Allan Andrew Widdifield v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: December 1, 2022
• Docket: 2021 CA 000133
• Status: Unknown

Opinion

RENDERED: DECEMBER 2, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0133-MR

ALLAN WIDDIFIELD APPELLANT

APPEAL FROM HANCOCK CIRCUIT COURT v. HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE ACTION NO. 12-CR-00040

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Allan Widdifield appeals from the Hancock Circuit

Court’s denial of his motion for post-conviction relief under Kentucky Rules of

Civil Procedure (CR) 60.02 and 60.03. We affirm.

In 2013, Widdifield was found guilty by a jury of manufacturing

methamphetamine (firearm enhanced), first-degree trafficking in a controlled

substance (firearm enhanced), unlawful possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine, and

possession of drug paraphernalia (firearm enhanced). In accordance with the

jury’s recommendation, the Hancock Circuit Court sentenced Widdifield to a total

of twenty years’ imprisonment.

The Kentucky Supreme Court affirmed Widdifield’s conviction and

sentence on direct appeal. Widdifield v. Commonwealth, No. 2013-SC-000664-

MR, 2014 WL 4160228 (Ky. Aug. 21, 2014).

In 2016, Widdifield filed a motion for post-conviction relief under

Kentucky Rule of Criminal Procedure (RCr) 11.42, based on allegations of

ineffective assistance of counsel. The trial court denied the motion and we

affirmed. Widdifield v. Commonwealth, Nos. 2016-CA-001514-MR and 2016-CA-

001515-MR, 2018 WL 385540 (Ky.App. Jan. 12, 2018).

In February 2020, Widdifield filed a motion to obtain court records,

asserting he needed them to file another motion for post-conviction relief. The

trial court denied the motion in June 2020, noting that Widdifield had already

unsuccessfully sought relief under RCr 11.42 and, given the nearly seven years

which had elapsed since the trial, any CR 60.02 motion “could not be filed within a

reasonable time.”

In July 2020, Widdifield filed a motion for relief under CR 60.02 and

60.03, seeking to be placed on home incarceration or a similar program due to the

-2- COVID-19 pandemic. In October 2020, the court set a hearing via

audioconference for November 2020. The docket entry for that date merely states

“C 12/22/20 9:30 A” (presumably continued to 12/22/20 at 9:30 a.m.). A notice

was issued setting Widdifield’s motion for a hearing held via audioconference in

December 2020.

After that notice was issued, but before the hearing date, Widdifield

submitted a new CR 60.02 motion based on alleged prosecutorial misconduct.

Specifically, Widdifield alleged the Commonwealth Attorney had: 1) lied about

not knowing the identity of a police officer shown in a photo at Widdifield’s trial;

2) made an impermissible “send a message” argument in closing argument; and 3)

failed to record the entirety of the grand jury proceedings.

On December 22, 2020, the court conducted a telephonic hearing.

Widdifield did not participate. The proceeding contained no witness testimony.

Instead, the Commonwealth asked the court about submitting a written response

and the court responded that the Commonwealth should instead submit a draft

order denying the motion because it was “meritless” as the case had been “going

on and on and on.” After the trial court issued a terse order denying Widdifield’s

motion(s), Widdifield filed this appeal.

Widdifield bears a heavy burden to show an entitlement to relief since

“CR 60.02 is an extraordinary remedy and is available only when a substantial

-3- miscarriage of justice will result from the effect of the final judgment.” Wilson v.

Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). We review the trial court’s

denial of Widdifield’s CR 60.02 motion pursuant to the deferential abuse of

discretion standard. Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014).

Widdifield’s CR 60.02 motion fails because his motion raises issues

which could, and should, have been raised on direct appeal. “Civil Rule 60.02 is

not intended merely as an additional opportunity to relitigate the same issues which

could reasonably have been presented by direct appeal or RCr 11.42 proceedings.”

McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation

marks and citations omitted). In other words, “CR 60.02 is not intended merely as

an additional opportunity to relitigate the same issues which could reasonably have

been presented by direct appeal or an RCr 11.42 proceeding.” Foley, 425 S.W.3d

at 884.

Here, the issues raised by Widdifield involve alleged errors which

occurred either at trial, or earlier. Therefore, there was no barrier preventing them

from being raised within his direct appeal. While the trial court did not explicitly

hold that the allegations in Widdifield’s CR 60.02 motion could have been raised

previously within his direct appeal, we may affirm as it is well-settled that an

appellate court may affirm a lower court for any reason supported by the

record. See, e.g., Kentucky Farm Bureau Mutual Insurance Co. v. Gray, 814

-4- S.W.2d 928, 930 (Ky.App. 1991). Having thus ruled, we need not discuss whether

Widdifield’s motions were filed “within a reasonable time” in accord with CR

60.02.

We also affirm the denial of relief pursuant to CR 60.03. First, “[t]he

plain language of CR 60.03 requires a separate, independent action, which

[Widdifield] did not file.” Jackson v. Commonwealth, 640 S.W.3d 99, 103

(Ky.App. 2022). Second, “[b]ecause his argument is based upon the same core

grounds that failed to satisfy CR 60.02(f), he is not entitled to relief under CR

60.03.” Id.

Lastly, while it appears that Widdifield abandoned his claims relating

to COVID-19, he would not be entitled to relief even had such been argued on

appeal. See, e.g., Martin v. Commonwealth, 639 S.W.3d 433 (Ky. App. 2022).

For the foregoing reasons, the Hancock Circuit Court is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Allan Widdifield, pro se Daniel Cameron Central City, Kentucky Attorney General of Kentucky

Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky

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