RENDERED: MAY 16, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0354-MR
ALAN BARNETT APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 14-CR-00375
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, L. JONES, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Acting pro se, Alan Barnett appeals from the Kenton Circuit
Court’s denial of his second motion for postconviction relief under Kentucky Rule
of Civil Procedure (CR) 60.02. We affirm.
In 2014, Barnett was indicted for sodomy in the first degree, sodomy
in the second degree, and two counts of sexual abuse in the first degree. In 2016,
Barnett and the Commonwealth reached a plea agreement which called for Barnett to plead guilty to sodomy in the first degree, for which he would be sentenced to
seventeen years’ imprisonment, and the remaining charges would be dismissed.
The trial court accepted Barnett’s guilty plea and ordered the preparation of a
presentence investigation report (PSI).
Later in 2016, the trial court conducted a sentencing hearing. The
court asked Barnett’s counsel if she and Barnett had reviewed the PSI; counsel
responded affirmatively. The court then asked whether Barnett wished to make
any corrections to that document; counsel responded negatively. Barnett said
nothing to indicate he disagreed. The court then sentenced Barnett to seventeen
years’ imprisonment, as per the plea agreement.
In 2021, Barnett filed his first CR 60.02 motion, arguing his
conviction was void because his court-appointed counsel had an excessive
caseload, which Barnett characterized as having perpetuated a fraud upon the
court. The trial court concluded the motion was untimely and that Barnett should
have raised the claims earlier in a motion brought under Kentucky Rule of
Criminal Procedure (RCr) 11.42. Finally, the court held that Barnett had not
shown actionable fraud. We affirmed. Barnett v. Commonwealth, No. 2021-CA-
1452-MR, 2023 WL 1870899 (Ky. App. Feb. 10, 2023) (unpublished).
In June 2023, Barnett submitted the CR 60.02 motion at hand. The
gist of the motion is Barnett’s assertion that his conviction is void because the PSI
-2- contains errors, such as whether Barnett’s relationship with his mother was
estranged and whether he served in the Job Corps. Barnett also again asserts he is
entitled to relief due to the high caseload of his appointed counsel.
Later in 2023, the trial court denied Barnett’s motion. The court
concluded the motion was not brought within a reasonable time and Barnett had
not shown an entitlement to CR 60.02 relief. After the trial court denied Barnett’s
motion to alter, amend, or vacate, he filed this appeal.
“It is within the sound discretion of the trial court whether to grant or
deny relief pursuant to CR 60.02[,]” so our review is pursuant to the abuse of
discretion standard. Priddy v. Commonwealth, 629 S.W.3d 14, 17 (Ky. App.
2021). “The test for abuse of discretion is whether 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).
Here, we discern no abuse of discretion in the trial court’s conclusion
that Barnett did not submit his motion within a reasonable time, as required by CR
60.02. Of course, “there is no specific prescribed time within which claims made
pursuant to CR 60.02(e) or (f) must be filed.” Priddy, 629 S.W.3d at 18. But,
without adequate explanation, Barnett waited over six years after his sentencing to
-3- submit this second CR 60.02 motion. The trial court did not abuse its discretion in
concluding this motion was not filed within a reasonable time. See, e.g., Reyna v.
Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (four-year delay
unreasonable); Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009)
(seven-year delay unreasonable). As we affirmed the trial court’s conclusion that
Barnett’s first CR 60.02 motion was untimely, the untimeliness of this second CR
60.02 motion – which is not based on newly discovered evidence – is readily
apparent.
Barnett’s motion is also procedurally improper because it contains
allegations which he could, and should, have raised sooner. 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). Thus, “CR 60.02 is not a separate avenue of
appeal to be pursued in addition to other remedies, but is available only to raise
issues which cannot be raised in other proceedings.” McQueen v. Commonwealth,
948 S.W.2d 415, 416 (Ky. 1997). For example, our Supreme Court has expressed
a strong preference for ineffective assistance of counsel claims to be raised via RCr
11.42. Furnish v. Commonwealth, 95 S.W.3d 34, 52 (Ky. 2002) (holding that
ineffective assistance of counsel claims “are not properly raised on direct appeal,
-4- but rather must proceed by way of a post-trial motion under RCr 11.42”). Thus,
Barnett’s claims that his attorney was ineffective are procedurally improper.
