RENDERED: NOVEMBER 9, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1135-MR
JOEY LYNN SMITH APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 18-CR-01276
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
KAREM, JUDGE: Joey Lynn Smith appeals the Hardin Circuit Court’s denial of
her pro se motion for relief under Kentucky Rule of Civil Procedure (“CR”) 60.02.
Finding no error, we affirm.
On December 13, 2018, a Hardin County Grand Jury indicted Smith
on a charge of first-degree robbery. Smith ultimately went to trial and was
convicted as charged. This Court explained the facts of Smith’s crimes:
On October 25, 2018, Smith; her paramour,
Michael Moody; and his brother drove from Nelson
County, Kentucky, to the mall in Elizabethtown. Smith
entered Belk, a department store, while Moody and his
brother initially remained in the van. The manager of
Belk saw Smith and recognized her from the week prior
when Smith, accompanied by Moody, had attempted to
shoplift from the store. The manager apprised Rowe,
who worked in loss prevention, of Smith’s history.
Rowe proceeded to surveil Smith while she
shopped and at one point saw Moody separately in the
store. Rowe’s surveillance did not go unnoticed. A
customer, Richardson, saw Rowe, whom she described as
a “sketchy looking guy,” lurking behind racks watching
Smith. Richardson, unsure if Rowe was loss prevention
or a possible stalker, sought and received confirmation of
his legitimacy from store staff.
Meanwhile, Rowe observed Smith leave a fitting
room with her purse and a tote bag belonging to the store,
both filled with merchandise. Smith proceeded toward
the store exit – two sets of glass doors separated by a
vestibule. Rowe alerted the manager that he was going to
make a stop, made visible his staff identification badge,
and pursued Smith.
Smith passed the checkout counters and reached
the interior set of doors when Rowe confronted her,
announced that he was security, and asked her to stop.
Smith sped up and continued through the first set of
doors to the vestibule. Rowe again announced that he
was security and asked her to stop. Smith attempted to
proceed out the exterior doors, but Rowe grabbed her
shirt. The two then struggled off and on for
approximately five minutes. At periods, Smith would
calm, and Rowe would release her, only for her to
attempt to flee again. Smith yelled to be let go and
attempted to headbutt, bite, and elbow Rowe. Rowe was
elbowed in the ribs and had his left hand cut open while
-2-
holding Smith’s arms to restrain her. Smith’s purse and
the tote bag fell to the floor.
While the struggle was ongoing, Moody, who
testified he had only entered the store to locate Smith, left
the store from a different exit. He further testified that
while walking to the van, he heard Smith screaming from
the store behind him. Moody got in the van, drove to the
doors where Smith was being restrained, and exited the
van. Before entering the store, Moody encountered
Richardson who advised him that he should not enter as
the police were on their way. In response, Moody
backpedaled to the van and retrieved a handgun
belonging to Smith.
Armed, Moody entered the vestibule of the store
where Rowe had his back to the entrance and Smith was
against the wall. Moody chambered a round, pointed the
gun at Rowe, and told him to release Smith. Rowe
immediately complied. Moody told Smith to get her stuff
and go. Smith took her purse, abandoning the tote bag.
Moody and Smith left the store, got in the van, sped to
another exit of the mall to pick up Moody’s brother, and
then fled with the van door still open.
The police promptly stopped the van, and Moody
and Smith were arrested. Moody’s brother was not
present, having been dropped off by Moody prior to the
stop. Moody testified he told his brother to go because
the brother was innocent of any wrongdoing. The Belk
merchandise and a handgun were found in the van.
When police asked Moody if he knew Smith was
shoplifting, Moody stated that he did and indicated the
reason he acted was to help Smith.
At the trial, Moody qualified these statements by
testifying that he only learned of Smith’s shoplifting after
they left Belk, denying that they had jointly planned to
steal from Belk, and explaining that his only intent was to
protect Smith from what he perceived to be an attack by
-3-
Rowe. Moody further testified he fled the scene because
he was a felon and knew it was illegal for him to possess
a firearm. Smith did not testify at trial.
After hearing the testimony, reviewing the video
surveillance, and listening to the police dispatch calls
placed by the manager and Richardson, the jury found
both Smith and Moody guilty of robbery in the first
degree. Smith was convicted and sentenced to ten years’
imprisonment by the Hardin Circuit Court.
Smith v. Commonwealth, No. 2019-CA-1456-MR, 2021 WL 223240, at *1-2 (Ky.
App. Jan. 22, 2021). Smith appealed and on January 22, 2021, this Court rendered
an opinion affirming her conviction. Id. at *1. Smith then filed a motion for relief
under CR 60.02(f), and CR 60.03. The circuit court judge denied the motion on
August 30, 2022, and this appeal followed.
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). “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).
In this case, Smith had an opportunity to attack the judgment under
Kentucky Rule of Criminal Procedure (“RCr”) 11.42 if she thought the circuit
court entered it improperly. RCr 11.42 provides a procedure for a motion to
vacate, set aside, or correct sentence for “a prisoner in custody under sentence or a
defendant on probation, parole or conditional discharge[.]” Moreover, RCr 11.42
-4-
provides that “the motion shall state all grounds for holding the sentence invalid of
which the movant has knowledge. Final disposition of the motion shall conclude
all issues that could reasonably have been presented in the same proceeding.”
(Emphasis added.) Thus, RCr 11.42 forecloses Smith from raising questions under
CR 60.02 that are “issues that could reasonably have been presented” by RCr 11.42
proceedings.
Additionally, Smith does not contest the circuit court’s findings
regarding her CR 60.02 motion. Instead, she raises two new claims, alleging that
trial counsel violated her due process rights when they allegedly failed to
investigate her case and when the Commonwealth allegedly defined reasonable
doubt during voir dire.
Because such claims were not set forth in Smith’s original CR 60.02
motion but could have been, this Court is precluded from considering them. The
Kentucky Supreme Court has been clear that “[a] new theory of error cannot be
raised for the first time on appeal.” Springer v. Commonwealth, 998 S.W.2d 439,
446 (Ky. 1999). In discussing this issue, the Court has explained that “[t]he
underlying principle of the rule is to afford an opportunity to the trial court, before
or during the trial or hearing, to rule upon the question raised.” Hartsock v.
Commonwealth, 382 S.W.2d 861, 864 (Ky. 1964). We may not review those
arguments because, in the absence of a ruling by the trial court, an appellate court
-5-
cannot review the alleged error. RCr 9.22; Todd v. Commonwealth, 716 S.W.2d
242, 248 (Ky. 1986).
Here, the circuit court had no such opportunity, as Smith’s motion
made no claim regarding trial counsel’s failure to investigate her case or statements
made by the Commonwealth during voir dire. Therefore, Smith is estopped from
raising them now, and they cannot be used as a basis to overturn the circuit court
judge’s order.
CONCLUSION
Based upon the foregoing, we affirm the judgment of Hardin Circuit
Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Joey Lynn Smith, pro se Daniel Cameron
Pewee Valley, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
-6-