Allan Andrew Widdifield v. Commonwealth of Kentucky ( 2022 )

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0133-MR
ALLAN WIDDIFIELD APPELLANT
APPEAL FROM HANCOCK CIRCUIT COURT
v. HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE
ACTION NO. 12-CR-00040
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Allan Widdifield appeals from the Hancock Circuit
Court’s denial of his motion for post-conviction relief under Kentucky Rules of
Civil Procedure (CR) 60.02 and 60.03. We affirm.
In 2013, Widdifield was found guilty by a jury of manufacturing
methamphetamine (firearm enhanced), first-degree trafficking in a controlled
substance (firearm enhanced), unlawful possession of anhydrous ammonia in an
unapproved container with intent to manufacture methamphetamine, and
possession of drug paraphernalia (firearm enhanced). In accordance with the
jury’s recommendation, the Hancock Circuit Court sentenced Widdifield to a total
of twenty years’ imprisonment.
The Kentucky Supreme Court affirmed Widdifield’s conviction and
sentence on direct appeal. Widdifield v. Commonwealth, No. 2013-SC-000664-
MR, 2014 WL 4160228 (Ky. Aug. 21, 2014).
In 2016, Widdifield filed a motion for post-conviction relief under
Kentucky Rule of Criminal Procedure (RCr) 11.42, based on allegations of
ineffective assistance of counsel. The trial court denied the motion and we
affirmed. Widdifield v. Commonwealth, Nos. 2016-CA-001514-MR and 2016-CA-
001515-MR, 2018 WL 385540 (Ky.App. Jan. 12, 2018).
In February 2020, Widdifield filed a motion to obtain court records,
asserting he needed them to file another motion for post-conviction relief. The
trial court denied the motion in June 2020, noting that Widdifield had already
unsuccessfully sought relief under RCr 11.42 and, given the nearly seven years
which had elapsed since the trial, any CR 60.02 motion “could not be filed within a
reasonable time.”
In July 2020, Widdifield filed a motion for relief under CR 60.02 and
60.03, seeking to be placed on home incarceration or a similar program due to the
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COVID-19 pandemic. In October 2020, the court set a hearing via
audioconference for November 2020. The docket entry for that date merely states
“C 12/22/20 9:30 A” (presumably continued to 12/22/20 at 9:30 a.m.). A notice
was issued setting Widdifield’s motion for a hearing held via audioconference in
December 2020.
After that notice was issued, but before the hearing date, Widdifield
submitted a new CR 60.02 motion based on alleged prosecutorial misconduct.
Specifically, Widdifield alleged the Commonwealth Attorney had: 1) lied about
not knowing the identity of a police officer shown in a photo at Widdifield’s trial;
2) made an impermissible “send a message” argument in closing argument; and 3)
failed to record the entirety of the grand jury proceedings.
On December 22, 2020, the court conducted a telephonic hearing.
Widdifield did not participate. The proceeding contained no witness testimony.
Instead, the Commonwealth asked the court about submitting a written response
and the court responded that the Commonwealth should instead submit a draft
order denying the motion because it was “meritless” as the case had been “going
on and on and on.” After the trial court issued a terse order denying Widdifield’s
motion(s), Widdifield filed this appeal.
Widdifield bears a heavy burden to show an entitlement to relief since
“CR 60.02 is an extraordinary remedy and is available only when a substantial
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miscarriage of justice will result from the effect of the final judgment.” Wilson v.
Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). We review the trial court’s
denial of Widdifield’s CR 60.02 motion pursuant to the deferential abuse of
discretion standard. Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014).
Widdifield’s CR 60.02 motion fails because his motion raises issues
which could, and should, have been raised on direct appeal. “Civil Rule 60.02 is
not intended merely as an additional opportunity to relitigate the same issues which
could reasonably have been presented by direct appeal or RCr 11.42 proceedings.”
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation
marks and citations omitted). In other words, “CR 60.02 is not intended merely as
an additional opportunity to relitigate the same issues which could reasonably have
been presented by direct appeal or an RCr 11.42 proceeding.” Foley, 425 S.W.3d
at 884.
Here, the issues raised by Widdifield involve alleged errors which
occurred either at trial, or earlier. Therefore, there was no barrier preventing them
from being raised within his direct appeal. While the trial court did not explicitly
hold that the allegations in Widdifield’s CR 60.02 motion could have been raised
previously within his direct appeal, we may affirm as it is well-settled that an
appellate court may affirm a lower court for any reason supported by the
record. See, e.g., Kentucky Farm Bureau Mutual Insurance Co. v. Gray, 814
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S.W.2d 928, 930 (Ky.App. 1991). Having thus ruled, we need not discuss whether
Widdifield’s motions were filed “within a reasonable time” in accord with CR
60.02.
We also affirm the denial of relief pursuant to CR 60.03. First, “[t]he
plain language of CR 60.03 requires a separate, independent action, which
[Widdifield] did not file.” Jackson v. Commonwealth, 640 S.W.3d 99, 103
(Ky.App. 2022). Second, “[b]ecause his argument is based upon the same core
grounds that failed to satisfy CR 60.02(f), he is not entitled to relief under CR
60.03.” Id.Lastly, while it appears that Widdifield abandoned his claims relating
to COVID-19, he would not be entitled to relief even had such been argued on
appeal. See, e.g., Martin v. Commonwealth, 639 S.W.3d 433 (Ky. App. 2022).
For the foregoing reasons, the Hancock Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Allan Widdifield, pro se Daniel Cameron
Central City, Kentucky Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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