Marisa Cunningham v. Commonwealth of Kentucky ( 2023 )

RENDERED: MARCH 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0437-MR
MARISA CUNNINGHAM APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
v. HONORABLE BRIAN WIGGINS, JUDGE
ACTION NOS. 20-CR-00090 AND 21-CR-00007
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
COMBS, JUDGE: Appellant, Marisa Cunningham, pro se, appeals from the denial
of her amended motion to amend final judgment pursuant to Kentucky Rule of
Civil Procedure (CR) 60.02(f) and CR 60.03. After our review, we affirm.
Cunningham is incarcerated at the Kentucky Correctional Institute for
Women. On September 24, 2021, she filed a motion to amend final judgment
pursuant to CR 60.02(f), CR 60.03, and the Eighth and Fourteenth Amendments to
the United States Constitution. In her motion, Cunningham asked the court to
relieve her of the remainder of her sentence on the ground that due to her
incarceration, she was at increased risk of contracting COVID-19. She also noted
that at present, there was not an adequate mechanism for testing inmates and staff
for the virus. Cunningham submitted that if relief could not be granted under CR
60.02, CR 60.03 would provide a sufficient procedural vehicle. Cunningham
argued that her continued incarceration was a cruel and unusual punishment
prohibited under the Eighth and Fourteenth Amendments. She further alleged that
there had been a COVID-19 outbreak at prison; that she was diagnosed with
COPD;1 that she was placed on an inhaler; that she testified positive for COVID-
19; and that on September 10, 2021, she was placed in quarantine.
By order entered October 12, 2021, the trial court denied the motion,
reciting as follows:
The Defendant has filed with the Court a motion to
amend final judgment pursuant to CR 60.02(f) and CR
60.03. However, she has failed to state a claim justifying
the relief she seeks. Reliance on CR 60.03 is misplaced,
as the Defendant’s motion does not constitute an
independent action. Further, the Defendant has not
showed [sic] that she has exhausted her administrative
remedies.
Cunningham did not appeal from this order of October 12, 2021.
1
Chronic obstructive pulmonary disease.
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Approximately five months later, on March 21, 2022, Cunningham
filed another motion, captioned “AMENDED MOTION TO AMEND FINAL
JUDGEMENT, PURSUANT TO CR 60.02, CR 60.03, AND THE EIGHT[H]
AND FOURTEEN AMENDMENTS TO THE UNITED STATES
CONSTITUTION.” (Underline and uppercase original.) Again, Cunningham
argued that due to incarceration, she was at increased risk of contracting COVID-
19. She alleged that as of September 3, 2021, the Kentucky Correctional
Institution for Women was on lockdown due to an outbreak of the virus and that
she had contracted COVID-19 with lasting side effects. She again asserted that
there was not at present an adequate mechanism for testing inmates and staff for
the virus. She submitted that if CR 60.02(f) did not provide a sufficient procedural
vehicle for relief, CR 60.03 would do so; and that her continued incarceration
under the circumstances constituted cruel and unusual punishment prohibited by
the Eighth and Fourteenth Amendments.
By order entered on March 22, 2022, the trial court denied
Cunningham’s motion:
The Defendant has filed with the Court a motion to
amend final judgment pursuant to CR 60.02(f) and CR
60.03. However, she has failed to state a claim justifying
the relief she seeks. Relief under CR 60.02(f) is not
warranted, as the Defendant has cited no circumstance at
her present place of confinement that endangers her
health or safety. Reliance on CR 60.03 is misplaced, as
the Defendant’s motion does not constitute an
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independent action. Finally, the Defendant has not
showed [sic] that she has exhausted her administrative
remedies.
(Emphasis original.)
On April 19, 2022, Cunningham filed notice of appeal from the trial
court’s March 22, 2022, order.
CR 60.02 provides as follows in relevant part:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: . . . (f) any other reason of an extraordinary
nature justifying relief. The motion shall be made within
a reasonable time . . . .
We review the action of a trial court on a CR 60.02 motion for an
abuse of discretion. Ramsey v. Commonwealth, 453 S.W.3d 738 (Ky. App. 2014).
We find no abuse of discretion in the case before us. As this Court explained in
Ramsey:
The crux of [appellant’s] motion was centered on his
illnesses and the medical treatment he hopes to receive
upon release. Upon addressing issues of hardship and
whether they amount to extraordinary relief which would
warrant relief under CR 60.02, this Court has previously
held that the rule specifically functions to address
significant defects in the trial proceedings. Wine v.
Commonwealth, 699 S.W.2d 752, 754 (Ky.App.1985).
In particular, this Court held that family hardships, as a
result of the defendant's incarceration, did not amount to
a “substantial miscarriage of justice,” which could be
remedied by a CR 60.02 motion, but were instead issues
to be considered by a parole board. Id. By extension of
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the Court’s holding in Wine, we thus hold that physical
ailments of a defendant are not tantamount to trial defects
and therefore do not amount to claims of “an
extraordinary nature justifying (CR 60.02) relief.”
Sanders [v. Commonwealth, 339 S.W.3d 427, 437 (Ky.
2011)].
Id. at 739.
Since the trial court duly considered and correctly denied
Cunningham’s CR 60.02 motion, she cannot have recourse to CR 60.03, which
provides that:
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.
Nor has Cunningham demonstrated that she exhausted her
administrative remedies as mandated by KRS2 454.415, which provides that no
action may be filed by an inmate regarding conditions of confinement “until
administrative remedies as set forth in the policies and procedures of the
Department of Corrections, county jail, or other local or regional correctional
facility are exhausted.”
2
Kentucky Revised Statute.
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Moreover, Cunningham’s March 21, 2022, motion, captioned
“amended motion to amend final judgement,” is clearly a successive impermissible
CR 60.02 motion, which is not permitted. “CR 60.02 does not permit successive
post-judgment motions . . . .” Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky.
2014).
Accordingly, the order of the Muhlenberg Circuit Court entered
March 22, 2022, is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Marissa Cunningham, Pro Se Daniel Cameron
Pewee Valley, Kentucky Attorney General of Kentucky
Courtney E. Albini
Assistant Attorney General
Frankfort, Kentucky
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