RENDERED: JANUARY 6, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0489-MR
ANDRE SHEPHARD APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE ACTION NO. 04-CR-000354
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON,1 JUDGES.
THOMPSON, K., JUDGE: Andre Shephard, pro se, appeals from the Jefferson
Circuit Court’s denial of his Kentucky Rules of Civil Procedure (CR) 60.02 motion
to vacate his conviction and sentence because his plea was involuntary. We affirm
because his claim is untimely and successive.
1 Judge Kelly Thompson authored this Opinion before his tenure with the Kentucky Court of Appeals expired on December 31, 2022. Release of this Opinion was delayed by administrative handling. On or around January 19, 2004, Teandrea Brown died as a result of
multiple stab wounds. When this occurred, there was a pre-existing no contact
order in place restricting Shephard from having any unlawful contact with Brown.
On January 20, 2004, Shephard was questioned by police during
which he admitted to being with Brown the night before her body was found and
getting into an argument with her. Shephard claimed that during a physical
struggle between him and Brown, she fell onto a knife, and he left her home in a
panic without calling for medical assistance. Shephard told the police that the
knife could be found in a box placed under some Christmas lights, and police
found it there.
On January 29, 2004, Shephard was indicted by a Jefferson County
grand jury for the murder of Brown. Based on Shephard’s violation of the no-
contact order, the Commonwealth filed a notice of aggravating circumstances
indicating it sought to pursue a punishment up to and including the death penalty.
Shephard ultimately pled guilty to murder in exchange for a sentence
of life without parole for twenty-five years. Shephard’s guilty plea was accepted
by the trial court at a hearing on June 22, 2005, during which a plea colloquy was
conducted. Thereafter, the trial court found that Shephard knowingly and
voluntarily entered his plea. Shephard was sentenced in accordance with the plea
agreement by judgment entered on June 23, 2005.
-2- On September 29, 2006, Shephard filed a pro se motion pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42 seeking to vacate his
conviction and sentence on the grounds of ineffective assistance of counsel. The
motion asserted multiple claims, including an unknowing entry of his plea and
inadequate advice as to an extreme emotional disturbance (EED) defense and self-
defense. The trial court denied the motion without conducting an evidentiary
hearing, and this Court affirmed in Shephard v. Commonwealth, No. 2011-CA-
000936-MR, 2012 WL 6632707 (Ky.App. Dec. 21, 2012) (unpublished).
On December 29, 2020, Shephard filed the instant CR 60.02 motion
asserting that his plea was not knowingly and voluntarily made because his
attorney did not sufficiently advise him of an “accidental killing defense.” He
argues his attorney’s incorrect advice concerning the availability of this defense
was demonstrated during his plea colloquy before the trial court, and the trial court
was obligated to correct this and reject the plea as a result. On April 5, 2021, the
motion was denied as untimely, successive, and without merit.
Shephard makes three arguments before this Court asserting error in
the denial of his CR 60.02 motion: (1) due to the unknowing and involuntary entry
of his plea, his judgment is void and not subject to timeliness restrictions; (2) this
issue, which he argues was the fault of the trial court, was precluded from being
raised in his previous post-conviction motion because RCr 11.42 is reserved only
-3- for challenges pertaining to ineffective assistance of counsel; and (3) the trial court
misinterpreted the purpose of his citation to overruled case law used to support the
availability of an “accidental killing defense.”
We review the trial court’s denial of relief under CR 60.02 for abuse
of discretion. Berry v. Commonwealth, 624 S.W.3d 119, 121 (Ky.App. 2021).
“For a trial court to have abused its discretion, its decision must have been
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Grundy
v. Commonwealth, 400 S.W.3d 752, 754 (Ky.App. 2013) (citation omitted).
The crux of Shephard’s appeal is that the judgment imposing his
sentence of imprisonment is void; therefore, he believes that his argument about
his plea being involuntary can be raised at any time. Depending on the specific
grounds asserted, CR 60.02 mandates that a motion be filed no later than one year
after entry of a judgment or order, or alternatively, within a reasonable time.
“What constitutes a reasonable time in which to move to vacate a judgment under
CR 60.02 is a matter that addresses itself to the discretion of the trial court.” Gross
v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
However, void judgments are a legal nullity from their outset and a
court does not have discretion in determining whether they should be set aside.
Cabinet for Health & Family Services ex rel. Child Support Enforcement v. B.N.T.,
651 S.W.3d 745, 751 (Ky. 2022) (citation omitted). While courts are afforded
-4- discretion to determine what constitutes reasonable time under CR 60.02, they are
not afforded the same discretion with respect to void judgments because void
judgments do not gain validity with the passage of time. Id. (citation omitted).
“[T]he generally accepted rule is that where the court has jurisdiction
of parties and subject matter, the judgment, if erroneous, is voidable, not void.”
