RENDERED: MAY 26, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1190-MR
ISAIAH TYLER APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 14-CR-00034-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Isaiah Tyler appeals from the Henderson Circuit Court’s
denial of his Kentucky Rule of Civil Procedure (CR) 60.02 motion. We affirm.
In late 2014, a jury found Tyler guilty of complicity to first-degree
robbery and of being a second-degree persistent felony offender (PFO II). The
jury did not fix a sentence on the complicity charge; instead, it recommended a
sentence of forty years’ imprisonment for Tyler being a PFO II. In early 2015, the
trial court sentenced Tyler to forty years’ imprisonment, in accordance with the
jury’s recommendation. However, the judgment erroneously states that Tyler was
convicted of first-degree robbery, not complicity.
Our Supreme Court affirmed on direct appeal. Tyler v.
Commonwealth, No. 2015-SC-000064-MR, 2016 WL 3370931 (Ky. Jun. 16,
2016). That opinion correctly noted that Tyler had been convicted of complicity to
robbery. Id. at *1. Tyler then filed a motion to vacate, set aside, or correct the
judgment and sentence pursuant to Kentucky Rule of Criminal Procedure (RCr)
11.42 and CR 60.02. That motion did not address alleged errors in the trial court’s
judgment. The trial court denied the motion; we affirmed. Tyler v.
Commonwealth, No. 2017-CA-001228-MR, 2019 WL 3990995 (Ky. App. Aug.
23, 2019). Our opinion stated Tyler had been convicted of complicity. Id. at *2.
Tyler filed a second CR 60.02 motion in August 2020, which focused
on the impact of the COVID-19 pandemic and did not address alleged errors in the
judgment. The trial court denied the motion. We dismissed the appeal, at Tyler’s
request. Tyler v. Commonwealth, No. 2021-CA-0642-MR.
Tyler later filed the CR 60.02 motion at hand. The motion argues that
Tyler’s conviction and sentence are void because of several alleged errors in the
judgment of conviction, including listing the wrong crime. Tyler also contends he
is entitled to relief because the jury did not fix a sentence for the complicity
conviction. The trial court denied the motion without a hearing, holding Tyler
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could have raised the arguments previously and the alleged errors did not warrant
CR 60.02 relief. Tyler filed what he styled a petition for reconsideration.1 The
trial court denied reconsideration of the result but did provide additional analysis.
The court admitted the judgment contained “typographical errors” but held they
did not entitle Tyler to CR 60.02 relief. Tyler then filed this appeal.
Tyler seeks relief under CR 60.02(e), which allows relief from a void
judgment, and 60.02(f), which allows for a “reason of an extraordinary nature
justifying relief.” Our Supreme Court has explained that Tyler, as the movant,
bears the steep burden to “affirmatively allege facts which, if true, justify vacating
the judgment and further allege special circumstances that justify CR 60.02 relief.
To justify relief, the movant must specifically present facts which render the
original trial tantamount to none at all.” Foley v. Commonwealth, 425 S.W.3d 880,
885 (Ky. 2014) (internal quotation marks and citations omitted).
We review a trial court’s decision to deny a CR 60.02 motion under
the deferential abuse of discretion standard. Id. at 886. “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles. Therefore, we will affirm the lower
1
Tyler cited Kentucky Revised Statute (KRS) 342.281, but that statute is irrelevant because it
applies to asking an administrative law judge to reconsider a workers’ compensation decision.
Since the trial court ruled on the motion anyway, we will leniently construe it to have been a
mis-labeled motion to alter, amend, or vacate a judgment under CR 59.05.
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court’s decision unless there is a showing of some flagrant miscarriage of justice.”
Id. (internal quotation marks and citations omitted).
We discern no flagrant miscarriage of justice here.2 The appeal is
procedurally barred and otherwise fails on the merits.
We begin with the fatal procedural defects. This is the third time
Tyler has sought CR 60.02 relief. Our Supreme Court has explained that “CR
60.02 does not permit successive post-judgment motions . . . .” Id. at 884. See
also, e.g., Berry v. Commonwealth, 624 S.W.3d 119, 121 (Ky. App. 2021).
Second, the alleged errors in the judgment are mistakes that Tyler
knew, or reasonably should have known about, long ago. He even describes the
errors as “obvious” in his opening brief. Consequently, it is beyond serious dispute
that he should have raised issues regarding “obvious” errors previously.
As our Supreme Court held, “[a]t each stage . . . the defendant is
required to raise all issues then amenable to review, and generally issues that either
2
Tyler’s brief fails to contain citations to specific locations in the record or statements showing
whether, and how, his arguments were preserved for our review. See Kentucky Rule of
Appellate Procedure (RAP) 32(A)(3)-(4) (formerly CR 76.12(4)(c)(v)). We already explained to
Tyler the importance of complying with mandatory briefing requirements, including preservation
statements, in our opinion affirming the denial of his combined RCr 11.42 and CR 60.02 motion.
