                                           RENDERED: SEPTEMBER 28, 2017
                                                       TO BE PUBLISHED

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                              2016-SC-000326-MR


WILLIAM HARRY MEECE                                                      APPELLANT


                 ON APPEAL FROM WARREN CIRCUIT COURT
v.                   HONORABLE JOHN GRISE, JUDGE
                            NO. 06-CR-00656


COMMONWEALTH OF KENTUCKY                                                 ·APPELLEE



               OPINION OF THE COURT BY JUSTICE KELLER

                                  AFFIRMING

      A 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 C~vil Procedure (CR) 60.02 motion, which was

supplemented by defense counsel, that the circuit court deni~. Prior to the

ruling on his CR 60.02 motion, but after filing the   ~otion,   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.

                               I.        BACKGROUND

      This 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.

      On 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.

      In 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 Wellnitzes.

      Meece moved the court to withdraw his guilty plea, which the court

granted. Wellnitz proceeded with her guilty plea and was sentenced in




                                          2
accordance with her agreement with the Commonwealth. 1 . The court once

again set Meece's case for trial, and Of1: September 18, 2006, the jury returned

a verdict of guilty on all counts and subsequently recommended a sentence of

death.

      As 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.

                            II.    STANDARD OF REVIEW

         Whether a Defendant is pntitled tffthe 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 prinGiples." 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)). ,

                                    III.   ANALYSIS

         Meece's ori'ginal 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



       While serving her sentence,.Wellnitz was found in her cell in 2014, dead from
         i
apparent suicide.
                                           3
                                                                                    /



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.
1




A.    The purpose of CR 60. 02 relief.

      "CR 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. m 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. ·

      "It 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 extraordin:ary 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
                                 /

dempnstrate 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.




                                        4
           CR. 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. Theh, 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 bn 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 iss1ies which cannot be n:tised in other proceedings." McQueen v.

     Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).

           Although 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 below.

                                              5
B.    Meece's claims of witnesses' perjury do not entitle him to CR 60.02
      relief.

      Meece 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 .
     •
      "[A] 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 beerf

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 not believe.


                                        6
       Meece 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.

1. · Regina Meade.

       Regina 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       , r

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 crimes then?
                                       7
              RM:                          Nope.

        See Meece, 348 S.W.3d at 679.

              After 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.

        Regina Meade did not commit perjury.

              It is undisputed that Meade failed to state on cross-examination that she

        had made an agreement with the prosecution in exchange for her truthful

        testimony at trial. This testimony, then, was false. Additionally, it was

        material as it went to the credibility of her testimony. However, we cannot say

        with reasonable certainty that it was testimony she did not believe to be true.

        Meade stated that there was no agreement she remembered or knew of, but

        admitted that she had never been prosecuted. Additionally,    sh~   spoke during

        cross-examination about a meeting between her and the prosecution team.
    (

        Defense counsel did not question her about the terms of this meeting. We

        cannot with reasonable certainty say that she believed her statements to be

        false, especially considering what she admitted about her communications with

        the prosecution. We cannot then say that the-trial court's decision was

        arbitrary or unsupported by legal principles; thus, the trial court did not abuse

        its discretion in holding likewise.

                                      ',           8
Meece has already litigated this issue.

       Despite Meece's attempts to repackage his argument regarding Meade's

testimony, we addressed this issue on direct appeal. "Meece argue[d] that his

Due Process rights were violated by the prosecution's failure to correct Meade's

testimony in regard to any agreements she had with the Commonwealth

concerning her testimony. Meece further argue[d] that her testimony was

perjurous and this was known to the Commonwealth." Meece, 348 S.W.3d at

676. In addressing this issue, we held that "whether the misstatement by
   i


Meade was intentional or innocent under the circumstances, given that no

explanation for [defense   counsel'~]   failure to impeach Meade is given or

apparent ... , one may.only conclude that the failure to impeach Meade upon

this allegedly false statement was strategic and tactical." Id. at 680.2 This

Court found that trial counsel either knew or should have known, based on the

record and the trial court's findings, about Meade's plea    agreemen~   with   th~.
                    )
Commonwealth. Id. As such,. this Court presumed the decision not to

impeach Meade further was tactical and any complaint as to this perjured

testimony w~s waived. See id. "[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.

