RENDERED: JULY 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1081-MR
JEROME THOMAS APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE
ACTION NO. 11-CR-00042
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
COMBS, JUDGE: Appellant, Jerome Thomas (Thomas), appeals from an order of
the McCracken Circuit Court denying his motion to amend its final judgment.
After our review, we affirm.
On April 26, 2012, the McCracken Circuit Court entered an order
following Thomas’s plea of guilty to “Count 1- Murder; Count 2- Tampering with
Physical Evidence; and Count 3 (as amended) -- Theft by Unlawful Taking under
$500” and sentencing Thomas to a total of 25-years’ imprisonment.
On July 15, 2020, Thomas, pro se, filed a motion to amend the final
judgment, asking the McCracken Circuit Court that he be relieved of the remainder
of his sentence pursuant to CR1 60.02(f), CR 60.03, and the Eighth and Fourteenth
Amendments of the United States Constitution. Thomas argued that he was at an
increased risk of contracting COVID-19 due to his incarceration. He claimed that
he is at higher risk of complications if he does contract COVID-19 due to his
underlying medical conditions, which include diabetes, asthma, hypertension,
obesity, and chronic pain syndrome.
In an order entered on August 10, 2020, the trial court denied
Thomas’s motion. The court explained that Kentucky courts have found CR 60.02
motions to be an inappropriate avenue for relief based upon circumstances
unrelated to the trial proceedings, citing Ramsey v. Commonwealth, 453 S.W.3d
738 (Ky. App. 2014), (physical ailments are not trial defects), and Wine v.
Commonwealth, 699 S.W.2d 752 (Ky. App. 1985) (family hardship does not
amount to trial defect or otherwise relate to trial proceedings). Based upon the
same circumstances relating to COVID-19, Thomas alternatively sought relief
under CR 60.03, which “allows for independent actions for ‘relief from a
1
Kentucky Rules of Civil Procedure.
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judgment, order or proceeding on appropriate equitable grounds,’ so long as the
[stated] grounds . . . have not been denied previously under CR 60.02 nor . . . time-
barred by CR 60.02.” The court further explained that a movant seeking CR 60.03
relief must show: that no other remedy is available; that his own fault, neglect or
carelessness did not create the circumstances upon which relief is sought; and that
a recognized ground for the equitable relief -- such as fraud, accident or mistake --
exists, citing Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005).
The trial court concluded as follows:
Movant seeks relief from judgment based upon the
ongoing COVID-19 pandemic, though not claiming to be
suffering from the virus. . . . [T]he relief sought cannot
be granted by CR 60.02 motion, because there is no
alleged error in the underlying trial proceedings or in
pronouncement of the judgment. Likewise, because the
Movant has not presented circumstances sufficient to
warrant vacating the remainder of his sentence as
appropriate equitable relief, the independent action
brought pursuant to CR 60.03 is denied.
Thomas appeals. The standard of our review on appeal is abuse of
discretion.
Whether a Defendant is entitled to the
extraordinary relief provided by CR 60.02 is a matter left
to the “sound discretion of the court and the exercise of
that discretion will not be disturbed on appeal except for
abuse.” Brown v. Commonwealth, 932 S.W.2d 359, 362
(Ky. 1996) (quoting Richardson v. Brunner, 327 S.W.2d
572, 574 (Ky. 1959)). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal
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principles.” Foley v. Commonwealth, 425 S.W.3d 880,
886 (Ky. 2014) (citing Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999) (internal citations omitted)).
Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017). Thomas argues that
the trial court abused its discretion in denying his motion to amend because the
claims he raised meet all requirements under CR 60.02(f), CR 60.03, the Eighth
and Fourteen Amendments to the United States Constitution as well as Sections 2
and 17 of the Kentucky Constitution. We cannot agree.
The Commonwealth draws our attention to Gribbins v.
