James David Adkins v. Commonwealth of Kentucky

RENDERED: FEBRUARY 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0024-MR
JAMES DAVID ADKINS APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
v. HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE
ACTION NO. 06-CR-00051
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
JONES, JUDGE: James David Adkins appeals from the Ohio Circuit Court’s
order entered on December 3, 2020, which denied his motion for postconviction
relief. Having reviewed the record and being otherwise sufficiently advised, we
affirm the trial court to the extent it denied Adkins’s relief pursuant to CR1 60.02.
However, the substance of Adkins’s motion also alleged a colorable claim to relief
1
Kentucky Rules of Civil Procedure.
pursuant to RCr2 10.10, an issue the trial court did not address. Accordingly, we
vacate the trial court’s order to the extent it denied relief pursuant to RCr 10.10,
and remand for further consideration of whether Adkins’s final judgment and
sentence contains a clerical error which affects the length and/or terms of his
sentence.
I. BACKGROUND
A thorough recitation of the facts of this case may be found in our
unpublished opinion affirming Adkins’s convictions stemming from the trial
court’s denial of Adkins’s motion to withdraw his guilty plea. Adkins v.
Commonwealth, No. 2009-CA-000575-MR, 2010 WL 4879581 (Ky. App. Nov.
12, 2010). Briefly stated, Adkins was indicted by an Ohio County grand jury for
“two counts of first-degree rape, two counts of first-degree unlawful transaction
with a minor, twenty counts of promoting a sexual performance by a minor, and
twenty counts of use of a minor in a sexual performance.” Id. at *1. On the
morning of his trial, Adkins negotiated a plea with the Commonwealth in which he
agreed to plead guilty to two counts of first-degree unlawful transaction with a
minor and five counts of second-degree unlawful transaction with a minor in
exchange for the Commonwealth recommending Adkins serve a sentence of fifteen
years’ imprisonment for these offenses. Id. Prior to his final sentencing, Adkins
2
Kentucky Rules of Criminal Procedure.
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moved pro se to withdraw his guilty plea, arguing the plea was involuntary. The
trial court denied the motion, and Adkins appealed. We affirmed the trial court’s
denial of Adkins’s motion to withdraw his guilty plea. Id. at *2.
Adkins subsequently began seeking postconviction relief from his
judgment and sentence. He initially filed a pro se motion for relief with the trial
court under RCr 11.42, asserting inter alia that he received ineffective assistance
of counsel, that the judge should have disqualified himself from the RCr 11.42
proceedings, and once again claiming that his guilty plea was not entered
knowingly and voluntarily. The trial court denied relief, and we affirmed. Adkins
v. Commonwealth, No. 2012-CA-000212-MR, 2014 WL 631516 (Ky. App. Feb.
14, 2014).
In 2014, Adkins petitioned the federal court in the Western District of
Kentucky for a writ of habeas corpus pursuant to 28 U.S.C.3 § 2254. The district
court denied the petition, and the Sixth Circuit denied Adkins’s request for a
certificate of appealability. Adkins thereafter moved the trial court pro se to vacate
its order modifying custody credit on his sentence. The trial court denied the
motion. On appeal, we vacated the order and remanded for reinstatement of the
original award of custody credit as reflected in the final judgment. Adkins v.
3
United States Code.
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Commonwealth, No. 2013-CA-001369-MR, 2016 WL 1739693 (Ky. App. Apr. 29,
2016).
Again acting without the assistance of counsel, Adkins moved the trial
court for postconviction relief under CR 60.02, arguing inter alia his guilty plea
was induced by illegally seized evidence. The trial court denied his motion, and
we affirmed, citing the untimeliness and improperly successive nature of Adkins’s
claims. Adkins v. Commonwealth, No. 2018-CA-000286-MR, 2019 WL 5854034(Ky. App. Nov. 8, 2019).
Finally, on April 6, 2020, Adkins filed the pro se motion giving rise to
this appeal, which he styled “Motion to Correct Sentencing Errors And / Or for the
Modification of Sentence.” The motion is unfocused, and Adkins asserts a variety
of claims, including that he was unaware of the consequence of sex offender
registration when he entered his plea. This allegation is refuted by the record.