Tyler v. Commonwealth, No. 2017-CA-001228-MR, 2019 WL 3990995, at *2. However, since
the Commonwealth has not asked us to impose sanctions and has not argued that Tyler raised
new arguments on appeal, we leniently will not impose sanctions. However, we strongly caution
Tyler that it is highly likely that sanctions will be imposed upon him, which may include striking
his brief and dismissing his appeal, if he again submits a brief which fails to comply substantially
with all applicable appellate briefing rules.
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were or could have been raised at one stage will not be entertained at any later
stage.” Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010). Because
Tyler could, and should, have raised the alleged errors in the judgment sooner, he
is now procedurally barred from receiving CR 60.02 relief. See, e.g., Sanders v.
Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (“A review of the grounds for
relief listed above demonstrates that each of the claims, with the exercise of
reasonable diligence, could have been brought either in Appellant’s direct appeal
or in his RCr 11.42 proceeding. As such, they do not qualify to be brought in a CR
60.02 proceeding.”).
The motion also would fail on the merits. Tyler’s chief argument is
that the judgment is void because the jury was not asked to – and thus did not – fix
a sentence for the underlying complicity charge. Although the jury should have
been asked to do so, “where, as here, there is no possibility that the PFO sentence
is unlawful, any error in not requiring the jury to fix an underlying sentence was a
mere procedural defect not subject to review in the absence of a contemporaneous
objection.” Montgomery v. Commonwealth, 320 S.W.3d 28, 49 (Ky. 2010).
The cases Tyler relies upon for his argument that his PFO II sentence
is void are materially distinguishable because each involves a jury imposing a fine
instead of a prison term on the underlying felony, as we and our Supreme Court
have explained. Hulett v. Commonwealth, 834 S.W.2d 688, 690 (Ky. App. 1992)
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(“The present case, furthermore, is distinguished from Davis v. Manis, Ky., 812
S.W.2d 505 (1991) and Commonwealth v. Hayes, Ky., 734 S.W.2d 467 (1987).
Those cases hold that a defendant cannot be convicted as a persistent felony
offender unless a term of imprisonment is imposed as the punishment on the
underlying charge. Davis at 506; Hayes at 469. Both cases, however, involve
situations in which a defendant found guilty of trafficking in a controlled substance
on the underlying charge received a fine, rather than a prison sentence.”);
Montgomery v. Commonwealth, 819 S.W.2d 713, 720-21 (Ky. 1991) (“There was
no instruction directing the jury to set any sentence on the underlying offense
before deliberating a setting a sentence within the range provided on the PFO
charge. The jury fixed the maximum penalty, 20 years, within the range provided
(ten to twenty years) upon conviction as a PFO offender . . . . Hayes is factually
distinguishable because the jury imposed only a fine for the underlying offense
which it thereafter attempted to enhance with a prison sentence upon conviction as
a PFO. The holding in Hayes is that only a prison sentence and not a fine can be
enhanced under the language of the PFO statute. Thus we were confronted in
Hayes . . . with a longer sentence than the law allowed, which is not the case here.
The error here, if there was one, was a procedural matter which we need not
address in the absence of a contemporaneous objection.”). In short, the lack of a
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sentence for the complicity conviction is a “mere procedural defect” which does
not render the judgment void or infringe upon Tyler’s constitutional rights.
CR 60.02 relief “is extreme, limited, and reserved for those times
when justice itself requires an avenue for the plight endured by the aggrieved
party.” Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017). The lack of a
sentence for the underlying complicity conviction is not the sort of egregious
injustice which entitles Tyler to CR 60.02 relief, especially since his overall forty-
year sentence is within the statutory limits.
A similar conclusion applies to the remainder of the alleged errors in
the judgment. For example, we agree that the judgment unfortunately reflects that
Tyler was convicted of robbery, not complicity. But Tyler has shown no prejudice
whatsoever resulting from that error. See Priddy v. Commonwealth, 629 S.W.3d
14, 19 (Ky. App. 2021) (holding that “the person convicted of complicity is
convicted of the underlying crime and is subject to all the consequences thereof.”).
Both we and our Supreme Court have noted the correct underlying crime for which
Tyler was convicted, so the error did not impact Tyler’s right to seek appellate
review. Relatedly, the judgment is inherently final and appealable even though it
does not contain finality language. And the lack of finality language is of no
tangible significance since Tyler was able to file a direct appeal to our Supreme
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Court. Similarly, Tyler has not shown any prejudice resulting from the judgment
erroneously stating that it was signed in January 2014, not January 2015.
Moreover, Tyler’s argument that the judgment does not mention that a
jury trial occurred is incorrect. The judgment states “the Court having determined
that the defendant heretofore was found guilty on November 14, 2014, by a jury in
connection with the offense(s) charged in the indictment . . . .”
In sum, we have carefully reviewed the judgment and agree with
Tyler and the trial court that it contains errors. However, Tyler has not shown how
any errors, either alone or in combination, caused him to suffer any concrete
prejudice. Accordingly, the trial court did not abuse its discretion when it denied
Tyler’s CR 60.02 motion without first conducting a hearing.
For the foregoing reasons, the Henderson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Isaiah Tyler, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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Isaiah Tyler v. Commonwealth of Kentucky
Combined Opinion