RENDERED: JUNE 18, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0046-MR
JUAN BERRY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 08-CR-001047
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
McNEILL, JUDGE: Juan Berry (Berry), pro se, appeals from the Jefferson Circuit
Court’s order denying his CR1 60.02 motion for resentencing. We reverse and
remand for resentencing.
1
Kentucky Rules of Civil Procedure.
I. BACKGROUND
On March 26, 2008, Berry was indicted on charges of: 1) sodomy in
the first degree, a Class B felony2; 2) unlawful transaction with a minor in the first
degree, a Class B felony3; 3) sexual abuse in the first degree, a Class D felony4;
and 4) being a persistent felony offender in the first degree.5
Berry entered into a plea agreement with the Commonwealth. On
June 11, 2008, the trial court entered a judgment and sentence consistent with that
plea agreement. Berry was sentenced under amended charges of: 1) being a
persistent felony offender in the second degree6; 2) sodomy in the third degree, a
Class D felony7; 3) unlawful transaction with a minor in the second degree, a Class
D felony8; and 4) the unamended charge of sexual abuse in the first degree, also a
Class D felony. Berry was sentenced to five years on each count for the sodomy,
unlawful transaction with a minor, and sexual abuse charges. Each sentence was
enhanced to ten years by the persistent felony offender conviction. Pursuant to the
plea agreement, the three ten-year sentences were to run consecutively.
2
Kentucky Revised Statutes (KRS) 510.070(1)(a).
3
KRS 530.064.
4
KRS 510.110(1)(a).
5
KRS 532.080.
6
KRS 532.080.
7
KRS 510.090.
8
KRS 530.065.
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In its judgment, the trial court noted, “The Commonwealth
recommends that these 10-year sentences run consecutively for a total of 30 years
to serve. [Berry] agrees to waive the statutory cap on sentencing in exchange for
more favorable parole eligibility resulting from this offer.” Later, the trial court
entered an amended judgment, further clarifying the agreement regarding parole
eligibility:
Specifically, all parties have contemplated and agree that
this plea shall make [Berry] eligible for parole after
serving twenty percent (20%) of this sentence and
[Berry] is NOT to be classified as a violent offender for
the purposes of determining his parole eligibility.
On December 27, 2013, Berry moved the trial court for resentencing
under CR 60.02. He maintained that pursuant to KRS 532.080(6)(b) and KRS
532.110(1), the maximum total sentence for three multiple class D felony offenses
was twenty years. The trial court denied the motion on November 25, 2015. This
Court affirmed the trial court. See Berry v. Commonwealth, No. 2015-CA-1897-
MR, 2017 WL 4712777 (Ky. App. Oct. 20, 2017).
On January 8, 2019, Berry filed a second motion pursuant to CR
60.02, making substantially the same argument as his previous CR 60.02 motion.
In further support, however, Berry cited the Kentucky Supreme Court’s decision in
Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018), which was decided after the
appeal of the order denying his December 27, 2013 CR 60.02 motion. The trial
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court denied Berry’s second CR 60.02 motion on October 25, 2019. This appeal
followed.
II. STANDARD OF REVIEW
We review the trial court’s denial of a motion pursuant to CR 60.02
under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86
(Ky. App. 2000). An abuse of discretion occurs when a “trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
III. ANALYSIS
The relevant portion of CR 60.02 provides:
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: . . . (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.
Berry argues that his sentence was illegal and therefore void under CR
60.02(e). He maintains, as he did in his previous appeal, that the maximum
aggregate sentence for three Class D offenses under KRS 532.080(6)(b) and KRS
532.110(1) is twenty years.
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Berry cites McClanahan v. Commonwealth, 308 S.W.3d 694, 701
(Ky. 2010), for the proposition that the statutory maximums prevent a plea
agreement such as his, where a defendant voluntarily waives a statutory cap in
exchange for other considerations. This argument was rejected in this Court’s
previous opinion:
At the time Berry entered his guilty plea, the law in
Kentucky was that “a defendant may validly waive the
maximum aggregate sentence limitation in KRS 532.110
(1)(c) that otherwise would operate to his benefit.”
Myers v. Commonwealth, 42 S.W.3d 594, 597 (Ky.
2001), overruled by McClanahan v. Commonwealth, 308
S.W. 3d 694 (Ky. 2010).
...
In the current case, Berry’s plea and sentence were
lawful at the time it was entered, and the decision in
McClanahan was rendered a few years after Berry’s
sentence became final. Berry entered his plea voluntarily
with full knowledge that the sentence exceeded the
statutory sentencing terms with the express purpose of
obtaining more favorable treatment for parole
considerations. . . . Consequently, Berry has failed to
show that there are strong equities requiring departure
from the proscription against retroactive treatment of new
decisions changing prior law or that failure to resentence
him would constitute a flagrant miscarriage of justice.
Berry, 2017 WL 4712777 at *2-3. We noted then that no published cases at the
time addressed the retroactive application of McClanahan. Berry, 2017 WL
4712777 at *2.
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Since this Court’s ruling on Berry’s previous appeal, however, the
Kentucky Supreme Court has rendered its opinion in Phon. In Phon, the defendant
appealed the denial of a CR 60.02 motion challenging the legality of his sentence
as being outside the statutory framework. In remanding the case to the trial court
with instructions to impose a legal sentence, the Court stated, “We hold today that
a sentence imposed beyond the limitations of the legislature as statutorily imposed
is unlawful and void.” Phon, 545 S.W.3d at 304. “It is because these sentences are
void and unlawful that CR 60.02 provides the proper remedy for relief.” Id.
Further, “[i]t is logical that such illegal sentences are considered void and
correctable at any time, as contrasted to an attack on the underlying conviction. If
the sentence goes beyond the jurisdiction of the court imposing it, then it must be
considered a legal nullity.” Id. at 305.
While the Commonwealth argues, pursuant to Gross v.
Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983), that Berry cannot raise an issue
in a CR 60.02 motion which “could reasonably have been presented” in a motion
under RCr. 11.42, the Kentucky Supreme Court also ruled in Phon that the
necessity of correcting an illegal sentence overcomes any possible procedural bar
to a CR 60.02 motion. 545 S.W.3d 284. “Illegal sentences must always be
correctable. To hold otherwise would fly in the face of the separation of powers
doctrine and grant the judiciary powers it was never intended to hold.” Id. at 307.
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The Commonwealth also argues that because the sentence was
considered legal at the time it was imposed under Myers and prior to the ruling in
McClanahan, it should be upheld. However, the Kentucky Supreme Court
considered the identical argument in Phon. It held that a change in the
interpretation of a statute which renders a previous sentence illegal applies
retroactively, whereas a change to a statute itself does not. Phon, 545 S.W.3d at
301.
Berry’s sentence is void because the thirty years’ imprisonment for
three Class D felonies exceeds the statutory maximum of twenty years pursuant to
KRS 532.080(6)(b) and KRS 532.110(1). Based upon the guidance of Phon, we
are compelled to conclude that the trial court abused its discretion when it denied
Berry’s CR 60.02 motion for resentencing. On remand, we direct the trial court to
impose a sentence not to exceed the statutory maximum.
III. CONCLUSION
For the reasons set forth above, we reverse the Jefferson Circuit
Court’s order denying Berry’s CR 60.02 motion and remand to the trial court with
directions to impose a sentence of imprisonment in conformance with the
Kentucky Revised Statutes.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Juan Berry, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
E. Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky
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