Puckett v. Cabinet for Health & Fam. Services, 621 S.W.3d 402, 410 (Ky. 2021)
(quoting Dix v. Dix, 310 Ky. 818, 222 S.W.2d 839, 842 (1949)). Judgments
entering a criminal sentence beyond statutorily imposed limitations are to be
deemed void as well. Phon v. Commonwealth, 545 S.W.3d 284, 304 (Ky. 2018).
The issue raised by Shephard on appeal against his judgment does not
implicate any defects with the trial court’s jurisdiction either over him or his
criminal charges, nor does it allege his sentence to be contrary to that allowed
under the applicable statutes. Shephard confuses void judgments with those that
are voidable, and as a result, his request for relief is subject to the timeliness
restrictions of CR 60.02 requiring this action to have, at most, been filed within a
reasonable time.
The trial court noted that Shephard did not raise this claim until fifteen
years after the entry of his judgment and ruled this was not timely. In support of
its ruling, the trial court cited Djoric v. Commonwealth, 487 S.W.3d 908, 910
(Ky.App. 2016), and Reyna v. Commonwealth, 217 S.W.3d 274, 274 (Ky.App.
-5- 2007).
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RENDERED: JANUARY 6, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0489-MR
ANDRE SHEPHARD APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE ACTION NO. 04-CR-000354
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON,1 JUDGES.
THOMPSON, K., JUDGE: Andre Shephard, pro se, appeals from the Jefferson
Circuit Court’s denial of his Kentucky Rules of Civil Procedure (CR) 60.02 motion
to vacate his conviction and sentence because his plea was involuntary. We affirm
because his claim is untimely and successive.
1 Judge Kelly Thompson authored this Opinion before his tenure with the Kentucky Court of Appeals expired on December 31, 2022. Release of this Opinion was delayed by administrative handling. On or around January 19, 2004, Teandrea Brown died as a result of
multiple stab wounds. When this occurred, there was a pre-existing no contact
order in place restricting Shephard from having any unlawful contact with Brown.
On January 20, 2004, Shephard was questioned by police during
which he admitted to being with Brown the night before her body was found and
getting into an argument with her. Shephard claimed that during a physical
struggle between him and Brown, she fell onto a knife, and he left her home in a
panic without calling for medical assistance. Shephard told the police that the
knife could be found in a box placed under some Christmas lights, and police
found it there.
On January 29, 2004, Shephard was indicted by a Jefferson County
grand jury for the murder of Brown. Based on Shephard’s violation of the no-
contact order, the Commonwealth filed a notice of aggravating circumstances
indicating it sought to pursue a punishment up to and including the death penalty.
Shephard ultimately pled guilty to murder in exchange for a sentence
of life without parole for twenty-five years. Shephard’s guilty plea was accepted
by the trial court at a hearing on June 22, 2005, during which a plea colloquy was
conducted. Thereafter, the trial court found that Shephard knowingly and
voluntarily entered his plea. Shephard was sentenced in accordance with the plea
agreement by judgment entered on June 23, 2005.
-2- On September 29, 2006, Shephard filed a pro se motion pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42 seeking to vacate his
conviction and sentence on the grounds of ineffective assistance of counsel. The
motion asserted multiple claims, including an unknowing entry of his plea and
inadequate advice as to an extreme emotional disturbance (EED) defense and self-
defense. The trial court denied the motion without conducting an evidentiary
hearing, and this Court affirmed in Shephard v. Commonwealth, No. 2011-CA-
000936-MR, 2012 WL 6632707 (Ky.App. Dec. 21, 2012) (unpublished).
On December 29, 2020, Shephard filed the instant CR 60.02 motion
asserting that his plea was not knowingly and voluntarily made because his
attorney did not sufficiently advise him of an “accidental killing defense.” He
argues his attorney’s incorrect advice concerning the availability of this defense
was demonstrated during his plea colloquy before the trial court, and the trial court
was obligated to correct this and reject the plea as a result. On April 5, 2021, the
motion was denied as untimely, successive, and without merit.
Shephard makes three arguments before this Court asserting error in
the denial of his CR 60.02 motion: (1) due to the unknowing and involuntary entry
of his plea, his judgment is void and not subject to timeliness restrictions; (2) this
issue, which he argues was the fault of the trial court, was precluded from being
raised in his previous post-conviction motion because RCr 11.42 is reserved only
-3- for challenges pertaining to ineffective assistance of counsel; and (3) the trial court
misinterpreted the purpose of his citation to overruled case law used to support the
availability of an “accidental killing defense.”
We review the trial court’s denial of relief under CR 60.02 for abuse
of discretion. Berry v. Commonwealth, 624 S.W.3d 119, 121 (Ky.App. 2021).
“For a trial court to have abused its discretion, its decision must have been
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Grundy
v. Commonwealth, 400 S.W.3d 752, 754 (Ky.App. 2013) (citation omitted).
The crux of Shephard’s appeal is that the judgment imposing his
sentence of imprisonment is void; therefore, he believes that his argument about
his plea being involuntary can be raised at any time. Depending on the specific
grounds asserted, CR 60.02 mandates that a motion be filed no later than one year
after entry of a judgment or order, or alternatively, within a reasonable time.
