RENDERED: APRIL 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0962-MR
STEPHEN SCHOMAKER APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 16-CR-00083
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: The single issue in this appeal is whether the Campbell Circuit
Court erred in denying appellant Stephen Schomaker’s motion to amend a
judgment proscribing contact with minors, including his biological children. The
judgment was based upon appellant’s guilty plea to two counts of first-degree rape,
ten counts of promoting a sexual performance by a minor, and twelve counts of
sexual abuse in the first degree. Because the circuit court did not clearly err in
denying the relief sought, we affirm.
The victim in this case is the half-sister of appellant’s biological
children. Upon appellant’s guilty plea to the crimes charged, the trial court entered
judgment on July 20, 2017, sentencing him to twenty years’ imprisonment and
prohibiting appellant from contact with “minors without permission of his
probation officer or treatment provider. . . .” Appellant attempted to challenge the
no-contact provision regarding his biological children at sentencing, but upon
being advised of a Campbell Family Court case dealing with the issue of contact
with his biological children, the trial court declined to address the issue and
informed appellant he could raise it at a later time.
On October 17, 2018, appellant filed a motion to amend the judgment
to permit him to correspond with his children, to be permitted to have telephone
calls with his children; and to have access to his children’s school and medical
information. After conducting a hearing on the motion, the trial court entered an
order denying the motion. This appeal followed.
Prior to considering the merits of appellant’s contentions for reversal,
we must address the timeliness of appellant’s October 17, 2018 motion to amend
the judgment. As the Commonwealth points out, the motion to amend the
judgment was filed well beyond one year after the trial court lost jurisdiction to
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modify its July 20, 2017 judgment. The Commonwealth further argues that relief
is not available by treating his CR1 59.05 motion as one for relief under CR 60.02.
We agree.
In Commonwealth v. Gross, our Supreme Court disposed of a nearly
similar question regarding the application of CR 60.02:
As stated in previous opinions of this Court, the purpose
of CR 60.02 is to allow the trial court a method to
correct errors in judgments upon a showing of “facts
or grounds, not appearing on the face of the record
and not available by appeal or otherwise, which were
discovered after rendition of judgment without fault
of the party seeking relief.” Harris v. Commonwealth,
Ky., 296 S.W.2d 700, 701 (1956); see also Gross v.
Commonwealth, Ky., 648 S.W.2d 853, 856 (1983). The
trial court order modifying this sentence indicated that in
its original sentencing hearing the required pre-sentence
investigation report opined that Gross was not eligible for
probation as a result of his convictions. This opinion was
not challenged at that sentencing hearing nor was it
challenged on direct appeal in his first appeal to the
Court of Appeals. It is only after the passage of two
years that Gross advanced the argument to which the trial
court agreed that his convictions were in fact eligible for
probation. Whether Gross was eligible for probation or
not is immaterial in this adjudication in that the issue did
appear on the face of the record and was not challenged
by Gross at the sentencing hearing. Therefore, the issue
appears to be barred from any collateral attack whether
by CR 60.02 or otherwise.
936 S.W.2d 85, 88-89 (Ky. 1996) (emphasis added).
1
Kentucky Rules of Civil Procedure.
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Unlike the situation in Gross, however, appellant here raised the issue
of contact with his biological children at sentencing and the trial court declined to
address it, advising him that he could revisit the issue at a later time. Thus,
although appellant did not request CR 60.02, we will consider its applicability to
his motion.
CR 60.02 provides that a court may relieve a party from its final
judgment upon a satisfactory showing that one of the following grounds has been
established:
(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 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 rule also specifically provides that “[t]he 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.”
Subsections (a), (b), and (c) are inapplicable because appellant’s
motion to amend the judgment was lodged more than one year after entry of the
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judgment. No facts were alleged in the motion which would implicate subsections
(d) and (e). Thus, appellant’s only possible avenue for relief comes via subsection
(f) which requires a showing of “a reason of an extraordinary nature justifying
relief.” That avenue is foreclosed as well.
As the Supreme Court reiterated in Gross, CR 60.02 is designed to
remedy errors only upon a showing of “facts or grounds, not appearing on the face
of the record and not available by appeal or otherwise, which were discovered after
rendition of judgment without fault of the party seeking relief.” 936 S.W.2d at 88
(citation omitted). Even had appellant properly sought relief under this rule, he
could not satisfy its standard for obtaining relief because: 1) the facts and grounds
underpinning his CR 59 motion do appear on the face of the record; 2) he did have
available other avenues of relief, including a timely motion to withdraw his guilty
plea or through an appeal; and 3) the grounds for his requested relief were known
to him at the time of judgment and were in fact addressed at sentencing. In
addition, this precise issue is being addressed in proceedings in the Campbell
Family Court.
Finally, even if we were to conclude that Schomaker’s motion should
be treated as one under CR 60.02 to avoid the timeliness issue, we would
nevertheless affirm the denial of relief by the trial court. After conducting a
hearing, the trial court made findings on the record including: 1) that it had
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declined to consider appellant’s contact motion at sentencing because his family
had acted aggressively toward the victim’s mother during that proceeding; 2) that
despite his guilty plea, appellant has never accepted responsibility for his actions;
3) that because the victim still lives in the same home as appellant’s biological
children, contact would further complicate an already difficult family dynamic;
and 4) that a parent’s wish concerning contact is not always what is in the
children’s best interest. In addition to these factors, we note that appellant does not
argue that he has complied with the sentencing requirements that he complete the
Department of Corrections Sex Offender Treatment Program or that he attempted
to obtain the permission of his probation officer or treatment provider. Without
evidence that he complied with those sentencing requirements, his request for
contact with his biological children would appear to be premature.
Accordingly, we affirm the judgment of the Campbell Circuit Court
denying appellant’s motion for contact with his biological children.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Harry P. Hellings, Jr. Daniel Cameron
Covington, Kentucky Attorney General of Kentucky
E. Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky
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