RENDERED: DECEMBER 19, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1381-MR
CHRISTOPHER JOHNSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE PATRICIA MORRIS, JUDGE ACTION NO. 11-CR-002918-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND ECKERLE, JUDGES.
CALDWELL, JUDGE: Christopher Johnson (“Johnson”) appeals the trial court’s
denial of his CR1 60.02 motion to vacate the prison sentence of thirty-three (33)
years he received following his conviction of Robbery in the First Degree and
1 Kentucky Rules of Civil Procedure. Persistent Felony Offender in the First Degree (“PFO 1”). Having reviewed the
briefs of the parties, the trial court record and orders, and pertinent law, we affirm.
BACKGROUND
When previously examining Johnson’s RCr2 11.42 appeal on this
case, this Court provided a summary of the underlying facts which led to Johnson’s
conviction for First-Degree Robbery and PFO 1 as follows:
For context, Johnson entered a Louisville convenience store, pointed a gun at the clerk and robbed the store of cash, lottery tickets, and cigarettes. He and his girlfriend were arrested a few hours later, after police were alerted to them attempting to cash the stolen lottery tickets. The clerk was unable to positively identify Johnson, but surveillance video captured the entire incident on film. When located by police, Johnson confessed.[3]
Johnson was initially indicted for First-Degree Robbery as well as Complicity to
Commit First-Degree Robbery.4 His girlfriend, Jillian Cabknor, also faced charges
and would be tried in the same jury trial.
At his trial, Johnson testified in his own defense. The Commonwealth
had presented evidence to the jury which included a still photo from security video
2 Kentucky Rules of Criminal Procedure. 3 Johnson v. Commonwealth, No. 2016-CA-001126-MR, 2018 WL 2078028, at *2 (Ky. App. May 4, 2018) (unpublished). 4 Johnson v. Commpnwealth, No. 2012-SC-000650-MR, 2014 WL 2809860, at *3 (Ky. Jun. 19, 2014) (unpublished).
-2- of the robbery upon which Johnson had written “This is me,” and signed his name
to during his confession to police.5 However, Johnson denied to the jury that he
had robbed the convenience store. He testified he had stumbled upon a bag full of
cigarettes, cash, and scratch-off lottery tickets and taken it to the house where he
and Cabknor resided, where they had scratched off the lottery tickets.
Following deliberations, the jury found Johnson guilty of first-degree
robbery and recommended a twenty-year term of imprisonment. The jury
recommended an enhanced sentence of thirty-three years after finding Johnson
guilty of PFO 1. (The jury found Cabknor guilty of receiving stolen property less
than $500.00.)
In an order entered September 7, 2012, the trial court followed the
jury recommendation and sentenced Johnson to thirty-three years of imprisonment.
Johnson appealed as a matter of right and the Kentucky Supreme Court eventually
affirmed the conviction and sentence in 2014.6 There, our Supreme Court
examined two allegations of error Johnson made concerning the trial court’s
instructions to the jury.7 The first concerned Johnson’s allegation that “the trial
court’s jury instruction on first-degree-robbery included superfluous language
5 2014 WL 2809860, at *2. 6 2014 WL 2809860, at *1. 7 2014 WL 2809860, at *1.
-3- about complicity that resulted in a violation of Johnson’s constitutional right to a
unanimous verdict.”8
Thereafter, Johnson filed an RCr 11.42 motion with the trial court
alleging ineffective assistance of counsel. The trial court denied the motion
without granting an evidentiary hearing; this Court affirmed that determination in
May of 2018.9
Subsequently, Johnson filed a petition for a writ of habeas corpus in
the federal district court.10 During the next few years, he pursued post-conviction
relief in incidental proceedings.11
In July of 2022, Johnson filed a new motion with the trial court
seeking post-conviction relief under CR 60.02(f). As grounds for the motion,
Johnson alleged the Commonwealth had engaged in prosecutorial misconduct
during its closing argument at his jury trial. The trial court denied Johnson’s
motion in a handwritten order entered on November 22, 2022.
8 Id. 9 2018 WL 2078028, at *1. 10 Johnson v. Akers, No. 3:20-CV-00414-CHB-LLK, 2020 WL 9421204, at *1 (W.D. Ky. Oct. 7, 2020), report and recommendation adopted, No. 3:20-CV-00414-CHB-LLK, 2021 WL 1700056 (W.D. Ky. Apr. 29, 2021). 11 Johnson v. Akers, No. 21-5548, 2022 WL 1920596, at *3 (6th Cir. Feb. 9, 2022).