Thus, this issue has been previously litigated and resolved and cannot be a

source of relief for this claim.



       Despite Meece's attempts to characterize this Court's Opinion as finding that
       2
Meade had perjured herself, we made no such finding. We only determined that
whether the statement was "intentional or innocent" was irrelevant given Meete's
knowledge of the plea agreement and ensuing failure to impeach on this issue.
                                            9
2.     Dell Jones.

       In 1993, during the course of the murder investigation, Dell Jones

attempted to conduct a polygraph examination of Meece. Id. at 668. When

Jones began questioning Meece about the Wellnitz murders, "Meece demanded

the polygraph cease." Id. at 687. Jones _stated that "from the time of Meece's

request to terminate the polygraph, and during the process of his

disconnecting the leads from Meece, their conversations dealt only with

paperwork ... (a second Miranda waiver), along with the nature of the actual

questions on the test ... ". Id. at 687-88. The t_rial court admitted Jones's

testimony over Meece's objection. Id. at 688. Aetrial, Jones provided an
                  .                   .
abbreviated testimony and stated that "at one point, [Meece said] that there

had been sixteen rounds fired." 3 Id. Later, Kentucky State Police (KSP) Det.

Wheat testified that he had not released the number of shots fired. Id.

Dell Jones did not commit perjury.

       Meece's argument as to Dell Jones's alleged·perjury is based upon a
                               .                          --
distortion of facts: "Assuming [Dell's statement that Meece was free to leave]

was true, the form [Meece] signed would not have been a Miranda waiver of

rights, because he would not have been in custody." Meece argues that

because this Court termed the form he signed as a "Mirandd' waiver, he must

. have been in custody and thus, Dell Jories and the officers involved must have

lied about his ability to leave. To Meece, the conclusion is that Jones .
                                                                      {




       There were actually 17 shots fired, a contradiction which Meece also
       3

addressed in his statement to police when he confessed.
                                          10
committed perjury when he testified. that Meece was free to leave during his

questioning.

      The determination of whether a suspect is in custody for Miranda

purposes is a legal determination requiring an examination of the totality of the

circumstances. Meece's argument presupposes that by signing a Miranda

waiver, the signer suddenly becomes "in custody." We cannot, and will not,

contradict well-established law by holding that a signature on such a form

creates, de facto, a finding that the signer was in custody.

      Meece has presented no evidence that Jones believed his statement, that

Meece was free to leave, was a lie. There is no evidence or even any allegation,
                                      I
other than Meece's confusion regarding Miranda law, that Jones's statement
         .                                     .
was false. Meece. has failed to prove with reasonable certainty that Jones made

a false statement. We see no reason to find the trial court abused its discretion

in holding that these claims of perjury were unfounded .

. Meece· has already litigated this issue.

      Meece claims that, had Jones told the truth, Meece's statements to him

would have been excluded because Meece was in custody arid the statements
                                  ;


were made involuntarily. _We recognize Meece's attempt here to use a claim of

perjury as an opportunity to relitigate the exclusion of his statements to Jones.

Meece argued to the trial court that the Miranda waiver he signed before Jones

began the polygraph was involuntary, and Meece sought to suppress the ·

statements he made to Jones. The trial court overruled the motion. Meece

also addressed the issue in his appeal to this Court. This Court upheld the

                                          11
trial court's admission of the statements. See Meece,
                             }                   .    348 S.W.3d at 688. On

appeal, we held that "his argument that he was deceived as to the nature of the

test is unavailing." Id.

       Although he argues now that Jones perjured himself, this alleged perjury

involves whether Meece was free to go, which Meece argues, in turn, affects

whether his Miranda waiver was valid. Meece restates this claim as an

allegation of perjury but it is only an attempt to camouflage his real contention:

that he was not free to go and his statements were involuntary. We are not

distracted from the truth, however, that this issue, like Meece's argument as to

Meade's testimony, has been previously litigated and CR 60.02 cannot provide

a basis for relief on this issue   either~

3. -   Leondus Patrick III.

