RENDERED: JUNE 3, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1204-MR
DAVID CAMPBELL APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT v. HONORABLE CLARENCE A. WOODALL, III, JUDGE ACTION NO. 05-CR-00033-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: David Campbell, pro se, brings this appeal from an August
16, 2020, order of the Livingston Circuit Court denying his motion pursuant to
Kentucky Rules of Civil Procedure (CR) 60.02, CR 60.03, Kentucky Rules of
Criminal Procedure (RCr) 10.02, RCr 10.26, and the Eighth and Fourteenth
Amendments to the United States Constitution. We affirm. In 2006, Campbell entered a guilty plea to 16 counts of second-degree
rape, 16 counts of second-degree sodomy, 16 counts of incest, 16 counts of first-
degree sexual abuse, possession of a handgun by a convicted felon, and 4 counts of
possession of a firearm by a convicted felon.1 By final judgment entered June 19,
2006, Campbell was sentenced to a total of forty-years’ imprisonment.
On July 27, 2020, Campbell filed a motion pursuant to CR 60.02, CR
60.03, RCr 10.02, and RCr 10.26 seeking to be released from incarceration2
because of COVID-19. Therein, Campbell asserted that due to his preexisting
medical conditions the potential of COVID-19 exposure was a direct threat to his
health. Campbell further asserted that incarceration during the COVID-19
pandemic violated his rights under the Eighth Amendment and the Fourteenth
Amendment of the United States Constitution. The circuit court denied
Campbell’s motion by order entered August 16, 2020. This appeal follows.
Campbell initially asserts that the circuit court erred by denying his
motion, pursuant to CR 60.02, CR 60.03, RCr 10.02, and RCr 10.26, for relief
from the June 19, 2006, final judgment imposing the forty-year sentence of
imprisonment. We will address entitlement to relief under each rule.
1 David Campbell pleaded guilty to numerous counts of rape, sodomy, incest, and sexual abuse related to acts he committed against his step-daughter, who was less than fourteen years of age. 2 At the time Campbell filed his motion seeking release from incarceration, he was housed at Luther Luckett Correctional Complex.
-2- Our standard of review upon a motion brought pursuant to CR 60.02
and CR 60.03 is an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83,
86 (Ky. App. 2000). An abuse of discretion occurs if “the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014). Constitutional
questions are reviewed de novo. Phon v. Commonwealth, 545 S.W.3d 284, 290
(Ky. 2018).
CR 60.02
CR 60.02 generally “functions to address significant defects in the
trial proceedings.” Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. App.
2014) (citing Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985)).
Campbell, however, is not alleging any defect or error related to the prosecution of
his case or his sentence of imprisonment. Rather, Campbell maintains that he
should be entitled to release from his forty-year sentence of imprisonment because
of his increased risk of complications if he were exposed to COVID-19. Campbell
asserts that had he known about COVID-19 he would not have entered into the
guilty plea in 2006. Regardless, Campbell has not alleged any defect in the trial
process. And, as recently determined by this Court, the risks inmates face with
COVID-19 “are not trial defects and do not qualify as ‘claims of an extraordinary
nature’ entitling someone to relief under CR 60.02(f).” Jackson v. Commonwealth,
-3- 640 S.W.3d 99, 102 (Ky. App. 2022) (quoting Ramsey, 453 S.W.3d at 739).
Therefore, Campbell is not entitled to relief pursuant to CR 60.02 from his forty-
year sentence of imprisonment, and the circuit court did not err in denying same.
CR 60.03
CR 60.03 provides, in relevant part, that “[CR] 60.02 shall not limit
the power of any court to entertain an independent action to relieve a person from a
judgment[.]” In other words, CR 60.03 provides that an independent action may
be utilized as an avenue to obtain relief from a final judgment. As Campbell has
not pursued an independent action to challenge the denial of relief from his forty-
year sentence of imprisonment, the court did not err in denying him relief under
CR 60.03. Furthermore, similar arguments by inmates pursuant to CR 60.03
regarding COVID-19 have been rejected. See Jackson, 640 S.W.3d at 102; Martin
v. Commonwealth, 639 S.W.3d 433, 437 (Ky. App. 2022). Thus, we reject
Campbell’s argument that the circuit court erred by denying him CR 60.03 relief.
