Brian A. Queen Sr. v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 22, 2020
• Docket: 2018 CA 001490
• Status: Unknown

Opinion

RENDERED: OCTOBER 23, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2018-CA-1490-MR

BRIAN A. QUEEN, SR. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE ACTION NO. 12-CR-003073

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Brian A. Queen, Sr., pro se, brings this appeal from an

August 21, 2018, order of the Jefferson Circuit Court denying his Kentucky Rules

of Civil Procedure (CR) 60.02 motion to vacate his final judgment of

imprisonment. We affirm.

On February 18, 2012, appellant robbed a BB&T Bank in Louisville,

Kentucky. He was indicted by the Jefferson County Grand Jury on October 8, 2012. Appellant ultimately entered a guilty plea and on April 17, 2014, the circuit

court sentenced appellant to a total of ten-years’ imprisonment upon his guilty plea

to first-degree robbery, tampering with physical evidence, and two counts of first-

degree fleeing or evading police. Because of the first-degree robbery conviction,

appellant was classified as a violent offender and was required to serve 85 percent

of his sentence before being considered parole eligible.

Some three years later, on August 17, 2018, appellant, pro se, filed a

CR 60.02 motion seeking to have the court amend his first-degree robbery

conviction to second-degree robbery. Appellant pointed out that he never directly

threatened anyone with a gun during the robbery. By amending his conviction to

second-degree robbery, appellant believed he would become parole eligible.

By order entered August 21, 2018, the circuit court denied the CR

60.02 motion. This appeal follows.

A CR 60.02 motion is an extraordinary remedy only available to

remedy a “substantial miscarriage of justice[.]” Wilson v. Commonwealth, 403

S.W.2d 710, 712 (Ky. 1966). CR 60.02 reads:

On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than

-2- perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.

And, we review the circuit court’s denial of a CR 60.02 motion for abuse of

discretion. Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009).

Appellant contends that he was entitled to CR 60.02 relief because the

violent offender statute (Kentucky Revised Statutes (KRS) 439.3401) is

unconstitutional. He argues that KRS 439.3401 is unconstitutionally vague and

violates separation of powers by permitting the judicial branch to determine parole

eligibility.

We begin by pointing out that appellant did not allege that KRS

439.3401 was unconstitutional in his CR 60.02 motion before the circuit court.

Instead, he raises this argument for the first time on appeal; thus, he is only entitled

to relief if the error was palpable per Kentucky Rules of Criminal Procedure (RCr)

10.26.

Appellant has failed to demonstrate that KRS 439.3401 is

unconstitutional. As opposed to appellant’s contention, KRS 439.3401 does not

-3- empower the judicial branch to determine parole eligibility. Rather, the parole

board will determine whether to grant appellant parole after he serves 85% of his

sentence of imprisonment. Additionally, we believe KRS 439.3401 is reasonably

clear so as not to be vague as to its terms. Hence, we conclude that KRS 439.3401

is not unconstitutional.

Appellant also argues that the circuit court improperly categorized

him as a violent offender under KRS 439.3401. A plain reading of KRS

439.3401(1) reveals that a defendant who has been convicted of or pleaded guilty

to first-degree robbery is a violent offender. It is undisputed that appellant pleaded

guilty to first-degree robbery and was properly classified as a violent offender

under KRS 439.3401(1).

Accordingly, we conclude that appellant failed to demonstrate

palpable error and that the circuit court did not abuse its discretion by denying

appellant’s CR 60.02 motion.

For the foregoing reasons, the order of the Jefferson Circuit Court is

affirmed.

ALL CONCUR.

-4- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Brian A. Queen, Sr., Pro Se Andy Beshear Lexington, Kentucky Attorney General of Kentucky

Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky

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