Derwin Nickelberry v. Commonwealth of Kentucky

RENDERED: APRIL 7, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1348-MR
DERWIN NICKELBERRY APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE LISA P. JONES, JUDGE
ACTION NO. 04-CR-00184-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND MCNEILL, JUDGES.
LAMBERT, JUDGE: Derwin Nickelberry appeals from the Daviess Circuit
Court’s denial of his Kentucky Rule of Civil Procedure (CR) 60.02 motion for
post-conviction relief. We affirm.
In 2004, Nickelberry and a co-defendant were indicted for two counts
of robbery in the first degree and one count of kidnapping. In 2007, a jury
acquitted Nickelberry of one robbery charge but found him guilty of the other, as
well as the kidnapping charge. In accordance with the jury’s recommendation, the
trial court sentenced him to twenty years’ imprisonment for the robbery and
kidnapping convictions, to run consecutively. Our Supreme Court affirmed on
direct appeal. Nickelberry v. Commonwealth, No. 2007-SC-00711-MR, 2009 WL
735881 (Ky. Mar. 19, 2009).
In 2010, Nickelberry filed a motion for relief under Kentucky Rule of
Criminal Procedure (RCr) 11.42, which the trial court denied. We affirmed.
Nickelberry v. Commonwealth, No. 2010-CA-001708-MR, 2012 WL 1137892(Ky. App. Apr. 6, 2012). In 2018, Nickelberry filed what amounted to a second
RCr 11.42 motion. The trial court denied the motion; we again affirmed.
Nickelberry v. Commonwealth, No. 2019-CA-0099-MR, 2021 WL 753061 (Ky.
App. Feb. 26, 2021).
Nickelberry filed the CR 60.02 motion at hand in 2021, asserting he is
entitled to relief pursuant to CR 60.02(b) (newly discovered evidence), (c)
(perjury), (d) (fraud), (e) (void judgment), and (f) (permitting relief for “any other
reason of an extraordinary nature . . .”). The trial court issued a lengthy order
denying the motion without having held a hearing. Particularly relevant to this
appeal, the court stated that Nickelberry had filed a previous motion for CR 60.02
relief in 2015. That motion does not appear in the record before us. The court also
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noted, among other things, that Nickelberry had raised many arguments previously
and the current motion was untimely. Nickelberry then filed this appeal.
“It is within the sound discretion of the trial court whether to grant or
deny relief pursuant to CR 60.02. Thus, we will reverse only upon a finding of an
abuse of that discretion.” Priddy v. Commonwealth, 629 S.W.3d 14, 17 (Ky. App.
2021). An abuse of discretion occurs only if “the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Therefore, we will affirm the lower court’s decision unless there is a showing of
some flagrant miscarriage of justice.” Foley v. Commonwealth, 425 S.W.3d 880,
886 (Ky. 2014) (internal quotation marks and citations omitted).
First, the motion is clearly untimely. Motions seeking relief under CR
60.02(b) and (c) must be made “not more than one year after the judgment, order,
or proceeding was entered or taken.” Nickelberry’s trial was in 2007 and the
opinion affirming on direct appeal was issued in 2009. Nickelberry did not file the
CR 60.02 motion at hand until 2021, so it is plainly untimely to the extent it seeks
relief under CR 60.02(b) or (c).1
1
The trial court mentioned the untimeliness of the motion but also relied on other grounds. We
may use the motion’s obvious tardiness to affirm the denial of relief, even if the trial court relied
upon additional, or different, grounds. See, e.g., Reyna v. Commonwealth, 217 S.W.3d 274, 276
(Ky. App. 2007) (“Although not stated as [a] reason for the denial of his CR 60.02(f) [motion],
the trial court would certainly have been within its discretion had it held that the motion was not
brought within a reasonable time.”). See also McCloud v. Commonwealth, 286 S.W.3d 780, 786
n.19 (Ky. 2009) (“The fact that the trial court’s decision to deny the motion to suppress was
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There is no rigid deadline for seeking relief under CR 60.02(d), (e), or
(f). See, e.g., Priddy, 629 S.W.3d at 18; Gross v. Commonwealth, 648 S.W.2d 853,
858 (Ky. 1983). But, as the trial court noted, Nickelberry raises issues which could
– and should – have been raised previously. Nickelberry filed this motion roughly
fourteen years after the trial, twelve years after our Supreme Court affirmed on
direct appeal, and nine years after we affirmed the denial of his first RCr 11.42
motion. CR 60.02 motions filed with significantly shorter delays have been
deemed untimely. See, e.g., Reyna, 217 S.W.3d at 276 (four-year delay
unreasonable); Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009)
(seven-year delay unreasonable). In sum, notwithstanding Nickelberry’s vehement
arguments to the contrary, the motion is untimely.
Second, the motion is fatally successive. As our Supreme Court
explained, “[a]t each stage . . . the defendant is required to raise all issues then
amenable to review, and generally issues that either were or could have been
raised at one stage will not be entertained at any later stage.” Hollon v.
Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010). Although Nickelberry
disagrees, he has not explained how the trial court erred by concluding that many,
if not all, of the issues presented in this motion could reasonably have been raised
based upon different reasoning . . . does not alter our result because it is well-settled that an
appellate court may affirm a lower court for any reason supported by the record.”).
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in his previous post-conviction motions. Indeed, as the trial court noted,
Nickelberry has previously raised many, if not all, of these same core issues.
Finally, this apparently is Nickelberry’s second CR 60.02 motion.
The filing of multiple CR 60.02 motions is not permitted. Foley, 425 S.W.3d at
884 (“CR 60.02 does not permit successive post-judgment motions . . . .”).2
In sum, Nickelberry’s current motion was filed late and impermissibly
contains issues which were, or reasonably could and should have been, raised
earlier. Owens v. Commonwealth, 512 S.W.3d 1, 14 (Ky. App. 2017) (“A
defendant may not raise under the guise of CR 60.02 issues which could
reasonably have been presented by direct appeal or RCr 11.42 proceedings.”)
(internal quotation marks and citation omitted). Thus, the trial court did not abuse
its discretion by denying the motion without holding a hearing. Gross, 648 S.W.2d
at 858 (“The Court of Appeals held, and we agree, that in the particular facts of
this case, it was not an abuse of discretion to deny the motion without a hearing on
the face of the record, because of the ‘reasonable time’ requirement of CR
60.02.”).
For the foregoing reasons, the Daviess Circuit Court is affirmed.
2
Nickelberry’s first CR 60.02 motion is curiously not in the record before us, but he has not
disputed the trial court’s statement that he filed such a motion in 2015. Also, page one is missing
from the Commonwealth’s brief. Since that page presumably discusses the case’s lengthy
procedural history, its absence impeded our ability to find relevant documents expeditiously in
the voluminous record. We urge the Commonwealth to make sure such an error does not recur.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Derwin I. Nickelberry, pro se Daniel Cameron
La Grange, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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