-4- The trial judge wrote the order directly onto the final page of
Johnson’s motion in the record. The order noted that Johnson “has already had a
direct appeal & conviction was affirmed.” (Record on Appeal, (“R.”), p. 302.) It
additionally stated that the “[i]ssues raised here existed at that time and were NOT
raised in the appeal and should not be raised for the [first] time in a 60.02 motion.”
Id. (emphasis in original).
Subsequently, Johnson submitted a motion requesting the trial court
amend its prior order to include findings of fact and conclusions of law, citing to
CR 52.02, 52.04, and 59.05. There, he alleged the trial court had “denied
Movant’s motion without enter (sic) findings of facts and conclusions of law as to
the merits of Movant’s claim.” R. at 307.
Thereafter, the trial court again denied Johnson’s 60.02 motion and
restated the grounds from the prior order.12 The order concluded the preceding
judge had correctly ruled “that CR 60.02 does not allow for review of an error that
was alleged to have occurred on the record in open court prior to judgment.” R. at
312. The trial court elaborated that Johnson’s allegations were of misconduct
occurring in open court during the trial; consequently, he should have pursued
remedies through motion at that time or in direct appeal. The order further
12 By this time, a new judge presided over the division of Jefferson Circuit Court which oversaw Johnson’s case.
-5- concluded that denial of a CR 60.02 motion did not require detailed findings from
the trial court.
Johnson now appeals that denial. We affirm. We will discuss further
facts as needed.
ANALYSIS
In this appeal, Johnson argues the trial court erred in denying his CR
60.02(f) motion and in failing to order an evidentiary hearing. Johnson
additionally argues the trial court erred by failing to consider his motion on the
merits of his allegations of prosecutorial misconduct. He contends the
Commonwealth made improper statements during closing arguments, including
comments which amounted to the prosecutor’s personal opinions as to his guilt and
credibility, as well as a statement which improperly encouraged the jury to convict
him for complicity.
The Commonwealth argues the trial court correctly concluded that, as
Johnson could have raised his claims about prosecutorial misconduct in an earlier
proceeding, those claims had been waived.
STANDARD OF REVIEW
The decision whether to grant relief pursuant to CR 60.02 is within
the trial court’s exclusive discretion; we review a trial court’s denial of a CR 60.02
-6- motion for an abuse of that discretion. Priddy v. Commonwealth, 629 S.W.3d 14,
17 (Ky. App. 2021).
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RENDERED: DECEMBER 19, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1381-MR
CHRISTOPHER JOHNSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE PATRICIA MORRIS, JUDGE ACTION NO. 11-CR-002918-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND ECKERLE, JUDGES.
CALDWELL, JUDGE: Christopher Johnson (“Johnson”) appeals the trial court’s
denial of his CR1 60.02 motion to vacate the prison sentence of thirty-three (33)
years he received following his conviction of Robbery in the First Degree and
1 Kentucky Rules of Civil Procedure. Persistent Felony Offender in the First Degree (“PFO 1”). Having reviewed the
briefs of the parties, the trial court record and orders, and pertinent law, we affirm.
BACKGROUND
When previously examining Johnson’s RCr2 11.42 appeal on this
case, this Court provided a summary of the underlying facts which led to Johnson’s
conviction for First-Degree Robbery and PFO 1 as follows:
For context, Johnson entered a Louisville convenience store, pointed a gun at the clerk and robbed the store of cash, lottery tickets, and cigarettes. He and his girlfriend were arrested a few hours later, after police were alerted to them attempting to cash the stolen lottery tickets. The clerk was unable to positively identify Johnson, but surveillance video captured the entire incident on film. When located by police, Johnson confessed.[3]
Johnson was initially indicted for First-Degree Robbery as well as Complicity to
Commit First-Degree Robbery.4 His girlfriend, Jillian Cabknor, also faced charges
and would be tried in the same jury trial.
At his trial, Johnson testified in his own defense. The Commonwealth
had presented evidence to the jury which included a still photo from security video
2 Kentucky Rules of Criminal Procedure. 3 Johnson v. Commonwealth, No. 2016-CA-001126-MR, 2018 WL 2078028, at *2 (Ky. App. May 4, 2018) (unpublished). 4 Johnson v. Commpnwealth, No. 2012-SC-000650-MR, 2014 WL 2809860, at *3 (Ky. Jun. 19, 2014) (unpublished).
-2- of the robbery upon which Johnson had written “This is me,” and signed his name
to during his confession to police.5 However, Johnson denied to the jury that he
had robbed the convenience store. He testified he had stumbled upon a bag full of
cigarettes, cash, and scratch-off lottery tickets and taken it to the house where he
and Cabknor resided, where they had scratched off the lottery tickets.