       Leondus Patrick III   wor~ed    at Sports Unlimited, the store where Meece

and Wellnitz purchased a Browning Hi-Power 9mm gun and ammunition, the

same month as the murders. Patrick testified that he had sold Meece two to

three boxes of hydra-shok ammunition along with the gun. On cross-

examination, Patrick testified that he thought another employee had sold

Meece 1,000 rounds of ammunition on a separate occasio_n. During the second

redirect examination, Patrick stated the 1,000 rounds were USA, full metal

jacket ammunition, which he described as a cheaper ammunition for target

shoo_ting which could be bought more affordably in larger supply at one time.




                                             12
                                                    ' .


     Patrick did not commit perjury.

             Meece contends that Patrick's testimony that Meece bought 1-,000

    ·rounds of ammunition "was false ... [because Meece], in fact, had purchased less

    · than half of that ammunition." Meece implies that Patrick's alleged perjury

     regarding the number of bullets purchased called into question his entire

     testimony, including his identification of Meece as being present at the

     purchase of the murder weapon. 4

             Once again, Meece argues that because he disagrees with the statements

     made by a witness, that witness has committed perjury. Meece alleges that

     Patrick's statement is false because he bought less ammunition than 1,000
      t

     rounds. However, he fails to allege or point to any reason for the trial court to

     find that Patrick intentionally gave a false statement believing it to be untrue.

    . As such, we cannot say that the trial court's decision was arbitrary or that the

     trial court abused its discretion in dismissing these claims of perjury.

     Meece should have raised.the issue on direct appeal and has already
     raised this issue in his RCr 11.42 motion.

             Meece has failed to identify any new   inform~tion   which was unknown at

     the time of trial or at the time of his appeal. Every "defendant is required to
                                                             )
\
     avail himself of RCr 11.42 ... as to any ground of which he is aware, or should

     be aware ... ". Gross, 648 S.W.2d at 857. Meece argued that Patrick lied about

     the number of rounds Meece had purchased; but Meece was present for the

     purchase in question. Thus, Meece was in the perfect position to attack this


            Meece admitted to being present at the purchase of the gun, both in his
          ·,- 4
     recorded statement and at trial, and admitted to buying 11 total boxes of ammunition. ·
                                              13
statement and did refute Patrick's testimony during his own testimony to the

jury. CR 60.02 is an improper avenue to address the issues raised about

Patrick.· Additionally, Meece has raised this issue in his RCr 11.42 motion,

which has yet to be reS-olved.

4. . Even if these three witnesses committed perjury, there is no
     reasonable certainty that the result would have. been different.

      A defendant alleging perjury under CR 60.02 must not only show a

reasonable certainty that the testimony was false but must also show a

reasonable certainty "that the conviction probably would not have resulted had

the truth been known ... ". Spaulding, 991 S.W.2d at 657. Meece must also

show with reasonable certainty that his conviction would not have occurred

but for this allegedly perjured testimony. We hold that no such reasonable

certainty has been shown.

      The Commonwealth presented a mountain of evidence against Meece,

including his recorded statements in which he confessed to the murders in

graphic detail. If we accept Meece's argument as true, then the jury would

have had three variations in the testimony before it: (1) the jury would have

known of Meade's agreement with the Commonwealth; (2) Meece's statement to

Dell Jones about the "16 rounds" likely would not have been admitted; and (3)

the jury would have known Meece had bought only about 500 rounds of

ammunition, rather than 1,000. Given Meece's two statements, coupled with

the corroborating evidence admitted at trial (including the testimony of his co-

defendant), we cannot conclude that the jury would have reached a different

result "had the truth been known." We hold that Meece failed to show a
                                       14
reasonable certainty that any perjury, even if it was proven, would have

changed the outcome of his trial.

C.    The allegations of fraud .

      .Meece's argument as to the prosecutor's fraud in this case is,

unfortunately, confusing and unclear. However, it appears Meece's claim is

that Brian Wright, the lead prosecutor at trial against Meece, committed fraud

by: (1) misrepresenting the terms of Meece's plea agreement; (2) allowing Meece

to misrepresent the terms of his agreement to the Court during the plea

colloquy; (3) reiterating this misrepresentation ·.cturing Mee.ce's cross-

examination and during the Commonwealth's closing argument; and (4) lying

to the Court about the terms of the plea agreements with Meece, Wellnitz, and

Meade. Most of Meece.'s argument stems from Meece's and Wright's

fundamental disagreement as to what the terms of Meece's plea agreement

were. To clarify Meece's argument, we have separated his claims into the

above-described segments, which we address below ..

