FROM CALLOWAY CIRCUIT COURT HONORABLE JAMES T. JAMESON, JUDGE
ACTION NO. 12-CR-00131
FOR APPELLANT: Jeremy Kirksey, pro se Fredonia, Kentucky.
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
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.
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 and with being a
first-degree persistent felony offender (PFO) under KRS
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.
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16, 2014, Kirksey's probation was revoked.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.
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)
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
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.
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)).
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 ...