RCr 10.02
RCr 10.02(1) provides, in relevant part, that upon the motion of a
defendant, the trial “court may grant a new trial for any cause which prevented the
defendant from having a fair trial[.]” By its very terms, RCr 10.02 is limited in
scope to the granting of a new trial. As the relief requested by Campbell is related
to the conditions of his incarceration, a new trial pursuant to RCr 10.02 is not the
-4- proper avenue for relief. Accordingly, we summarily affirm the circuit court’s
denial of Campbell’s requested relief pursuant to RCr 10.02.
RCr 10.26
RCr 10.26 provides, in relevant part, that:
[a] palable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
To begin, RCr 10.26 is a mechanism to obtain relief from an
unpreserved palpable error which affects the substantial rights of a party where a
manifest injustice has occurred. RCr 10.26 does not provide a procedural
mechanism for filing an independent motion thereunder. Thus, RCr 10.26 is not
the appropriate avenue for the relief Campbell is seeking from the conditions of his
incarceration. As such, we do not believe the circuit court erred by denying
Campbell’s request for relief under RCr 10.26.
Eighth and Fourteenth Amendments
As to Campbell’s allegations under the Eighth and Fourteenth
Amendments to the United States Constitution, this Court recently addressed the
propriety of similar COVID-19 claims and rejected same. In Martin v.
Commonwealth, 639 S.W.3d 433 (Ky. App. 2022), this Court specifically refused
such relief stating:
-5- Regardless, we have rejected similar COVID-19-based claims and do so here again, for the same fundamental reasons.
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RENDERED: JUNE 3, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1204-MR
DAVID CAMPBELL APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT v. HONORABLE CLARENCE A. WOODALL, III, JUDGE ACTION NO. 05-CR-00033-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: David Campbell, pro se, brings this appeal from an August
16, 2020, order of the Livingston Circuit Court denying his motion pursuant to
Kentucky Rules of Civil Procedure (CR) 60.02, CR 60.03, Kentucky Rules of
Criminal Procedure (RCr) 10.02, RCr 10.26, and the Eighth and Fourteenth
Amendments to the United States Constitution. We affirm. In 2006, Campbell entered a guilty plea to 16 counts of second-degree
rape, 16 counts of second-degree sodomy, 16 counts of incest, 16 counts of first-
degree sexual abuse, possession of a handgun by a convicted felon, and 4 counts of
possession of a firearm by a convicted felon.1 By final judgment entered June 19,
2006, Campbell was sentenced to a total of forty-years’ imprisonment.
On July 27, 2020, Campbell filed a motion pursuant to CR 60.02, CR
60.03, RCr 10.02, and RCr 10.26 seeking to be released from incarceration2
because of COVID-19. Therein, Campbell asserted that due to his preexisting
medical conditions the potential of COVID-19 exposure was a direct threat to his
health. Campbell further asserted that incarceration during the COVID-19
pandemic violated his rights under the Eighth Amendment and the Fourteenth
Amendment of the United States Constitution. The circuit court denied
Campbell’s motion by order entered August 16, 2020. This appeal follows.
Campbell initially asserts that the circuit court erred by denying his
motion, pursuant to CR 60.02, CR 60.03, RCr 10.02, and RCr 10.26, for relief
from the June 19, 2006, final judgment imposing the forty-year sentence of
imprisonment. We will address entitlement to relief under each rule.
1 David Campbell pleaded guilty to numerous counts of rape, sodomy, incest, and sexual abuse related to acts he committed against his step-daughter, who was less than fourteen years of age. 2 At the time Campbell filed his motion seeking release from incarceration, he was housed at Luther Luckett Correctional Complex.
-2- Our standard of review upon a motion brought pursuant to CR 60.02
and CR 60.03 is an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83,
86 (Ky. App. 2000). An abuse of discretion occurs if “the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014). Constitutional
questions are reviewed de novo. Phon v. Commonwealth, 545 S.W.3d 284, 290
(Ky. 2018).
CR 60.02
CR 60.02 generally “functions to address significant defects in the
trial proceedings.” Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. App.
2014) (citing Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985)).
Campbell, however, is not alleging any defect or error related to the prosecution of
his case or his sentence of imprisonment. Rather, Campbell maintains that he
should be entitled to release from his forty-year sentence of imprisonment because
of his increased risk of complications if he were exposed to COVID-19. Campbell
asserts that had he known about COVID-19 he would not have entered into the
guilty plea in 2006. Regardless, Campbell has not alleged any defect in the trial
process. And, as recently determined by this Court, the risks inmates face with
COVID-19 “are not trial defects and do not qualify as ‘claims of an extraordinary
nature’ entitling someone to relief under CR 60.02(f).” Jackson v. Commonwealth,
-3- 640 S.W.3d 99, 102 (Ky. App. 2022) (quoting Ramsey, 453 S.W.3d at 739).