1.    Fraud under CR 60.02.

      For fraud to create a mechanism of relief under CR 60.02, there must be

"extrinsic fraud or 'fraud upon the court."' Goldsmith v. Fifth Third Bank, 297

S.W.3d 898, 904 (Ky. App. 2009) (emphasis original) (quoting Rasnick v.

Rasnick, 982 S.W.2d 218, 219-20 (Ky. App. 1998)). The fraud described under

CR 60.02 is a "species of fraud which does or attempts to subvert the integrity

of the court itself." Goldsmith, 297 S.W.3d at 904 (quoting Rasnick, 982

S.W.2d at 219-20 (internal citations omitted)). This "fraud has been construed

                                         15
    · to include only the most egregious conduct, such as bribery of a judge or a

    member of the jury, evidence fabrication, and improper attempts to influence

    the court by counsel." Goldsmith, 297 S.W.3d at 904 (quoting Rasnick, 982

    S.W.2d at 219-20). "[F]raudbetween the parties, without more, does.not rise to
                                         J
    the level of fraud upon the court." Goldsmith, 297 S.W.3d at 904 (quoting

    Rasnick, 982 S.W.2d at 219-20) ..

            The fraud covered by CR 60.02. is generally "fraudulent conduct outside

    of the trial which is practiced upon the court, or upon the defeated party, in

    ~-qch   a manner that [the defeated party] is prevented from appearing or

    presenting fully and fairly his side of the case." McMurry v. McMurry, 957

    S.W.2d 731, 733 (Ky. App. 1997) (quoting W. Bertelsman and K. Phillipps,

    Kentucky Practice CR 60.02, cmt. 6, at 426 (4th ed. 1984)).' The important

    matter here is that the party victimized by the fraud was. unable to adequately

    defend himself. See id.

            Tb grant relief due to fraud, two prongs must be met: "(1) fraud and

    circumvention of the prevailing party which prevented a defense being

    presented, arid (2) that the defendant had and has a meritorious defense to the

    action." Mauldin v. Bearden, 293 S.W.3d 392, 397 (Ky. 2009) (emphasis

    removed) (quoting Rice v. Dowell, 322 S.W.20. 468 (Ky. 1959) (internal citations

    omitted)). Thus, simply alleging fraud is insufficient. The movant must also

\   show that there was a "valid defense" he was prevented from presenting due to

    _the alleged fraud. Mauldin; 293 S.W.3d at 397-98 (citing Dawson v. Clelland,

    252 S.W.2d 694 (Ky, 1952) and Overstreet v. Grinstead's Adm'r, .140 S.W.2d

                                             16
836 (Ky. 1940)). In order to prevail in his motion, Meece must show that this

fraud was present and that it hindered his "meritorious" defense.

2.    None of Wright's conduct in describing Meece's plea agreement
      constitutes fraud.

      Most of Meece's arguments about Wright's alleged fraud flow from a basic

disagreement as to the terms of Meece's original plea agreement. Due to this

disagreement, Meece now argues that any references Wright made to this plea

agreement were fra;idulent as Wright misrepresented the terms of the

agreement. Meece claims that these references. occurred in multiple

circumstances, each of which we-will describe below. But, to fully articulate

Meece's argument, we must understand the context created by the plea

agreement itself.

      Meece contends that Wright guaranteed Meece an "extended" visit with

his children as a condition of his plea agreement. Wright stated that there was

no such guarantee, merely a statement that he would not interfere with any

such visitation. Meece and Wright discussed Meece's visit with his children

during one of his :r:ecorded interviews. That interview was played to the jury at

trial. The parties stated:5

      Wright:       Bill, you still agree that you will testify in this case?

      Meece:        Uh, as long as everything goes the way it's supposed to
                    go.