However, Adkins also asserted that he was improperly sentenced to a five-year
conditional discharge period after release, when the law at the time of his offense
required only a three-year conditional discharge period. Adkins also claimed the
trial court’s final judgment contained an error, asserting Adkins had been
convicted of unlawful transaction with a minor under sixteen years of age, when he
actually pleaded guilty to unlawful transaction with a minor under eighteen years
of age. The trial court interpreted Adkins’s motion as another attempt for relief
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under CR 60.02 and consequently denied the motion as untimely and successive in
its written order entered on December 3, 2020. This appeal followed.
II. ANALYSIS
“We review the denial of a CR 60.02 motion for an abuse of
discretion.” Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing
Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). “The burden of proof in a CR 60.02
proceeding falls squarely on the movant to affirmatively allege facts which, if true,
justify vacating the judgment and further allege special circumstances that justify
CR 60.02 relief.” Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014)
(internal quotation marks and citations omitted). “[W]e will affirm the lower
court’s decision unless there is a showing of some ‘flagrant miscarriage of
justice.’” Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.
1983)).
The trial court denied Adkins’s petition as time-barred and successive.
To the extent that Adkins brought claims properly falling under CR 60.02, the trial
court did not abuse its discretion. First, CR 60.02(e) and (f), the most flexible
provisions of the rule regarding timeliness, still require the movant to bring the
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petition within “a reasonable time.” “What constitutes a reasonable time in which
to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the
discretion of the trial court.” Gross, 648 S.W.2d at 858. The Kentucky Supreme
Court has affirmed a trial court’s denial of a CR 60.02 motion as untimely when
filed five years post-judgment. Id. Similarly, this Court has reasoned that denial
of a CR 60.02 motion filed four years post-judgment would be within a trial court’s
discretion. Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007).
Adkins entered his guilty plea in 2008, and we affirmed the trial court in his first
appeal more than ten years ago. The trial court did not abuse its discretion when it
determined the petition was untimely under CR 60.02.
We also agree with the trial court that the motion was successive.
“CR 60.02 does not permit successive post-judgment motions, and the rule 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 (citing McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997)). The record reflects that
Adkins has previously filed motions under RCr 11.42 and CR 60.02. To the extent
that Adkins raises issues regarding the voluntariness of his guilty plea and whether
he knew of the requirement to register as a sex offender, among other similar
issues, the trial court properly denied the current motion as successive. Adkins
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either raised or could have raised these issues in his previous efforts, and they do
not merit the extraordinary relief which may be granted under CR 60.02.
However, with the aid of counsel, Adkins narrowed the focus of his
appellate brief to the issue of whether the trial court “erroneously entered a final
judgment different than what Mr. Adkins agreed to during his plea colloquy.”4
(Appellant’s Brief at 5.) On November 5, 2008, in the form titled
“Commonwealth’s Offer on Plea of Guilty,” Adkins agreed to plead guilty to two
counts of first-degree unlawful transaction with a minor which were specifically
designated as “Class C” felonies. (Record (R.) at 171.) KRS 530.064(2)(a) states,
“Unlawful transaction with a minor in the first degree is a . . . Class C felony if the
minor so used is less than eighteen (18) years old at the time the minor engages in
the prohibited activity[.]”5 The next day, the trial court accepted Adkins’s plea,
and its written order reflected the plea offer and the corresponding portion of the
statute, adjudging Adkins guilty of first-degree unlawful transaction with a minor
under eighteen years of age. (R. at 174.) However, in what the court termed its
4
The appellant’s brief also raised the issue of whether Adkins was erroneously sentenced to five
years of conditional discharge rather than the three years required by Kentucky Revised Statute
(KRS) 532.043 at the time of his offense. However, the parties agreed in subsequent briefing
that the trial court had corrected the order to reflect only three years of conditional discharge,
making this issue moot. Accordingly, we decline to consider this issue on appeal; see Young v.
U.S. Bank, Inc., 343 S.W.3d 618, 622 (Ky. App. 2011).
5
Although KRS 530.064 has been amended multiple times since Adkins signed the plea
agreement in 2008, the statute consistently views unlawful transaction with a minor under
eighteen as the Class C felony version of the offense.