Therefore, Campbell is not entitled to relief pursuant to CR 60.02 from his forty-
year sentence of imprisonment, and the circuit court did not err in denying same.
CR 60.03
CR 60.03 provides, in relevant part, that “[CR] 60.02 shall not limit
the power of any court to entertain an independent action to relieve a person from a
judgment[.]” In other words, CR 60.03 provides that an independent action may
be utilized as an avenue to obtain relief from a final judgment. As Campbell has
not pursued an independent action to challenge the denial of relief from his forty-
year sentence of imprisonment, the court did not err in denying him relief under
CR 60.03. Furthermore, similar arguments by inmates pursuant to CR 60.03
regarding COVID-19 have been rejected. See Jackson, 640 S.W.3d at 102; Martin
v. Commonwealth, 639 S.W.3d 433, 437 (Ky. App. 2022). Thus, we reject
Campbell’s argument that the circuit court erred by denying him CR 60.03 relief.
RCr 10.02
RCr 10.02(1) provides, in relevant part, that upon the motion of a
defendant, the trial “court may grant a new trial for any cause which prevented the
defendant from having a fair trial[.]” By its very terms, RCr 10.02 is limited in
scope to the granting of a new trial. As the relief requested by Campbell is related
to the conditions of his incarceration, a new trial pursuant to RCr 10.02 is not the
-4- proper avenue for relief. Accordingly, we summarily affirm the circuit court’s
denial of Campbell’s requested relief pursuant to RCr 10.02.
RCr 10.26
RCr 10.26 provides, in relevant part, that:
[a] palable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
To begin, RCr 10.26 is a mechanism to obtain relief from an
unpreserved palpable error which affects the substantial rights of a party where a
manifest injustice has occurred. RCr 10.26 does not provide a procedural
mechanism for filing an independent motion thereunder. Thus, RCr 10.26 is not
the appropriate avenue for the relief Campbell is seeking from the conditions of his
incarceration. As such, we do not believe the circuit court erred by denying
Campbell’s request for relief under RCr 10.26.
Eighth and Fourteenth Amendments
As to Campbell’s allegations under the Eighth and Fourteenth
Amendments to the United States Constitution, this Court recently addressed the
propriety of similar COVID-19 claims and rejected same. In Martin v.
Commonwealth, 639 S.W.3d 433 (Ky. App. 2022), this Court specifically refused
such relief stating:
-5- Regardless, we have rejected similar COVID-19-based claims and do so here again, for the same fundamental reasons. Gribbins, 2021 WL 1164461, at *2-3 (holding that the Kentucky Department of Corrections was not indifferent to the health needs of prisoners); Williams, 2021 WL 943753, at *3 (holding that Eighth Amendment claims involve the conditions of the movant’s confinement and thus are civil claims which are not properly brought in the sentencing court); Morris, 2021 WL 1933656, at *2 (holding that Eighth and Fourteenth Amendment conditions of confinement claims must be raised in civil actions by naming the warden of the movant’s institution as a named party and, in any event, success on those claims would not result in the claimant being released from incarceration).
Id. at 436-37 (footnote omitted). In sum, if Campbell wishes to pursue claims that
the Eighth and Fourteenth Amendments were violated by the conditions of his
confinement, he may do so in a civil action. Therefore, we do not believe the
circuit court erred by denying Campbell’s motion seeking release from
incarceration pursuant to violation of the Eighth and Fourteenth Amendments.
In conclusion, while we are sympathetic to Campbell’s concerns
regarding COVID-19 exposure, the pandemic does not entitle him to post-
conviction relief under CR 60.02, CR 60.03, RCr 10.02, RCr 10.26, or the Eighth
and Fourteenth Amendments. See Martin, 639 S.W.3d at 437.
Evidentiary Hearing
Campbell also maintains that he was entitled to an evidentiary hearing
upon his motion seeking release from incarceration due to potential COVID-19
-6- exposure. As we have determined Campbell was not entitled to the relief
requested, we cannot say that the circuit court erred by not granting him an
evidentiary hearing.
We deem any other contentions of error to be moot or without merit.
For the foregoing reasons, the August 16, 2020, order of the
Livingston Circuit Court denying Campbell relief pursuant to CR 60.02, CR 60.03,
RCr 10.02 and RCr 10.26 is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
David Campbell, Pro Se Daniel Cameron LaGrange, Kentucky Attorney General of Kentucky Frankfort, Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-7-