      Wright:       What do you mean by that? I want to know on this
                    tape. On the visit.


       s This excerpt is taken from the transcript provided by Meece in his motion to
vacate convictions and sentences under RCr 11.42, RCr 10.02, and RCr 10.06.
                                          17
      Meece:        It is part of the agreement that I will get to have a [sic]
                    extended visit with my children. And that visit has
                    been scheduled to the best of my knowledge for the
                    21st of December and that as long as that visit goes off
                    without any hitch, (.background noise) my agreement to
                    testify in trial. ·

      Wright:       And the only obligation I made was that I would not do
                    anything to hinder that visit and at the beginning that
                    I would encourage your attorney.

      Meece:        You'd do lthe best you could to see that come to pass.

      Wright:       And I've done my- I've fulfilled my end; is that
                    correct?

      Meece:        Yes, to the best of my knowledge, you've fulfilled your
                                 6


      Now, we examine the instances in which Meece claims Wright

fraudulently misled the court or.jury    ~s   to this agreement.

The plea agreement itself.

      As a preliminary step to understanding and addressing Meece's claims of

fraud, we must first address this plea agreement and any promised visitation.
             \
It is clear to this Court from this transcript that Meece admitted there was no

such guaranteed visitation as a condition to his plea agreement. Meece stated

that he felt Wright had fulfilled any obligations he felt Wright had. We will not

assume that Wright misrepresented the terms of this agreement when Meece is

quoted as agreeing to the terms as Wright and the Commonwealth described.




      6 It is presumed that this blank represents an inaudible portion of the interview;
this portion has been copied exactly from Meece's motion to vacate as described in
footnote 5.
                                          18
This transcript clearly shows that the Commonwealth merely intended not to

prevent any visitation between Meece and his children. 7

       CR 60.02 fraud entails acting in a way to "subvert the integrity of the

court." See Goldsmith, 297 S.W.3d at 904 (quoting Rasnick, 982 S.W.2d at

219-20 (internal citations omitted)). What Meece has described is a

disagreement as to what was required by his plea agreement. Meece has failed

to show any intentional conduct on the part of the prosecutor to misrepresent

this plea agreement to the court and thereby subvert the integrity of the

judicial process. He has failed to allege or show that Wright misrepresented

the plea agreement at all; Meece simply disagrees with Wright's interpretation

of the agreement. Thus, Wright has not committed fraud upon the court.

Meece's plea colloquy.

       Meece does not define this instance of fraud specifically, but he described

his plea colloquy during his testimony and presented it as further proof of

Wright's fraud. Meece's allegations of fraud intertwine several instances

referring to his plea agreement, but we must unpackage each instance he

describes to accurately understand and address the merits of his argument.

       During his plea colloquy, Meece told the judge that the written plea

agreement was the only agreement he relied upon in entering his plea. He

stated that all the terms of the agreement were included in this written offer.

He now contends that his visit with his children was a term of the offer; that


       7 It should also be noted that Meece did, in fact, have a visit with his children
after he entered a guilty plea. Meece testified that he immediately filed his motion to
withdraw his guilty plea at the end of that visit.
                                            19
Wright intentionally failed to include it in the written agreement; and ,that

Wright allowed Meece to lie to the Court about a!l the terms of his agreement

being in the written offer. This, to Meece, constitutes fraud upon the Court.

      Once rnore, we look to the transcript we have quoted. Because we

disagree with Meece's interpretation of hjs plea agreement, we cannot agree
                                                                    \

that there was any fraud during Meece's plea colloquy. Wright did not include

the visit in the written plea agreement because he did not see it as a condition

of the offer. Thus, his failure to stipulate this condition during the plea

colloquy cannot constitute "fraud upon the court."

      We must also state that any fraud during the plea colloquy was on the

part of Meece·alone. He testified at trial that he never intended to follow

through with the plea agreement. This fact was further evidenced by his

immediate motion to withdraw his guilty plea after he had visitation with his

children. He entered the guilty plea, knowing he was lying to the court the

entire time. Thus, his allegations of fraud against Wright here cannot provide

him with a basis for relief.

Wright's cross-examination of Meece.

