RENDERED: FEBRUARY 4, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1301-MR
DENNIS JACKSON APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
v. HONORABLE KENNETH PROFITT, JUDGE
ACTION NO. 10-CR-00038
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, CETRULO, AND MAZE, JUDGES.
CETRULO, JUDGE: Dennis Jackson appeals from the Breathitt Circuit Court oral
order denying Jackson’s motion for relief pursuant to Kentucky Rules of Civil
Procedure (“CR”) 60.02, 60.03, and the Eighth Amendment of the United States
Constitution. We affirm.
BACKGROUND
Appellant Dennis Jackson (“Jackson”) was accused of sexually
abusing four children and sodomizing one of them. He knew or met each of these
children through his role as a youth minister at a local church, his role as a baseball
coach at a local private Christian school, or as a relative.
At trial, Jackson denied all charges against him. Jackson was
convicted of one count of first-degree sodomy, four counts of first-degree sexual
abuse, and four misdemeanor sexual abuse charges. He was found not guilty of
two counts of first-degree sexual abuse and two other lesser charges. He received
a life sentence with the possibility of parole after 25 years. On appeal, the
Kentucky Supreme Court reversed three of his first-degree sexual abuse
convictions due to the admission of impermissible expert testimony and affirmed
the remaining convictions and his sentence. See Jackson v. Commonwealth, No.
2011-SC-000008-MR, 2012 WL 3637159 (Ky. Aug. 23, 2012).
Jackson thereafter filed a pro se motion to vacate judgment pursuant
to Kentucky Rule of Criminal Procedure (“RCr”) 11.42 alleging ineffective
assistance of trial counsel. On March 25, 2015, the circuit court denied the motion.
Jackson v. Commonwealth, No. 2015-CA-000520-MR, 2016 WL 5319392 (Ky.
App. Sep. 23, 2016). This Court affirmed. Jackson, 2016 WL 5319392, at *1.
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On June 15, 2020, Jackson filed another motion to vacate judgment
under CR 60.02, CR 60.03, and the Eighth Amendment of the United States
Constitution. The trial court conducted a hearing on August 7, 2020. At that
hearing, Jackson was represented by counsel and given an opportunity to testify.
Additionally, a prison employee testified about the health and safety protocols
currently in place at the prison complex. After testimony, the trial court orally
denied relief stating:
I don’t think that the situation, as I’ve heard it described,
rises to the level that would warrant a setting aside of
your judgment, vacating your judgment under 60.02(f)
and/or modifying it someway under 60.03. In particular,
it strikes me, that there is no guarantee of your safety no
matter where you’re at. Although I completely recognize
that you’re at a higher risk inside the prison if a situation
develops where inmates start . . . or staff, either one, start
testing or contracting the disease. So, after consideration,
and I will say I read your motion carefully for the hearing
today, in addition to listening to arguments, after
consideration, your request is denied. Motion is
overruled.
This appeal followed.
STANDARD OF REVIEW
This Court reviews orders on CR 60.02 motions for abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation
omitted). A trial court’s denial of a CR 60.03 motion is also reviewed for abuse of
discretion. Rogers Group, Inc. v. Masterson, 175 S.W.3d 630, 636 (Ky. App.
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2005) (citations omitted). “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation
omitted).
Questions of constitutionality are reviewed de novo. Phon v.
Commonwealth, 545 S.W.3d 284, 290 (Ky. 2018) (citation omitted).
ANALYSIS
Jackson is currently incarcerated at the Eastern Kentucky Correctional
Complex (“EKCC”). On appeal, Jackson argues he is entitled to relief from the
remainder of his sentence1 due to his risk of contracting SARS-CoV-2
(“COVID-19”). Citing the National Commission on COVID-19 in the Criminal
Justice System,2 Jackson alleges “inmates are 4 times more likely to be infected
than those in the free world” and if infected with COVID-19, incarcerated people
are “two times more likely to die from it.” Additionally, he argues that his various
health ailments3 put him in a high risk category for complications from the virus.
Specifically, Jackson argues that (1) the trial court abused its discretion in denying
1
In his brief, Jackson requested early release or “house arrest.”