Following deliberations, the jury found Johnson guilty of first-degree
robbery and recommended a twenty-year term of imprisonment. The jury
recommended an enhanced sentence of thirty-three years after finding Johnson
guilty of PFO 1. (The jury found Cabknor guilty of receiving stolen property less
than $500.00.)
In an order entered September 7, 2012, the trial court followed the
jury recommendation and sentenced Johnson to thirty-three years of imprisonment.
Johnson appealed as a matter of right and the Kentucky Supreme Court eventually
affirmed the conviction and sentence in 2014.6 There, our Supreme Court
examined two allegations of error Johnson made concerning the trial court’s
instructions to the jury.7 The first concerned Johnson’s allegation that “the trial
court’s jury instruction on first-degree-robbery included superfluous language
5 2014 WL 2809860, at *2. 6 2014 WL 2809860, at *1. 7 2014 WL 2809860, at *1.
-3- about complicity that resulted in a violation of Johnson’s constitutional right to a
unanimous verdict.”8
Thereafter, Johnson filed an RCr 11.42 motion with the trial court
alleging ineffective assistance of counsel. The trial court denied the motion
without granting an evidentiary hearing; this Court affirmed that determination in
May of 2018.9
Subsequently, Johnson filed a petition for a writ of habeas corpus in
the federal district court.10 During the next few years, he pursued post-conviction
relief in incidental proceedings.11
In July of 2022, Johnson filed a new motion with the trial court
seeking post-conviction relief under CR 60.02(f). As grounds for the motion,
Johnson alleged the Commonwealth had engaged in prosecutorial misconduct
during its closing argument at his jury trial. The trial court denied Johnson’s
motion in a handwritten order entered on November 22, 2022.
8 Id. 9 2018 WL 2078028, at *1. 10 Johnson v. Akers, No. 3:20-CV-00414-CHB-LLK, 2020 WL 9421204, at *1 (W.D. Ky. Oct. 7, 2020), report and recommendation adopted, No. 3:20-CV-00414-CHB-LLK, 2021 WL 1700056 (W.D. Ky. Apr. 29, 2021). 11 Johnson v. Akers, No. 21-5548, 2022 WL 1920596, at *3 (6th Cir. Feb. 9, 2022).
-4- The trial judge wrote the order directly onto the final page of
Johnson’s motion in the record. The order noted that Johnson “has already had a
direct appeal & conviction was affirmed.” (Record on Appeal, (“R.”), p. 302.) It
additionally stated that the “[i]ssues raised here existed at that time and were NOT
raised in the appeal and should not be raised for the [first] time in a 60.02 motion.”
Id. (emphasis in original).
Subsequently, Johnson submitted a motion requesting the trial court
amend its prior order to include findings of fact and conclusions of law, citing to
CR 52.02, 52.04, and 59.05. There, he alleged the trial court had “denied
Movant’s motion without enter (sic) findings of facts and conclusions of law as to
the merits of Movant’s claim.” R. at 307.
Thereafter, the trial court again denied Johnson’s 60.02 motion and
restated the grounds from the prior order.12 The order concluded the preceding
judge had correctly ruled “that CR 60.02 does not allow for review of an error that
was alleged to have occurred on the record in open court prior to judgment.” R. at
312. The trial court elaborated that Johnson’s allegations were of misconduct
occurring in open court during the trial; consequently, he should have pursued
remedies through motion at that time or in direct appeal. The order further
12 By this time, a new judge presided over the division of Jefferson Circuit Court which oversaw Johnson’s case.
-5- concluded that denial of a CR 60.02 motion did not require detailed findings from
the trial court.
Johnson now appeals that denial. We affirm. We will discuss further
facts as needed.
ANALYSIS
In this appeal, Johnson argues the trial court erred in denying his CR
60.02(f) motion and in failing to order an evidentiary hearing. Johnson
additionally argues the trial court erred by failing to consider his motion on the
merits of his allegations of prosecutorial misconduct. He contends the
Commonwealth made improper statements during closing arguments, including
comments which amounted to the prosecutor’s personal opinions as to his guilt and
credibility, as well as a statement which improperly encouraged the jury to convict
him for complicity.
The Commonwealth argues the trial court correctly concluded that, as
Johnson could have raised his claims about prosecutorial misconduct in an earlier
proceeding, those claims had been waived.
STANDARD OF REVIEW
The decision whether to grant relief pursuant to CR 60.02 is within
the trial court’s exclusive discretion; we review a trial court’s denial of a CR 60.02
-6- motion for an abuse of that discretion. Priddy v. Commonwealth, 629 S.W.3d 14,
17 (Ky. App. 2021).