      Meece chose to testify at trial. During his testimony, he explained to the

jury that he and Wellnitz were not involved in the murders and were_, in fact,

studying the night of the murder. To enhance the credibility of his testimony,

Meece claimed that he used the discovery provided by the prosecution in his

case to develop his "story" about what happened to the Wellnitz fami}y.

Furthermore, Meece explained that he thought his staterrients after the guilty

                                        20
            I
plea wouid never be used against him and that he never intended to follow
                                                          '
through with the plea agreement. His whole purpose in entering a guilty plea

was to see his children. Finally, Meece testified that Wright promised him that,

as a condition of his guilty plea, he would have an "extended" visit with his

children. 8 On cross-examination, Wright questioned Meece as to the terms of

his plea agreement, contradicting him and asking whether the actual

agreement was that Wright would not interfere with any visitation with Meece's

children.

       Once again, the alleged fraud stemmed from Meece's interpretation of his

plea agreement. As can be seen in the transcript of the exchange between

Meece and Wright, Wright intended only to abstain from interfering with any

visitation between Meece and his children and felt that he had fulfilled this

promise. As such, it was not fraudulent for Wright to cross-examine Meece

about Meece's mistaken interpretation of the agreement.

Wright's closing argument.

       During closing argument, Wright brought out a transcript of the

·interview we previously described. In his brief, Meece quotes what he deems

the relevant portion of this closing argument:
                  )




       s During his testimony, Meece referenced a fax between Meade's attorney
(Meade is the mother of Meece's children) and Wright, in which Meade's attorney told
Wright that Meade would allow the visit between Meece and his children if Meece
entered a guilty plea. Meece believes this fax to be proof of Wright's fraud. However,
even in the light most favorable to Meece, this fax merely shows Wright's knowledge of
an agreement to allow this visitation on .Meade's part. It exhibits Wright's agreement
not to hinder or interfere with any visitation; at most, it shows Wright's intent to act as
a mediator between the parties in scheduling the visitation. It does not prove Wright
guaranteed the described visitation as a term of Meece's plea agreement.
                                            21
                    The only obligationJ made was to do nothing to hinder the
                    agreement. He told you he had a private attorney in
                    Lexington. Regina had a private attorney. I had no
                    involvement in that. I said the Commonwealth fulfilled its
                    end ... To come up here and imply we did something wrong.
                    There is no proof. It doesn't exist.
                                             .   )



           Meece seems to believe that Wright's statements were not only a

    misrepresentation of the truth but that Wright also improperly testified to the

    jury about the plea agreement. We cannot conclude that the described

    statements were fraudulent. Wright properly referred to an interview already in

    evidence. As admitted evidence, Wright was free to reference the statement

    during closing argument. See Tamme v. Commonwealth, 973 S.W.2d 13, 39
                                                      .   .
    (Ky. 1998). Any statements as to Wright's understanding of this agreement are

    not even close to what this Court has considered fraud upon the Court under

    CR 60.02; as we stated, such "fraud has been construed to include only the

    most egregious con'ciuct, such as bribery of a judge or a member of the jury,

    evidence fabrication, and improper attempts to influence the court by counsel."

    Goldsmith, 297 S.W.3d at 904 (quoting Rasnick, 982 S.W.2d at 219-20).

L   Considering we have already     ~tated   that Wright clearly intended only to refrain
                                                                                  I

    from interfering with Meece's visit with his children, no such fraud exists here.

    3.     None of Wright's conduct in presenting witnesses' testimony
           constitutes fraud.

           Th~   last portion of Wright's conduct that Meece attacks is his

    . explanation   of the terms of the Commonwealth's plea agreements with
                         \                                             .    Meece,

    Wellnitz; and Meade. The Commonwealth repeatedly told the trial court and, in

    some instances, the jury, that a condition of these       pl~a   agreements was that

                                                 22
each witness testify truthfully at trial. Meece appears to claim that, due to the

inconsistendes of each witness's (Meece, Wellnitz, and Meade) description of

the murders, some or all of them must be lying .. Therefore, Meece appears to

assume that Wright fraudulently lied to the trial court about the requirement of

 truthfulness for each of these plea agreements.