Barnett has not shown that he was unable to raise the alleged errors in
the PSI sooner, either in a motion brought under RCr 11.42 or in his first CR 60.02
motion. Barnett knew, or reasonably should have known, about any errors in the
PSI long ago.
Additionally, Barnett’s motion is fatally successive. “CR 60.02 does
not permit successive post-judgment motions[.]” Foley, 425 S.W.3d at 884.
Barnett has not shown why he could not have raised the issues in this motion in his
first CR 60.02 motion. “[C]ourts are not required to entertain a second or
successive motion for similar relief from the same prisoner.” Reado v.
Commonwealth, 408 S.W.2d 438, 438 (Ky. 1966). See also, e.g., Cardwell v.
Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011) (declining to address
arguments raised in a successive CR 60.02 motion because “[o]ur case law has
long held that we will not consider successive motions to vacate a conviction when
those motions recite grounds for relief that have been or should have been raised
earlier”). Indeed, we have already affirmed the trial court’s rejection of Barnett’s
claims about his counsel’s caseload. Barnett, 2023 WL 1870899.
Finally, Barnett is not entitled to relief even if we leniently review his
claims on the merits.
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RENDERED: MAY 16, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0354-MR
ALAN BARNETT APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 14-CR-00375
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, L. JONES, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Acting pro se, Alan Barnett appeals from the Kenton Circuit
Court’s denial of his second motion for postconviction relief under Kentucky Rule
of Civil Procedure (CR) 60.02. We affirm.
In 2014, Barnett was indicted for sodomy in the first degree, sodomy
in the second degree, and two counts of sexual abuse in the first degree. In 2016,
Barnett and the Commonwealth reached a plea agreement which called for Barnett to plead guilty to sodomy in the first degree, for which he would be sentenced to
seventeen years’ imprisonment, and the remaining charges would be dismissed.
The trial court accepted Barnett’s guilty plea and ordered the preparation of a
presentence investigation report (PSI).
Later in 2016, the trial court conducted a sentencing hearing. The
court asked Barnett’s counsel if she and Barnett had reviewed the PSI; counsel
responded affirmatively. The court then asked whether Barnett wished to make
any corrections to that document; counsel responded negatively. Barnett said
nothing to indicate he disagreed. The court then sentenced Barnett to seventeen
years’ imprisonment, as per the plea agreement.
In 2021, Barnett filed his first CR 60.02 motion, arguing his
conviction was void because his court-appointed counsel had an excessive
caseload, which Barnett characterized as having perpetuated a fraud upon the
court. The trial court concluded the motion was untimely and that Barnett should
have raised the claims earlier in a motion brought under Kentucky Rule of
Criminal Procedure (RCr) 11.42. Finally, the court held that Barnett had not
shown actionable fraud. We affirmed. Barnett v. Commonwealth, No. 2021-CA-
1452-MR, 2023 WL 1870899 (Ky. App. Feb. 10, 2023) (unpublished).
In June 2023, Barnett submitted the CR 60.02 motion at hand. The
gist of the motion is Barnett’s assertion that his conviction is void because the PSI
-2- contains errors, such as whether Barnett’s relationship with his mother was
estranged and whether he served in the Job Corps. Barnett also again asserts he is
entitled to relief due to the high caseload of his appointed counsel.
Later in 2023, the trial court denied Barnett’s motion. The court
concluded the motion was not brought within a reasonable time and Barnett had
not shown an entitlement to CR 60.02 relief. After the trial court denied Barnett’s
motion to alter, amend, or vacate, he filed this appeal.
“It is within the sound discretion of the trial court whether to grant or
deny relief pursuant to CR 60.02[,]” so our review is pursuant to the abuse of
discretion standard. Priddy v. Commonwealth, 629 S.W.3d 14, 17 (Ky. App.
2021). “The test for abuse of discretion is whether 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).
Here, we discern no abuse of discretion in the trial court’s conclusion
that Barnett did not submit his motion within a reasonable time, as required by CR
60.02. Of course, “there is no specific prescribed time within which claims made
pursuant to CR 60.02(e) or (f) must be filed.” Priddy, 629 S.W.3d at 18. But,
without adequate explanation, Barnett waited over six years after his sentencing to
-3- submit this second CR 60.02 motion. The trial court did not abuse its discretion in
concluding this motion was not filed within a reasonable time. See, e.g., Reyna v.
Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (four-year delay
unreasonable); Graves v. Commonwealth, 283 S.W.3d 252, 257 (Ky. App. 2009)
(seven-year delay unreasonable). As we affirmed the trial court’s conclusion that
Barnett’s first CR 60.02 motion was untimely, the untimeliness of this second CR
60.02 motion – which is not based on newly discovered evidence – is readily
apparent.
Barnett’s motion is also procedurally improper because it contains
allegations which he could, and should, have raised sooner. 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). Thus, “CR 60.02 is not a separate avenue of
appeal to be pursued in addition to other remedies, but is available only to raise
issues which cannot be raised in other proceedings.” McQueen v. Commonwealth,
948 S.W.2d 415, 416 (Ky. 1997). For example, our Supreme Court has expressed
a strong preference for ineffective assistance of counsel claims to be raised via RCr
11.42. Furnish v. Commonwealth, 95 S.W.3d 34, 52 (Ky. 2002) (holding that
ineffective assistance of counsel claims “are not properly raised on direct appeal,
-4- but rather must proceed by way of a post-trial motion under RCr 11.42”). Thus,
Barnett’s claims that his attorney was ineffective are procedurally improper.
Barnett has not shown that he was unable to raise the alleged errors in
the PSI sooner, either in a motion brought under RCr 11.42 or in his first CR 60.02
motion. Barnett knew, or reasonably should have known, about any errors in the
PSI long ago.
Additionally, Barnett’s motion is fatally successive. “CR 60.02 does
not permit successive post-judgment motions[.]” Foley, 425 S.W.3d at 884.
Barnett has not shown why he could not have raised the issues in this motion in his
first CR 60.02 motion. “[C]ourts are not required to entertain a second or
successive motion for similar relief from the same prisoner.” Reado v.
Commonwealth, 408 S.W.2d 438, 438 (Ky. 1966). See also, e.g., Cardwell v.
Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011) (declining to address
arguments raised in a successive CR 60.02 motion because “[o]ur case law has
long held that we will not consider successive motions to vacate a conviction when
those motions recite grounds for relief that have been or should have been raised
earlier”). Indeed, we have already affirmed the trial court’s rejection of Barnett’s
claims about his counsel’s caseload. Barnett, 2023 WL 1870899.
Finally, Barnett is not entitled to relief even if we leniently review his
claims on the merits. The trial court gave Barnett, via counsel, the opportunity to
-5- object to the PSI at sentencing. Barnett has not explained adequately why he did
not then inform the court of any errors in the PSI instead of remaining silent when
counsel stated there were no errors Barnett wished to correct.
Moreover, Barnett simply has not shown how alleged errors in his PSI
have caused him to suffer any specific prejudice. The trial court sentenced Barnett
to the term of imprisonment discussed in the plea agreement, so no potential error
in the PSI negatively impacted Barnett’s sentence. Moreover, none of the alleged
errors in the PSI Barnett mentions would negate his criminal conduct or invalidate
either his guilty plea or sentence. Finally, Barnett has not shown how any alleged
errors in the PSI have negatively impacted the conditions of his imprisonment.
“[A] CR 60.02 movant must demonstrate why he is entitled to this
special, extraordinary relief. Before the movant is entitled to an evidentiary
hearing, he must affirmatively allege facts which, if true, justify vacating the
judgment and further allege special circumstances that justify CR 60.02 relief.”
McQueen, 948 S.W.2d at 416 (internal quotation marks and citation omitted). CR
60.02 “requires a very substantial showing to merit relief under its provisions.”
Ringo v. Commonwealth, 455 S.W.2d 49, 50 (Ky. 1970). Barnett has not made a
satisfactory showing of an entitlement to CR 60.02 relief. Therefore, the trial court
did not abuse its discretion by denying Barnett’s CR 60.02 motion without first
holding an evidentiary hearing.
-6- For the foregoing reasons, the Kenton Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Alan Barnett, pro se Russell Coleman West Liberty, Kentucky Attorney General of Kentucky
Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
-7-