RENDERED: OCTOBER 23, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1490-MR
BRIAN A. QUEEN, SR. APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 12-CR-003073
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Brian A. Queen, Sr., pro se, brings this appeal from an
August 21, 2018, order of the Jefferson Circuit Court denying his Kentucky Rules
of Civil Procedure (CR) 60.02 motion to vacate his final judgment of
imprisonment. We affirm.
On February 18, 2012, appellant robbed a BB&T Bank in Louisville,
Kentucky. He was indicted by the Jefferson County Grand Jury on October 8,
2012. Appellant ultimately entered a guilty plea and on April 17, 2014, the circuit
court sentenced appellant to a total of ten-years’ imprisonment upon his guilty plea
to first-degree robbery, tampering with physical evidence, and two counts of first-
degree fleeing or evading police. Because of the first-degree robbery conviction,
appellant was classified as a violent offender and was required to serve 85 percent
of his sentence before being considered parole eligible.
Some three years later, on August 17, 2018, appellant, pro se, filed a
CR 60.02 motion seeking to have the court amend his first-degree robbery
conviction to second-degree robbery. Appellant pointed out that he never directly
threatened anyone with a gun during the robbery. By amending his conviction to
second-degree robbery, appellant believed he would become parole eligible.
By order entered August 21, 2018, the circuit court denied the CR
60.02 motion. This appeal follows.
A CR 60.02 motion is an extraordinary remedy only available to
remedy a “substantial miscarriage of justice[.]” Wilson v. Commonwealth, 403
S.W.2d 710, 712 (Ky. 1966). CR 60.02 reads:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable
neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59.02; (c) perjury or falsified
evidence; (d) fraud affecting the proceedings, other than
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perjury or falsified evidence; (e) the judgment is void, or
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.
A motion under this rule does not affect the finality of a
judgment or suspend its operation.
And, we review the circuit court’s denial of a CR 60.02 motion for abuse of
discretion. Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009).
Appellant contends that he was entitled to CR 60.02 relief because the
violent offender statute (Kentucky Revised Statutes (KRS) 439.3401) is
unconstitutional. He argues that KRS 439.3401 is unconstitutionally vague and
violates separation of powers by permitting the judicial branch to determine parole
eligibility.
We begin by pointing out that appellant did not allege that KRS
439.3401 was unconstitutional in his CR 60.02 motion before the circuit court.
Instead, he raises this argument for the first time on appeal; thus, he is only entitled
to relief if the error was palpable per Kentucky Rules of Criminal Procedure (RCr)
10.26.
Appellant has failed to demonstrate that KRS 439.3401 is
unconstitutional. As opposed to appellant’s contention, KRS 439.3401 does not
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empower the judicial branch to determine parole eligibility. Rather, the parole
board will determine whether to grant appellant parole after he serves 85% of his
sentence of imprisonment. Additionally, we believe KRS 439.3401 is reasonably
clear so as not to be vague as to its terms. Hence, we conclude that KRS 439.3401
is not unconstitutional.
Appellant also argues that the circuit court improperly categorized
him as a violent offender under KRS 439.3401. A plain reading of KRS
439.3401(1) reveals that a defendant who has been convicted of or pleaded guilty
to first-degree robbery is a violent offender. It is undisputed that appellant pleaded
guilty to first-degree robbery and was properly classified as a violent offender
under KRS 439.3401(1).
Accordingly, we conclude that appellant failed to demonstrate
palpable error and that the circuit court did not abuse its discretion by denying
appellant’s CR 60.02 motion.
For the foregoing reasons, the order of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Brian A. Queen, Sr., Pro Se Andy Beshear
Lexington, Kentucky Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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