RENDERED: JANUARY 26, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0477-MR
ANTHONY B. WHELAN APPELLANT
APPEAL FROM HART CIRCUIT COURT
v. HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 13-CR-00091
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; GOODWINE AND MCNEILL,
JUDGES.
THOMPSON, CHIEF JUDGE: Anthony Whelan (“Appellant”) appeals from an
order of the Hart Circuit Court denying his Kentucky Rules of Civil Procedure
(“CR”) 60.02 motion for relief from judgment. Appellant argues that the circuit
court violated various constitutional safeguards when it failed to evaluate his
competency at the sentencing hearing, and when his trial counsel abandoned him at
a critical stage of the proceedings. He requests an opinion reversing the order on
appeal. After careful review, we find no error and affirm the order of the Hart
Circuit Court.
FACTS AND PROCEDURAL HISTORY
On July 12, 2013, a Hart County grand jury indicted Appellant on
multiple counts of sex crimes involving three of his stepchildren under the age of
12. A competency hearing and pretrial hearing was conducted on September 27,
2013, at which time the court heard the testimony of Steven Sparks, Ph.D., and
entered his report into evidence. Dr. Sparks’ report stated that Appellant said he
had engaged in sex acts with children on many occasions; that he never did
anything the children did not want; and, that he never did anything to hurt the
children.
The circuit court determined that Appellant was competent to stand
trial. The parties agreed that no plea agreement could be reached because
Appellant was not willing to implicate his wife in the crimes. Appellant, through
counsel, then stated that Appellant wished to enter a guilty plea on all charges,
with the court determining the sentence.
On September 27, 2013, Appellant entered a plea of guilty in Hart
Circuit Court on five counts of rape in the first degree; 19 counts of sodomy in the
first degree; and 11 counts of sexual abuse in the first degree.1 The court engaged
1
Kentucky Revised Statutes (“KRS”) 510.040; KRS 510.070; and KRS 510.110.
-2-
in a guilty plea colloquy with Appellant, with Appellant stating that he was
completely satisfied with defense counsel’s performance. During the colloquy,
Appellant asserted that the Webster’s Dictionary definition of rape differed from
that of the Kentucky statutes, and argued that he never raped a child because there
was no penetration. Appellant’s counsel then advised him that the slightest
penetration was sufficient to support the guilty plea, and that Appellant had already
admitted placing his penis near his stepdaughter’s vagina and that he pushed his
penis against it. After conferring with counsel, Appellant decided to continue with
the guilty plea on all charges.
Thereafter, Appellant submitted to a Comprehensive Sex Offender
Pre-Sentence Evaluation. The examiner reported to the court that Appellant
admitted to sexually abusing his stepchildren; that he sexually abused his
biological daughter when she was 10 years old; that Appellant recognizes that he is
a sexual offender and a pedophile; and Appellant’s belief that he committed the
charged offenses and should never be a free person again. The report noted that
Appellant admitted to sexually abusing three other girls and a mentally disabled
male. The examiner opined that Appellant was a high risk for committing future
sex offenses and that he posed a significant threat to public safety. On December
3, 2013, the circuit court sentenced Appellant to life in prison.
-3-
On August 2, 2018, Appellant filed his first CR 60.02(f) motion
seeking to reduce his sentence to 20 years in prison. In support of the motion,
Appellant asked for the reduction so he could obtain psychological help and enter a
sex offender treatment program. The court denied the motion on November 20,
2018.
On December 29, 2022, Appellant filed a second CR 60.02 motion
arguing that the circuit court erred in failing to investigate his guilt or innocence.
He also maintained that his defense counsel was ineffective during the guilty plea
phase of the proceedings. After considering the motion, the circuit court
determined that CR 60.02 was only available for claims which were not known nor
could have been known with the exercise of reasonable diligence at the time of
judgment and sentence. The court concluded that the circuit court’s alleged failure
to investigate, and counsel’s purported malfeasance, if any, were known or should
have been known at the time of judgment. Further, the court determined that the
motion was not brought within a reasonable time per CR 60.02, as nine years had
lapsed since the judgment and sentence.
In addition, the court found that Appellant had failed to avail himself
of direct appeal or a Kentucky Rules of Criminal Procedure (“RCr”) 11.42 motion
before seeking relief via CR 60.02. It also found that CR 60.02 relief is only
-4-
available to correct a substantial miscarriage of justice, which the instant facts did
not support.
Based on the foregoing, the Hart Circuit Court denied Appellant’s
second CR 60.02 motion on March 21, 2023. This appeal followed.