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“Formal Sentencing Order,” entered several months later, the trial court stated
Adkins was convicted of unlawful transaction with a minor under sixteen years of
age. (R. at 214.)
Adkins now contends the trial court entered a final judgment different
than that to which he agreed in his plea. Properly labeled, this is not a motion
under CR 60.02 at all, but a request to correct a clerical error under RCr 10.10.6
Clerical mistakes in judgments, orders or other parts of
the record and errors therein arising from oversight or
omission may be corrected by the court at any time on its
own initiative or on the motion of any party and after
such notice, if any, as the court orders. During the
pendency of an appeal, such mistakes may be so
corrected before the appeal is perfected in the appellate
court, and thereafter while the appeal is pending may be
so corrected with leave of the appellate court.
Id. For its part, the Commonwealth contends the trial court did not abuse its
discretion in denying the motion based on timeliness. We agree the CR 60.02
issues presented to the trial court were properly denied, but there is nothing in the
trial court’s order denying Adkins’s motion which specifically addresses the
apparent mistake in the trial court’s final judgment order. Since such mistakes
may be corrected by the trial court “at any time,” timeliness is not a bar to the
extent Adkins sought relief pursuant to RCr 10.10.
6
The language of RCr 10.10 is virtually identical to that of CR 60.01.
-8-
The Commonwealth also argues Adkins did not properly preserve the
issue because his pro se motion failed to mention the words “clerical mistake” or
cite to RCr 10.10. We disagree. Adkins’s motion, though perhaps inartful,
specifically complained that he was sentenced to unlawful transaction with a minor
under sixteen years of age when he pleaded guilty to unlawful transaction with a
minor under eighteen years of age. (R. at 35, 37.) Although Adkins may not have
cited the rule, the substance of his motion clearly indicated that the basis of his
motion was a clerical error in his sentence insomuch as the final judgment did not
reflect the actual charges to which he pleaded guilty.
“The failure to accurately reduce to writing the trial court’s intended
sentence, a sentence which was evident from a review of the videotaped record and
made known to both parties at the sentencing hearing, was a clerical error.” Davis
v. Commonwealth, 620 S.W.3d 16, 32 (Ky. 2021) (quoting Machniak v.
Commonwealth, 351 S.W.3d 648, 654 (Ky. 2011)). The Commonwealth has
conceded that, if one were to review the merits of Adkins’s argument, “it does
appear the plea agreement intended for the two counts of first-degree unlawful
transaction with a minor to be . . . Class C felon[ies]” indicating the “under 18
years of age designation.” (Commonwealth’s Brief at 7.)
Despite the Commonwealth’s concession on the underlying
substantive issue, we cannot review the merits of the putative clerical error at this
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time because “[t]he Court of Appeals is without authority to review issues not
raised in or decided by the trial court.” Regional Jail Authority v. Tackett, 770
S.W.2d 225, 228 (Ky. 1989). However, a trial court must make “sufficient
findings of fact and conclusions of law to provide meaningful review.” Patmon v.
Hobbs, 495 S.W.3d 722, 727 (Ky. App. 2016). Here, although the trial court used
its sound discretion to deny issues cognizable under CR 60.02, the trial court did
not address whether Adkins’s final judgment contains a clerical error under RCr
10.10. The proper remedy in this case is for us to vacate the trial court’s denial of
relief with respect to the alleged clerical error and remand for further consideration
of whether Adkins is entitled to relief under RCr 10.10. Should the trial court
determine that a clerical error occurred in reducing Adkins’s guilty plea and
sentence to writing, it should amend his sentence to correct any such error.
III. CONCLUSION
For the foregoing reasons, we affirm the Ohio Circuit Court’s order
denying relief for all claims in the motion properly falling under CR 60.02. We
vacate the denial to the extent the trial court’s order failed to address Adkins’s
claim that the final judgment contains a clerical error insomuch as it does not
comport with the terms of Adkins’s guilty plea as related to the age of the victim.
On remand, the trial court should determine whether Adkins’s final judgment and
sentence requires correction pursuant to RCr 10.10.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
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