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Kirksey v. Commonwealth

Court of Appeals of Kentucky

December 20, 2019



          BRIEF FOR APPELLANT: Jeremy Kirksey, pro se Fredonia, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky.



          LAMBERT, JUDGE:

         Jeremy Kirksey appeals pro se from an order of the Calloway Circuit Court denying his petition for post-conviction relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We affirm the circuit court's judgment.

         The facts and proceedings are summarized as follows: Based upon an informant's tip, police discovered a "shake and bake" methamphetamine lab consisting of a Gatorade bottle containing anhydrous ammonia, an HCL generator, and a bottle of Liquid Fire drain cleaner, along with a red backpack containing blue rubber gloves, two cold packs, and two prescription drugs issued to Kirksey. Kirksey was charged under Kentucky Revised Statutes (KRS) 218A.1432 with manufacturing methamphetamine first offense[1] and with being a first-degree persistent felony offender (PFO) under KRS 532.080(3).

         On November 26, 2012, Kirksey pled guilty in exchange for a recommended sentence of twenty years' imprisonment for manufacturing methamphetamine, dismissal of the first-degree PFO charge, and a recommendation of probation after 154 days served. The circuit court sentenced Kirksey according to the plea deal on December 20, 2012.

         In April 2014, Kirksey violated his probation by driving under the influence and failing a drug test for marijuana. On July 16, 2014, Kirksey's probation was revoked. After completing a drug rehabilitation course, the circuit court granted Kirksey's motion to rescind his revocation, and Kirksey was put back on probation on August 26, 2014. On November 3, 2015, Kirksey's probation was again revoked, this time for violations including possession of marijuana and admitting he had ingested methamphetamine.

         On July 20, 2016, Kirksey's attorney filed a motion to vacate, set aside, or correct his conviction pursuant to CR 59.01(g) and CR 60.02(a)-(b). In support, Kirksey's attorney included two letters from witnesses willing to testify that the Commonwealth's witness Debbie "Big Debb" Moore "is dishonest and likely made false allegations" against Kirksey. Otherwise, the motion was devoid of detail establishing why a new trial under CR 59.01(g) or a corrected conviction under CR 60.02(a) or (b) was warranted.

         On January 19, 2017, the circuit court issued an order summarily denying Kirksey's motions, stating that "CR 60.02 is not the appropriate rule." The circuit court's written order did not address the CR 59.01(g) argument of Kirksey's motion. However, it did elaborate that "[t]he Court considers Defendant's judgment to be final and any further leniency, if any, should be at the discretion of the Parole Board." On November 14, 2017, we issued an order permitting the Department of Public Advocacy (DPA) to withdraw from representing Kirksey and permitting him to proceed pro se. This appeal followed.

         In the court below, Kirksey argued for a new trial. Here, Kirksey's brief reads essentially as a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for ineffective assistance of counsel, disguised as a CR 60.02 motion. Therein, he alleges that his trial counsel promised he would be free to leave on probation the day of sentencing and that trial counsel would get his conviction thrown out. While he was able to go home on probation per the plea agreement, Kirksey alleges trial counsel broke his promise by not getting his conviction overturned.

         However, Kirksey did not raise his ineffective assistance of counsel claim before the circuit court in the ruling he seeks to appeal. "When an issue has not been addressed in the order on appeal, there is nothing for us to review. Our jurisprudence will not permit an appellant to feed one kettle of fish to the trial judge and another to the appellate court." Owens v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017) (footnote omitted) (citing Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012)).

         Further, Kirksey failed to file a motion to vacate, set aside, or correct sentence within the three-year post-judgment time limit for filing such under RCr 11.42(10). Therefore, ineffective assistance of trial counsel is not a properly preserved issue. Rather, the issues before ...

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