The Trial Court Did Not Abuse Its Discretion When Denying Johnson’s CR 60.02 Motion.
CR 60.02 was a statutory substitution for and codification of the
common law writ of coram nobis, which allowed for correction or vacating of a
judgment on the basis of “facts or grounds, not appearing on the face of the record
and not available by appeal or otherwise, which were not discovered until after
rendition of judgment without fault of the parties seeking relief.” Davis v. Home
Indemnity Co., 659 S.W.2d 185, 188 (Ky. 1983) (citing Harris v. Commonwealth,
296 S.W.2d 700 (Ky. 1956)). The writ’s purpose was to allow a party to return to
the court that pronounced judgment and present “errors in matter of fact” which:
(1) had not been put into issue or passed on, (2) were unknown and could not have been known to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court, or (3) which the party was prevented from so presenting by duress, fear, or other sufficient cause. Black’s Law Dictionary, Fifth Edition, 487, 144.
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (quoting Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983)).
Where a movant could demonstrate “conditions which established that
the original trial was tantamount to none at all because a miscarriage of justice had
effectually deprived the defendant of life or property without due process of
-7- law[,]” coram nobis made available the remedy of a new trial. Harris, 296 S.W.2d
at 702 (citations omitted).
The substitution of CR 60.02 for the common law writ did not expand
the breadth of available relief or the grounds for its availability. See Harris, 296
S.W.2d at 702 (“CR 60.02 does not extend the scope of the remedy nor add
additional grounds of relief.”). As with the writ of coram nobis, CR 60.02 does not
offer a party an additional opportunity to raise claims he or she might have raised
by direct appeal or an RCr 11.42 motion. Gross, 648 S.W.2d at 857. Instead, the
rule exclusively provides for “relief that is not available by direct appeal and not
available under RCr 11.42.” Id. at 856. Accordingly, the only issues a movant
may raise are those which could not have been raised in the other proceedings,
with “[t]he obvious purpose” of this “principle” being “to prevent the relitigation
of issues which either were or could have been litigated in a similar proceeding.”
McQueen, 948 S.W.2d at 416.
Johnson nowhere alleges any factual matter which was unknown or
hidden from him at the time of his prior appeals. He does not dispute the finding
of the trial court that he only alleged misconduct in the form of on-the-record
statements made during closing arguments at trial. Furthermore, Johnson made no
allegation of any circumstances which prevented him from pursuing his claims of
prosecutorial misconduct during trial or prior appeals.
-8- We discern no abuse of discretion in the trial court’s conclusion that,
because Johnson had opportunities to raise his claims of error during the trial or in
prior appeals, the requested relief under CR 60.02(f) was unavailable to him.
Where the allegation of error is one of law that would be ordinarily subject to
review on direct appeal, “CR 60.02 may not be invoked as an alternate method of
review.” Wimsott v. Haydon Oil Co., 414 S.W.2d 908, 910 (Ky. 1967) (citations
omitted). Rather, “CR 60.02 allows appeals based upon claims of error that were
unknown and could not have been known to the moving party by exercise of
reasonable diligence and in time to have been otherwise presented to the court.”
Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (internal quotation
marks and citation omitted).
If, through the exercise of reasonable diligence, a movant could have
raised claims of error in either a direct appeal or an RCr 11.42 proceeding, he or
she is precluded from pursuing those claims in a subsequent CR 60.02 proceeding.
Sanders, 339 S.W.3d at 437. By failing to allege circumstances that rendered him
unable to present his allegations in earlier proceedings, Johnson failed to
demonstrate that his claims qualified for CR 60.02 relief.
No Error in Denial of Evidentiary Hearing
Johnson’s failure to offer any explanation as to why he was unable to
present the issues here in prior appeals or why the motion was made within a
-9- reasonable time are glaring absences among an overarching failure to allege the
special circumstances required for CR 60.02 relief. Accordingly, Johnson’s
argument that the trial court erred by declining to hold an evidentiary hearing on
the merits of his claim likewise fails. “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 (quoting Gross, 648 S.W.2d at 856).
We find no abuse of discretion in the trial court’s decision that Johnson was not
entitled to an evidentiary hearing.
In sum, we determine no reversible error in the denial of Johnson’s
CR 60.02 motion without an evidentiary hearing. We decline to address the
Commonwealth’s alternative argument regarding timeliness as unnecessary to our
resolution of this appeal.
CONCLUSION
For the aforementioned reasons, we discern no abuse of discretion in
the trial court’s denial of Johnson’s CR 60.02 motion. We affirm.
ALL CONCUR.
-10- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher Johnson, pro se Russell Coleman Beattyville, Kentucky Attorney General of Kentucky
Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
-11-