2
See www.counciloncj.org/covid-19 (last accessed Feb. 2, 2022).
3
At the August 2020 hearing, Jackson argued his high risk factors include his age (79 years old);
his stroke in 2019; his high blood pressure and high cholesterol; his steroid shots for rheumatoid
arthritis; and his gallbladder removal in 2014.
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his motion under CR 60.02(f); (2) the trial court abused its discretion in denying
his motion under CR 60.03; and (3) he is entitled to relief under the Eighth
Amendment of the United States Constitution.
First, Jackson is not entitled to relief under CR 60.02(f). Our
Supreme Court has held there is a “high standard for granting a CR 60.02 motion,”
because relief under CR 60.02 is meant to be “special” and “extraordinary.”
Barnett v. Commonwealth, 979 S.W.2d 98, 101-02 (Ky. 1998). “[B]ecause of the
desirability of according finality to judgments, CR 60.02(f) must be invoked only
with extreme caution, and only under most unusual circumstances.”
Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App. 2004) (citation
omitted).
Although some might consider the COVD-19 pandemic to be unusual
and extraordinary, CR 60.02 “functions to address significant defects in the trial
proceedings.” Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. App. 2014)
(citing Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985)). However,
Jackson is not alleging any claims of error stemming from his prosecution, guilty
plea, or sentence. Jackson is arguing for release based upon health reasons, but
this Court has held physical ailments are not trial defects and do not qualify as
“claims of an extraordinary nature” entitling someone to relief under CR
60.02(f). Ramsey, 453 S.W.3d at 739 (internal quotation marks and citation
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omitted). In fact, we have rejected similar COVID-19-based arguments made by
other prisoners. Williams v. Commonwealth, Nos. 2019-CA-0964-MR and 2020-
CA-0638-MR, 2021 WL 943753 (Ky. App. Mar. 12, 2021); Gribbins v.
Commonwealth, No. 2020-CA-0635-MR, 2021 WL 1164461 (Ky. App. Mar. 26,
2021); Morris v. Commonwealth, No. 2020-CA-1195-MR, 2021 WL 1933656 (Ky.
App. May 14, 2021); Thomas v. Commonwealth, No. 2020-CA-1081-MR, 2021
WL 3117200 (Ky. App. Jul. 23, 2021); and Eaves v. Commonwealth, No. 2020-
CA-1276-MR, 2021 WL 3818113 (Ky. App. Aug. 27, 2021).
Simply put, because Jackson is not raising any claims of error
stemming from a defect in the trial proceedings or evidence at trial, etc., such that a
miscarriage of justice will result from the effect of the final judgment, he is not
entitled to CR 60.02 relief. See Wine, 699 S.W.2d at 754. Therefore, the trial
court did not abuse its discretion in denying his CR 60.02 motion.
Second, Jackson’s claim under CR 60.03 must also fail.
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. Relief shall not be granted in an independent
action if the ground of 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.
CR 60.03.
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The plain language of CR 60.03 requires a separate, independent
action, which Jackson did not file. Because his argument is based upon the same
core grounds that failed to satisfy CR 60.02(f), he is not entitled to relief under CR
60.03. Foley, 425 S.W.3d at 888 (quoting CR 60.03) (“Appellant is not entitled to
relief under CR 60.02. As such, in effect, the ‘relief sought [in his CR 60.03
action] has been denied in a proceeding by motion under Rule 60.02.’ It follows
that Appellant is not entitled to relief under CR 60.03.”). Consistently, we have
rejected similar CR 60.03 arguments made by other inmates during the COVID-19
pandemic. Williams, 2021 WL 943753, at *2-3; Gribbins, 2021 WL 1164461, at
*2; Morris, 2021 WL 1933656, at *2; Thomas, 2021 WL 3117200, at *2; and
Eaves, 2021 WL 3818113, at *2.
Additionally, CR 60.03 “is intended as an equitable form of relief
when no other avenue exists.” Meece v. Commonwealth, 529 S.W.3d 281, 295
(Ky. 2017). This rule requires Jackson to establish three necessary elements for
equitable relief:
Generally, claimants seeking equitable relief through
independent actions must meet three requirements.