       We are unpersuaded by Meece's claims here. We understand Meece to

 argue that inconsistencies in his, WellnitZ's, and Meade's testimony require the

conclusion that some or all of ther:p. lied at trial and that Wright knew of these

inconsistencies and thus understood that the witnesses were lying. Meece

 then seems to claim that, because Wright followed through with the plea

agreements for Wellnitz and Meade, he fraudulently lied to the Court about the

 requirement of truthfulness. We certainly cannot conclude that this argument

. entitles Meece to CR 60.02 relief; nor can we conclude that Meece's argument

even logically follows established law.

       Meece's argument is based on three unproven, false premises. First,

 Meece assumes that one, if not all, of the witnesses intentionally lied. This trial ·

occurred thirteen years after the murders, and we cannot assume that every

 single discrepancy is an intentional lie or perjury. Memories alter and that is

why we place value in a jury's truth-finding ability. The jury heard all the

evidence, even the inconsistent evidence, and deemed Meece's evidence less

credible than the prosecution's.

       Second, Meece assumes that the Commonwealth cannot continue with a

plea agreement if the agreement is not followed exactly, with every single term

                                          23
 performed perfectly. This Court is unwilling to dictate what the

 Commonwealth must or must not do with its plea agreements. If the

 Commonwealth determines it is more appropriate to continue with the terms of

 a plea agreement, even if a Defendant fails to fulfill all of his or her obligations,

 that is the Commonwealth's prerogative.

       Finally, Meece assumes that Wright's statement must be fraudulent due

 to these testimonial inconsistencies. Meece makes an illogical .leap to this

 conclusion. Wright accurately stated that "truthfulness" was a term of Meece's,

 Meade's, and Wellnitz's plea agreements. Then he presented their testimony

 and statements to the jury. From there, it was up to the jury to determine the

 veracity and credibility of this evidence. There is no fraud present.

 4.    Even if Wright had committed fraud, Meece's defense was not
       impeded.

       Under our jurisprudence, Meece cannot simply. claim fraud and emerge

 victorious from a motion for CR 60.02 relief. As we have reiterated, CR 60.02 is

 a means of extraordinary relief and requires a greater showing of proof. Thus,

. a defendant claiming relief must also show that the alleged fraud hindered his

 otherwise "meritorious defense." See Mauldin, 293 S.W.3d at 397 (Ky. 2009)

 (quoting Rice, 322 S.W.2d 468 (internal citations omitted)). Me'ece has failed to

 show how his defense was hindered in any way by Wright's alleged fraud.

       Although we have delineated Meece's fraud allegations into multiple

.· portions, in essence, Meece simply argues: Wright misrepresented my plea

 agreement to the jury and the court and allowed plea agreements for witnesses

 that I think lied. What Meece fails to emphasize is that he provided a robust
                                         . 24
defense as to these two areas. Meece testified, at length: about the reason for

his guilty plea; about how: the Commonwealth lied to him about his visit with

his childre~; about how he lied to get that vi~it with his children at the time of

the guilty plea; and about how Wright knew Meece was lying about the terms of

his plea agreement'. Meece attacked the credibility of the other witnesses

against him and he attacked the veracity of Wellnitz's confession. He had

ample opportunity to present this defense to the jury. But, the jury chose not
                      I



to believe him and found the evidence against him more persuasive. Simply

because his strategy was unsuccessful does not substantiate a claim of fraud.

The trial court did not abuse its discretion in finding a complete lack of any

basis for an allegation of fraud in this case.

      We must also remark on the irreconcilable contention from Meece that, if

not for Wright's false statements, "the trial court would have been forced to find

that the Commonwealth breached its end of the plea agreement [with Meece]."

