not

available on direct appeal. Gross v. Commonwealth , 648 S .W.2d 853 (Ky. 1983). RCr

11 .42 requires the consolidation of all issues that reasonably may be presented in that

proceeding . Multiple RCr 11 .42 requests should not be considered . Crick v.

Commonwealth , 550 S .W .2d 534 (Ky. 1977) .

      RCr 13.04 then allows application of the Civil Rules . CR 60.02 may then be

used to present any additional issues specifically not available through direct appeal or
RCr 11 .42 relief. CR 60.02 is intended to be used for and is limited to "special,

extraordinary relief' not available in any other form or at any other time . Gross v.

Commonwealth , supra .

       RCr 11 .42 is not intended to provide additional review of issues previously

presented on direct appeal . Final disposition or waiver of that motion shall conclude all

issues that reasonably could have been presented in that proceeding . Alvey v.

Commonwealth, 648 S.W.2d 858 (Ky.1983) . Disposition of a CR 60.02 motion must

consider the factors of the rule where this Court may but is not required to grant relief

from the judgment. Gross, supra. If any issue in a CR 60 .02 motion could have been

raised or should have been raised in previous actions, we refuse to grant relief. See

Copeland v. Commonwealth, 415 S .W.2d 842 (1967).

       CR 60.02 relief is discretionary and only intended for "special, extraordinary

relief." Gross, 648 S .W .2d at 856 . It was never meant to be used as just another

vehicle to revisit issues that should have been included or could have been included in

prior requests for relief.. Nor is it intended to be used as a method of gaining yet

another chance to relitigate previously determined issues . Prior decisions have

attempted to make this manifestly clear yet we are repeatedly asked to review RCr

11 .42 and CR 60.02 matters that are a clear violation of the rules. See Gross, supra.

       In such matters, follow the rules . Present appropriate issues in an appropriate

manner at an appropriate time . Do not hold back issues in reserve expecting to be able

to present them as a potential future defense. A piecemeal attack of a judgment is not

acceptable . All counsel are well advised to no longer ignore that position in the future .
                                    II . MITIGATION EVIDENCE

        Baze seeks to have this Court define the word "conviction" so that it would allow

 presentation of non-final judgments as mitigation evidence . Admittedly, at first glance,

 it may seem absurd for a defendant to propose placing a prior conviction before a jury.

 The concept presented by counsel is however a potentially appropriate manner to

 defend against a common prosecution practice .

        A jury could be swayed to impose a lesser sentence if they know that a

defendant is already going to be serving a significant sentence for other crimes. The

difficulty with that argument however is whether a jury should be told and should be

allowed to believe that a sentence for a prior conviction has been imposed when that

judgment is not final and may in fact be overturned. Is it proper for a jury to be told that

a defendant will first serve a specified term of imprisonment before commencing any

sentence for the subsequent conviction when, in fact, a pending or future appeal may

negate that prior conviction?

       We do not need to answer that question in the current case. The possible future

danger of Baze to society was a significant issue during the penalty phase of the trial.

The jury heard and was required to consider a potential sentence in the case that could

have made Baze parole eligible shortly after his sixtieth birthday. Baze's position on the

issue before us in the current CR 60.02 action is that had the jury been allowed to hear

the mitigation evidence of the non-final prior conviction, they would have been able to

consider that he would not become parole eligible until after his eightieth birthday. He

suggests that had the jury known this information they may have been inclined to select

a sentence less than death knowing that he would definitely remain incarcerated for at

least an additional 20 years .
        The jury was already presented with the option of choosing some sentence less

than the maximum . If the jury had been concerned that Baze might someday return to

society, they had the option of selecting a sentence of greatly enhanced parole

eligibility . That alternative was rejected with the sentence of death. There is no

compelling reason to believe that a difference in parole eligibility of 20 years would have

changed the jury decision when the sentence rejected an option that would have

resulted in an even longer sentence without the possibility of release . Because any

possible error regarding the admission of mitigation evidence would have had no effect

on the outcome and does not affect the substantial rights of a party, that error, if error at

all, is harmless . RCr 9.24.

        Baze received a fundamentally fair consideration . He was not deprived of any

State or Federal due process .

        The decision of the Circuit Court is affirmed .

        Scott, J ., not sitting. All others concur except Cooper, J., who concurs in result

only.
COUNSEL FOR APPELLANT :

Susan Jackson Balliet
Assistant Public Advocate

David M. Barron
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General of Kentucky

David A. Smith
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
