RENDERED: OCTOBER 13, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1119-MR
TERRY W. TYLER APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 87-CR-00021
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND JONES, JUDGES.
JONES, JUDGE: Acting without the assistance of counsel, the Appellant, Terry
Tyler (“Tyler”), appeals from the Henderson Circuit Court’s order denying Tyler’s
petition for relief pursuant to CR1 60.02(e) and (f) and CR 60.03. We affirm.
1
Kentucky Rules of Civil Procedure.
I. BACKGROUND
In 1987, Tyler was convicted of first-degree robbery and third-degree
burglary. Record (“R.”) at 66-67. The jury also found Tyler to be a second-degree
persistent felony offender. Tyler was sentenced to life imprisonment. Id. On
March 3, 1988, the Kentucky Supreme Court affirmed Tyler’s conviction and
sentence. Subsequently, Tyler filed a total of eleven post-conviction motions,
excluding the present motion. A detailed summary of Tyler’s previous motions
was outlined by this Court in Tyler v. Commonwealth, No. 2009-CA-002355-MR,
2010 WL 5346166, at *1-3 (Ky. App. Dec. 29, 2010) and Tyler v. Commonwealth,
No. 2012-CA-000390-MR, 2013 WL 489815, at *1 (Ky. App. Feb. 08, 2013).
Relevant to the present appeal, on August 17, 2022, Tyler filed a
motion pursuant to CR 60.02 and 60.03,2 alleging he was sentenced under an
erroneous jury instruction and that his trial and appellate counsel were ineffective
for failing to object to the instruction and preserve it for review on direct appeal.
The trial court denied the motion as untimely and successive, noting that Tyler had
made the same argument in previous post-conviction motions. This appeal
followed.
2
CR 60.03 provides the court with an avenue, other than CR 60.02, to consider an independent
action to relieve a person from a judgment on appropriate equitable grounds. However, any
relief being sought under CR 60.03 shall not be granted if that relief has been denied in a
proceeding or motion under CR 60.02.
-2-
II. STANDARD OF REVIEW
We review a trial court’s decision on a CR 60.02 motion under an
abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.
App. 2000). “The test for abuse of discretion is whether the 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). “The burden of
proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege
facts which, if true, justify vacating the judgment and further allege special
circumstances that justify CR 60.02 relief.” Foley v. Commonwealth, 425 S.W.3d
880, 885 (Ky. 2014) (internal quotation marks and citations omitted). We will
affirm the trial court’s decision unless there is some “flagrant miscarriage of
justice.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). A trial
court’s denial of a CR 60.03 motion is also reviewed for abuse of discretion.
Jackson v. Commonwealth, 640 S.W.3d 99, 101 (Ky. App. 2022).
III. ANALYSIS
On appeal, Tyler argues that the trial court erred when it gave an
erroneous jury instruction during his trial in 1987, and that his trial and appellate
counsel were ineffective when they did not pursue the alleged error. Specifically,
Tyler argues that the penalty phase jury instruction was erroneous because it
-3-
omitted the statutory language “nor more than,” thereby only giving the jury the
choice to sentence him to either twenty years or life imprisonment as opposed to
providing a range of punishment.
Pursuant to CR 60.02, a movant must bring his motion within a
reasonable time. “What constitutes a reasonable time in which to move to vacate a
judgment under CR 60.02 is a matter that addresses itself to the discretion of the
trial court.” Gross, 648 S.W.2d at 858. This Court has affirmed the denial of a CR
60.02 motion filed five years post-conviction based on untimeliness. Id.
Additionally, a motion filed more than twenty years after trial was determined to
be untimely under CR 60.02. Foley, 425 S.W.3d at 884. Tyler has filed his
current motion more than thirty years after his conviction. The trial court did not
abuse its discretion when it determined Tyler’s motion was untimely.
Furthermore, “[o]ur rules of civil procedure do not permit successive
motions or the relitigation of issues which could have been raised in prior
proceedings.” Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009)
(citation omitted). Tyler has filed twelve post-conviction motions since his
judgement and sentence. Moreover, Tyler’s latest motion is an attempt to relitigate
an issue that has already been presented.3 Because Tyler’s post-conviction motion
3
See No. 2004-CA-1666-MR and No. 2012-CA-0390-MR.
-4-
is successive in nature and has already been litigated, it is improper under
Kentucky law.
Tyler’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 (emphasis added).
The plain language of CR 60.03 requires a separate, independent
action, which Tyler did not file. Moreover, because his argument is based upon the
same core grounds that failed to satisfy CR 60.02, he is not entitled to relief under
CR 60.03. Foley, 425 S.W.3d at 888. We thus find that the trial court did not
abuse its discretion when it denied Tyler’s CR 60.03 motion.
IV. CONCLUSION
For the foregoing reasons, we affirm the August 24, 2022 order of the
Henderson Circuit Court denying Appellant relief pursuant to CR 60.02 and 60.03.
ALL CONCUR.
-5-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Terry W. Tyler, pro se Daniel Cameron
Richmond, Kentucky Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
-6-