RENDERED: MARCH 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0396-MR
KEVIN ADAMS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 95-CR-002274
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
COMBS, JUDGE: Appellant, Kevin Adams, pro se, appeals from an order of the
Jefferson Circuit Court denying his motion to vacate the final judgment and order
of sentence under CR1 60.02. After our review, we affirm.
1
Kentucky Rules of Civil Procedure.
The underlying facts are summarized in this Court’s Opinion rendered
in a prior appeal, Adams v. Commonwealth, No. 2008-CA-000793-MR, 2010 WL
1132807, at *1 (Ky. App. Mar. 26, 2010), as follows in relevant part:
In April 1995, Adams admittedly strangled Helen
N. Kirk, causing her death. Adams maintains that Kirk’s
death was accidental, occurring while the couple was
engaged in consensual erotic asphyxiation. . . . Adams
was charged with first-degree rape, first-degree burglary,
first-degree robbery, and tampering with physical
evidence. The Commonwealth indicated it was going to
seek the death penalty and, in lieu of taking that
risk, Adams entered a guilty plea to murder, first-degree
rape, first-degree burglary, and tampering with evidence.
The court accepted Adams’s plea and sentenced him to
life imprisonment without the possibility of parole for
twenty-five years.
Following the court’s imposition of judgment and
sentencing, Adams filed a Kentucky Rule of Criminal
Procedure (RCr) 11.42 motion. In that
motion, Adams argued that his counsel had been
ineffective because they: failed to adequately prepare;
failed to advise him that he could have chosen to have a
jury impose sentence after entering his guilty plea; failed
to retain an expert to determine his competency; and
failed to establish that he lacked the requisite intent to
commit murder and burglary. The trial court
denied Adams’s motion . . . . This Court affirmed . . . .
After attempting to obtain relief from the federal
courts, Adams filed the CR 60.02 motion that is the
subject of this [the prior] appeal. As he did in his RCr
11.42 motion, Adams argued that his plea was not
knowing or voluntary, although for arguably different
reasons than he previously asserted.
....
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Adams has not presented any credible arguments or
evidence that he did not or could not have known of the
existence of those issues when he filed his RCr 11.42
motion. Therefore, Adams is foreclosed from raising
those issues via a CR 60.02 motion, and we affirm the
trial court’s denial of Adams’s motion.
On April 21, 2021, Adams filed another motion for relief pursuant to
CR 60.02(d), (e), and (f), requesting that his sentence be vacated. Adams argued
that when he was reviewed for parole on July 8, 2020, the parole board told him
that his PSI (pre-sentence investigation) report contained information that his
victim was scared of him. He claimed that the parole board used that information
against him in issuing a serve-out on his sentence. Adams contended that the
Commonwealth’s attorney erred in allowing information that the victim feared him
to be placed in his file when the findings of the Commonwealth’s attorney were to
the contrary. Adams also argued that the trial court erred in not examining the PSI
report to ensure its accuracy before imposing his sentence, citing KRS2 532.050.
Adams submitted that as he had “no right to view the pre-sentence report nor to
obtain a copy . . . from corrections, [he] could not have known about the
inaccuracies through due diligence until the parole board hearing . . . and the claim
must be accredited towards the consideration of new evidence.”
2
Kentucky Revised Statutes.
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By order entered March 15, 2022, the circuit court denied Adams’s
motion as follows in relevant part:
As pointed out by the Commonwealth in its
responsive brief, Mr. Adams had ample opportunity to
review the PSI and suggest corrections during his
sentencing hearing on December 7, 1995. The trial court
explicitly asked Mr. Adams and counsel if they had
reviewed the PSI and whether the PSI required any
corrections. Counsel answered that they reviewed the
PSI and it needed no corrections. Conversely, the
Commonwealth moved to correct the PSI by including
Ms. [sic] Adams’ criminal record. Thereafter, counsel
for Mr. Adams requested to review the information from
discovery before it was added to the record, and the trial
court responded that the information would be made
available.
Mr. Adams mistakes the requirement KRS
532.050(6) places upon courts. The statute reads as
follows:
Before imposing sentence, the court shall
advise the defendant or his or her counsel of
the factual contents and conclusion of any
presentence investigation or psychiatric
examinations and afford a fair opportunity
and a reasonable period of time, if the
defendant so requests, to controvert them.
The court shall provide the defendant’s
counsel a copy of the presentence
investigation report. It shall not be necessary
to disclose the sources of confidential
information.
After a review of the record, the Court is satisfied that
these requirements were followed during Mr. Adams’
sentencing hearing. Contrary to his assertions otherwise,
he had ample opportunity to review the PSI and move to
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correct it as he saw fit, which is all the statute
necessitates. See [Commonwealth] v. Bush, 740 S.W.2d
943 (Ky. 1987). Accordingly, Mr. Adams’ motion must
be denied.
Adams has appealed this order. “We review the denial of a CR 60.02
motion under an abuse of discretion standard. The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Stoker v. Commonwealth, 289 S.W.3d
592, 596 (Ky. App. 2009) (citations omitted).
In his appeal now before us, Adams reargued his case. We have
reviewed the video recording of the December 7, 1995, sentencing proceeding; we
are satisfied that the requirements of KRS 532.050(6) were followed. We agree
with the circuit court that Adams had ample opportunity to review the PSI report
and to move to correct it as he saw fit, which is all that the statute requires.
Accordingly, the circuit court did not abuse its discretion in denying Adams’s
motion.
We affirm the order of the Jefferson Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kevin L. Adams, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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