“What constitutes a reasonable time in which to move to vacate a judgment under
CR 60.02 is a matter that addresses itself to the discretion of the trial court.” Gross
v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
However, void judgments are a legal nullity from their outset and a
court does not have discretion in determining whether they should be set aside.
Cabinet for Health & Family Services ex rel. Child Support Enforcement v. B.N.T.,
651 S.W.3d 745, 751 (Ky. 2022) (citation omitted). While courts are afforded
-4- discretion to determine what constitutes reasonable time under CR 60.02, they are
not afforded the same discretion with respect to void judgments because void
judgments do not gain validity with the passage of time. Id. (citation omitted).
“[T]he generally accepted rule is that where the court has jurisdiction
of parties and subject matter, the judgment, if erroneous, is voidable, not void.”
Puckett v. Cabinet for Health & Fam. Services, 621 S.W.3d 402, 410 (Ky. 2021)
(quoting Dix v. Dix, 310 Ky. 818, 222 S.W.2d 839, 842 (1949)). Judgments
entering a criminal sentence beyond statutorily imposed limitations are to be
deemed void as well. Phon v. Commonwealth, 545 S.W.3d 284, 304 (Ky. 2018).
The issue raised by Shephard on appeal against his judgment does not
implicate any defects with the trial court’s jurisdiction either over him or his
criminal charges, nor does it allege his sentence to be contrary to that allowed
under the applicable statutes. Shephard confuses void judgments with those that
are voidable, and as a result, his request for relief is subject to the timeliness
restrictions of CR 60.02 requiring this action to have, at most, been filed within a
reasonable time.
The trial court noted that Shephard did not raise this claim until fifteen
years after the entry of his judgment and ruled this was not timely. In support of
its ruling, the trial court cited Djoric v. Commonwealth, 487 S.W.3d 908, 910
(Ky.App. 2016), and Reyna v. Commonwealth, 217 S.W.3d 274, 274 (Ky.App.
-5- 2007). Both cases addressed claims for CR 60.02 relief from guilty pleas argued to
have been entered unknowingly and involuntarily. In Djoric a thirteen-year delay,
and in Reyna a four-year delay, were both deemed unreasonable. We agree with
the trial court’s reasoning.
Additionally, Shephard could have, but failed to file a direct appeal
alleging that his plea was involuntary, or to raise this issue in his previously filed
RCr 11.42 motion. “Our rules of civil procedure do not permit successive motions
or the relitigation of issues which could have been raised in prior proceedings.”
Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky.App. 2009). There is an
organized procedural framework for challenging a final judgment which is
established in rules governing direct appeals, claims brought under RCr 11.42, and
claims brought thereafter under CR 60.02. Gross, 648 S.W.2d at 856. CR 60.02 is
not intended to allow additional opportunities to raise defenses such as those under
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), but
rather, to afford relief not available on direct appeal or under RCr 11.42 after
demonstrating why special, extraordinary relief is warranted. Gross, 648 S.W.2d
at 856.
Shephard provides no explanation for why he did not raise the issue
regarding the involuntariness of his plea earlier. He only offers his
misinterpretation that RCr 11.42 precluded him from raising this issue. See
-6- Commonwealth v. Marcum, 873 S.W.2d 207, 210-11 (Ky. 1994) (“RCr 11.42
encompasses every issue that suffices as reason to vacate a judgment which could
not have been addressed by direct appeal. Such reasons need not be jurisdictional
in nature, nor necessarily such as to render the judgment void or even voidable.”).
Certainly, Shephard could have argued that his counsel was ineffective for failing
to inform him of this potential defense before letting him enter into the plea. As a
result, we also agree with the trial court’s ruling that the motion is successive.
In conclusion, Shephard’s argument that the trial court misconstrued
the purpose of his legal citations offers nothing that would otherwise cure the
untimely and successive nature of this action. Additionally, as it relates to the
merits of any “accidental killing defense,” it was not the burden of the trial court to
offer him legal advice in place of his trial counsel as his brief appears to argue.
Regardless, the record demonstrates during Shephard’s plea colloquy he was
explicitly told that by pleading guilty he would waive the right to present an
accidental killing defense at trial. Moments later he was further informed of the
incriminating evidence that he would face at trial which included his incriminating
statements, and when asked by the trial court if he believed a jury would convict
him, Shephard answered in the affirmative. See Vaughn v. Commonwealth, 258
S.W.3d 435, 439 (Ky.App. 2008) (“In order to be valid, a guilty plea in a criminal
case must represent a meaningful choice between the probable outcome at trial and
-7- the more certain outcome offered by the plea agreement.”). Therefore, even had
this issue been raised in a timely RCr 11.42 motion, it is doubtful Shephard would
have been able to establish either that his plea was involuntary or that he was
prejudiced as a result.
Accordingly, we affirm the order of the Jefferson Circuit Court
denying Shephard’s motion for CR 60.02 relief.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andre Shephard, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky
Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
-8-