STANDARD OF REVIEW
“Our standard of review of a trial court’s denial of a CR 60.02 motion
is whether the trial court abused its discretion. The test for abuse of discretion is
whether the trial court’s decision was ‘arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.’” Age v. Age, 340 S.W.3d 88, 94 (Ky. App.
2011) (citations omitted).
ARGUMENTS AND ANALYSIS
Appellant argues that the Hart Circuit Court committed reversible
error by failing to evaluate his competency at the sentencing hearing. He asserts
that at the time of sentencing, the circuit court had reasonable grounds to question
his competency, because he was confused and lacked the ability to make
reasonable decisions. Appellant contends that though the circuit court did
determine that he was competent on September 27, 2013, the record raises
questions as to whether that assessment was correct. Appellant argues that he was
even less competent some 7 weeks later at the time of sentencing. Further,
Appellant points out that he did not graduate from high school; does not have a
-5-
general educational diploma (“GED”); was not equipped to understand complex
legal issues at the time of his plea and sentencing; and that these factors support his
claim for CR 60.02 relief.
Appellant goes on to argue that the circuit court improperly failed to
investigate Appellant’s guilt or innocence; that he was deprived of due process
during the guilty plea and sentencing phase; and that the lack of due process
effectively coerced him into making a guilty plea. Lastly, Appellant contends that
his defense counsel effectively abandoned him at the critical plea and sentence
phase of the proceedings, in that counsel’s sole objective was to convince
Appellant to enter a guilty plea. Appellant maintains that these factors, considered
individually or in their totality, support his argument for CR 60.02 relief from
judgment. He argues that the Hart Circuit Court erred in failing to so rule.
Having closely examined the record and the law, we conclude that
there are several reasons why the order of the Hart Circuit Court should be
affirmed. First, CR 60.02 provides that “[t]he motion shall be made within a
reasonable time[.]”2 Appellant’s second CR 60.02 motion was made some 9 years
after the judgment. This delay is not reasonable per CR 60.02, especially as each
of the arguments made by Appellant were known or should have been known to
2
Appellant’s motion was made pursuant to CR 60.02(e) and (f), which is subject to the
“reasonable time” requirement. A motion made via CR 60.02(a), (b), or (c) must be filed within
one year of the judgment.
-6-
him at the time of judgment. Appellant’s motion was also successive and
repetitive. “CR 60.02 does not permit successive post-judgment motions[.]” Foley
v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014). The nine year delay in
Appellant’s motion, and its successive nature, form a sufficient basis for affirming
the order on appeal.
Further, in Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), the
Kentucky Supreme Court set out the procedure for a post-conviction collateral
attack on a judgment. It stated,
[w]e hold that the proper procedure for a
defendant aggrieved by a judgment in a
criminal case is to directly appeal that
judgment, stating every ground of error which it
is reasonable to expect that he or his counsel is
aware of when the appeal is taken.
Next, we hold that a defendant is
required to avail himself of RCr 11.42 while in
custody under sentence or on probation, parole
or conditional discharge, as to any ground of
which he is aware, or should be aware, during
the period when this remedy is available to him.
Final disposition of that motion, or waiver of
the opportunity to make it, shall conclude all
issues that reasonably could have been
presented in that proceeding. The language of
RCr 11.42 forecloses the defendant from
raising any questions under CR 60.02 which are
“issues that could reasonably have been
presented” by RCr 11.42 proceedings.
-7-
Id. at 857. “CR 60.02 . . . may be utilized only in extraordinary situations when
relief is not available on direct appeal or under RCr 11.42.” Foley, 425 S.W.3d at
884 (citation omitted).
Having entered a plea of guilty, Appellant waived his right to a direct
appeal. Additionally, he did not pursue RCr 11.42 relief. “Moreover, the law
favors the finality of judgments. Therefore, relief may be granted under CR 60.02
only with extreme caution and only under the most unusual and compelling
circumstances.” Age, 340 S.W.3d at 94 (citation omitted). With the benefit of
counsel, Appellant admitted in open court to raping and sodomizing his minor
stepchildren. After engaging in a full colloquy, he entered a guilty plea on all
charges. Arguendo, even if he had prosecuted a direct appeal, followed by an RCr
11.42 motion before seeking CR 60.02 relief, Appellant has not demonstrated
unusual and compelling circumstances per Age entitling him to such relief.
CONCLUSION
Appellant’s CR 60.02 motion was untimely and successive. In
addition, it did not comply with the procedural scheme and the arguments raised
were not so unusual and compelling as to justify relief from judgment. For these
reasons, we affirm the order of the Hart Circuit Court.
ALL CONCUR.
-8-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Anthony B. Whelan, pro se Daniel Cameron
Wheelwright, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
-9-
Anthony Whelan v. Commonwealth of Kentucky
Combined Opinion