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 – such as fraud,
accident, or mistake – for the equitable relief.
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Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005), abrogated on other
grounds by Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) (citation
omitted).
Logically, the second prong has been met; Jackson did not create the
COVID-19 pandemic. However, Jackson has not shown that he has no other
available or adequate remedy, nor has he established grounds for equitable relief.
In fact, another remedy may exist for Jackson: the parole board. We believe
granting parole is a duty best left to the parole board in accordance with Kentucky
Revised Statute (“KRS”) 439.330. While sentencing is a duty of the courts, parole
(for felonies) is a function of the executive branch (Department of Corrections).
KRS 439.330 and 439.340. Therefore, the trial court did not abuse its discretion in
denying his CR 60.03 motion.
Finally, Jackson is not entitled to relief under the Eighth Amendment.
The Eighth Amendment is violated “when the State by the affirmative exercise of
its power so restrains an individual’s liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic human needs – e.g.,
food, clothing, shelter, medical care, and reasonable safety.” Griffith v. Franklin
County, Ky., 975 F.3d 554, 566 (6th Cir. 2020) (citations omitted).
Herein, Jackson is not arguing that EKCC failed to provide him
medical care or reasonable safety; he is arguing that the complex could be doing
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more to protect the inmates from COVID-19. Jackson alleges that EKCC was not
testing inmates on a regular basis nor segregating those individuals at high risk.
However, like the Sixth Circuit, we look to see if EKCC took reasonable steps to
protect the inmates from the spread of COVID-19. Wilson v. Williams, 961 F.3d
829, 839-41 (6th Cir. 2020) (despite an outbreak ultimately occurring at the prison
in question (not EKCC), the Sixth Circuit determined that the Bureau of Prisons
had not been deliberately indifferent to the prisoners’ health and safety because it
responded reasonably to the risks posed by COVID-19 by implementing a plan to
reduce those risks).
Herein, the EKCC re-entry coordinator testified at the August 2020
hearing that the complex was taking COVID-19 precautions including: all the
inmates, approximately 2200, were issued masks and were mandated to wear the
masks when around other people; all prisoners must quarantine for 14 days if they
leave the facility for any reason, including but not limited to, medical treatment;
staff must sanitize their hands, wear masks, and get their temperatures taken upon
entry into the prison complex; if a staff member has close contact with someone
with COVID-19, he or she must receive a negative test result before returning to
work at EKCC; and if a staff member leaves the state, he or she must receive two
negative tests before returning to work at EKCC. We find these measures to be
reasonable.
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Certainly, COVID-19 poses a significant threat to those living in
confinement, and there is an increased risk of complications for individuals with
certain health conditions. However, Jackson stated at the August 2020 hearing that
he was receiving the medical treatment he required including high blood pressure
medicine, high cholesterol medicine, and steroid shots for rheumatoid arthritis.
Also, at that hearing, Jackson stated EKCC has “done a pretty good job here to do
the best they can, I think, to help protect us.” Despite this, Jackson did in fact
contract COVID-19 (since the trial court’s ruling). However, even if prison
officials knew of a substantial risk to inmate health or safety we look to see if the
officials “responded reasonably to the risk, even if the harm ultimately was not
averted.” Farmer v. Brennan, 511 U.S. 825, 844, 114 S. Ct. 1970, 1982-83, 128 L.
Ed. 2d 811 (1994).4 While Jackson argues that relief is necessary to protect him
from reexposure, he does not argue that the EKCC gave him inadequate medical
care or responded unreasonably to the pandemic risks. Therefore, the trial court
did not err in denying his motion.
For the foregoing reasons, the Breathitt Circuit Court order denying
Jackson’s post-conviction motion is AFFIRMED.
4
Although Farmer deals specifically with prison officials’ liability under an Eighth Amendment
violation, the United States Supreme Court’s analysis is applicable herein as it addresses the duty
of the prison officials to act reasonably when addressing a known inmate health risk, even and
especially if, the harm is not ultimately averted.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Dennis Jackson, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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