If this had occurred, Meece claims that his "false, inculpatory, 2004 statements

would not have been admissible at trial." There is a basic fallacy to this

argument he fails to recognize. He testified, of his own volition, at trial that he

never intended to follow through with this plea agreement. He planned to, and

did, withdraw his plea as soon as his visit with his children was complete. He

admitted that he enacted this plea under his own fals.e belief that his

statements would. never be admissible against him at trial.
                  I


      Thus, whether       th~   Commonwealth breached its portion of the plea

agreement is irrelevant. Meece's statements were made voluntarily, without an

                                            25
intent to ever complete the agreement with the Commonwealth. Meece cannot

                "'
now claim his defense was hindered by the Commonwealth's refusal to

complete the terms of this agreement when he never intended to perform the

agreement. These arguments cannot be resolved. Meece cannot intend to

break the agreement, receive a benefit from the agreement, and then claim the

other party is at fault for riot performing. In sum, Meece cannot show that his

defense was impeded by the Commonwealth's non-performance when he never

intended to testify according to the terms of the plea agreement.

D.    Relief under CR 60.03.

      Alternatively, Meece claims relief under CR 60.03. Meece correctly

relates the rule under CR 60.03 that "Rule 60.02 shall not limit the power of

any court to entertain an independent
                                 ..
                                      action to relieve a person from a

judgment, order or proceeding on appropriate equitable grounds." He fails to

relate the last portion of the rule, however. "Relief shall not be granted in an

independent action if the ground or relief sought has been denied in a

proceeding by motion under Rule 60.02, or would be barred because not

brought in time under the provisions of that rule." Id.

      This rule is intended as an equitable form of relief when no other avenue

exists. See Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005). Relief

requires a showing of three elements: "Claimants must (1) show that they have

no other available or adequate remedy; (2) demonstrate that movants' own

fault, neglect, or carelessness did not create the situation for which they seek

equitable relief; and (3) establish a recognized ground ... for the equitable

                                        26
relief." Id. (quoting Campaniello Imports, Ltd. V. Saporiti Italia S.p.A., 117 F.3d

655, 662 (2nd Cir. 1997) (emphasis      remov~d)).   If an adequate remedy was

available in the original proceedings, CR 60.03 does not provide grounds for

equitable relief. Bowling, 163 S.W.3d at 365 (internal citations omitted).

      We have already held that the issues raised by Meece were addressed on

direct appeal, are better served in an RCr 11.42 motion, or are meritless. We

see no   separa~e   equitable relief warranted under the facts presented, thus,

Meece is not entitled to relief under CR 60.03.

E.    Meece's CR 8.04 argument.

      Meece ,also alleged that because the Commonwealth did not "specifically".

deny all of Meece's allegations in his CR 60.02 motion, "the Commonwealth

must be deemed to have admitted" them pursuant to CR 8.04. The

Commonwealth cites an unreported case in which the Court of Appeals held

that CR 8.04 does not apply to a CR 60.02 motion, as it does not require a

responsive filing and is inconsistent with the Rules of Criminal Procedure.

      It is not necessary at this time to determine whetl).er CR 8.04 applies to

CR 60.02 filings because the Commonwealth did respond to Meece's CR 60.02

motion. CR 8.04 simply states that "[a]verments in a pleading to which a

responsive pleading is required are admitted when not denied in the responsive

pleading" (emphasis added). The Commonwealth flatly denied in its response

to Meece's CR 60.02 motion that any witness committed perjury or that Wright

committed fraud, and the Commonwealth explained why Meece's arguments

fail. Clearly, these issues_ are all in dispute - most of them have been litigated

                                          27
 before and they have been argued and disputed extensively. Thus, CR 8.04

 does not require us to hold that all of Meece's arguments are considered to be

· admitted as true.·

                                    IV.·   CONCLUSION

       This Court has repeatedly held that the relief offered by CR 60.02 is

 extraordinary. However, we have also repeatedly held that CR 60.02 is not a

 method by which parties can reexamine issues already decided or for which
                                                            )
 there are other avenues of relief: Meece's motion has disguised direct appeal .

 and RCr 1 L42 arguments in an attempt to persuade this Court into    prov~ding


 the equitable relief afforded by CR 60.02. We are not persµaded, and, for the

 foregoing reasons, we affirm the Warren Circuit Court.

       All sitting. All concur ..



 COUNSEL FOR APPELLANT:

 Katherine Blair
·Department of Public Advocacy


 COUNSEL FOR APPELLEE:

 Andy Beshear
 Attorney General of Kentucky

 Jeffrey Allan Cross .
 Assistant Attorney General




                                           28