Commonwealth, No. 2020-CA-0635-MR, 2021 WL 1164461 (Ky. App. Mar. 26,
2021),2 in which this Court addressed a substantially identical argument. Gribbins
requested relief from the remainder of his sentence. He alleged that he was at an
increased risk of contracting COVID-19 due to his incarceration and at an
increased risk of complications due to his immunocompromised condition from
cancer treatment. This Court held that:
Gribbins is not entitled to relief under CR 60.02(f). A
trial court may relieve a party from a final judgment upon
a showing of a “reason of an extraordinary nature
justifying relief.” CR 60.02(f). This rule “functions to
address significant defects in the trial proceedings.”
Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky.
App. 2014) (citing Wine v. Commonwealth, 699 S.W.2d
752, 754 (Ky. App. 1985)). . . .
2
CR 76.28(4) (“[U]npublished Kentucky appellate decisions, rendered after January 1, 2003,
may be cited for consideration by the court if there is no published opinion that would adequately
address the issue before the court.”).
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This Court has determined “results of incarceration” are
not proper considerations under CR 60.02(f). Wine, 699
S.W.2d at 754. Later, in Ramsey, 453 S.W.3d at 739, this
Court held physical ailments are not trial defects and do
not qualify as “claims of an extraordinary nature”
entitling someone to relief under CR 60.02(f). We are
similarly persuaded that Gribbins’ risk of contracting
COVID-19 is not a proper consideration for relief under
CR 60.02(f) because it does not relate to trial
proceedings. Therefore, the trial court did not abuse its
discretion in denying his CR 60.02 motion.
Next, Gribbins’ claim under CR 60.03 must 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. “This rule is intended as an equitable form of
relief when no other avenue exists.” Meece v.
Commonwealth, 529 S.W.3d 281, 295 (Ky. 2017).
Because Gribbins’ argument on the same grounds fails
under CR 60.02(f), it follows that he is also not entitled
to relief under CR 60.03. . . .
Id. at *1-2. For the same reasons, we conclude that Thomas is not entitled to relief
under CR 60.02(f) or CR 60.03 in the case before us.
Thomas also contends that the denial of his motion violates his right
to equal protection under the Fourteenth Amendment. He essentially argues that
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he is not eligible for release due to COVID-19 (unlike non-violent inmates)
because he pled guilty to a violent crime. Although Thomas’s motion to amend
does state that it was filed pursuant to the Fourteenth Amendment, it does not
appear that Thomas raised this argument in the trial court. Accordingly, we may
not consider it for the first time on appeal. Skaggs v. Commonwealth, 488 S.W.3d
10 (Ky. App. 2016).
Thomas also argues that his continued incarceration during the
COVID-19 pandemic would deny him his right to be free from cruel and unusual
punishment under the Eighth Amendment to the United States Constitution.
Another panel of this Court addressed that very issue in Williams v.
Commonwealth, No. 2019-CA-0964-MR, 2021 WL 943753, at *3 (Ky. App. Mar.
12, 2021),3 and held that:
Williams further maintains that his continued
confinement violates the Eighth Amendment prohibition
against cruel and unusual punishment where he is unable
to take sufficient protective action against contracting
COVID-19, given his heightened vulnerability for serious
complications therefrom. While we are not insensitive to
Williams’s concerns, this argument likewise fails because
the claim does not arise from the trial proceedings or the
sentence itself but, rather, from the present conditions of
Williams’s confinement. Conditions of confinement
claims are civil in nature; as such, the sentencing court is
not the proper forum to address them. See, e.g., Ramsey,
453 S.W.3d at 739 (CR 60.02 not the appropriate means
for seeking relief on deprivation of desired medical
3
CR 76.28(4).
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treatment while incarcerated), and KRS[4] 454.415
(inmates raising conditions of confinement claims must
exhaust administrative remedies prior to seeking relief by
civil proceedings). Because we find that the sentencing
court was not the correct forum to raise this claim, the
court did not err in denying relief.
For those same reasons, we also conclude that the trial court did not
err in denying relief in the case before us.
We AFFIRM the order of the McCracken Circuit Court denying
Thomas’s motion to amend the final judgment and sentence.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jerome Thomas, pro se Daniel Cameron
Burgin, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
4
Kentucky Revised Statutes.
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