RENDERED: MAY 22, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0784-MR
DAVID R. NUNN, JR. APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 13-CR-00191
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND MCNEILL, JUDGES
ECKERLE, JUDGE: Appellant, David R. Nunn, Jr. (“Nunn”), seeks review pro
se, of the Hardin Circuit Court’s Order denying his motion for modification of his
sentence pursuant to Kentucky Rule of Civil Procedure (“CR”) 60.02(f). After
careful review of the record and applicable law, we affirm the Circuit Court’s
Order that Nunn’s 39-year sentence does not violate the statutory cap found in
Kentucky Revised Statute (“KRS”) 532.110(1)(c). Facts and Procedural Background
As the Hardin Circuit Court noted in its Order:
Nunn was indicted in this case on charges of being a Convicted Felon in Possession of a Handgun, Fleeing and Evading 2nd Degree and being a Persistent Felony Offender 1st Degree. After a jury trial Nunn was sentenced, pursuant to the jury’s verdict, to an enhanced 20-year sentence.
Order at 1. Records from the Kentucky Department of Corrections confirm that
Nunn also had multiple prior convictions across Barren, Hardin, and Morgan
counties for Class C and D felonies, which the Commonwealth identified as part of
Trial Record Volume VI (“TR Vol. VI”).1 TR Vol. VI at 667. With the addition
of his 20-year sentence in Hardin County, which was run consecutively with any
prior sentences, the aggregate sentence from Nunn’s multiple convictions was 39
years. Id.
Following his 2013 conviction in Hardin County on the above
charges, Nunn sought review of his judgment on direct appeal in 2015 and in a
post-conviction challenge pursuant to Kentucky Rule of Criminal Procedure
(“RCr”) 11.42 in 2020 without success. After our Supreme Court issued its
1 Although Nunn’s Brief fails to provide an Appendix List or Index as required by Kentucky Rule of Appellate Procedure (“RAP”) 32(E)(1)(d), the documents attached substantially comply with the remainder of RAP 32(E)(1) by providing the Order on appeal first and submitting only documents from the record below or relevant to his indigent filing requirements. Given Nunn’s pro se status and attempts to comply with the RAP overall, we decline to impose sanctions and proceed with review on the merits.
-2- holding in Kimmel v. Commonwealth, Nunn then filed a motion for modification of
his sentence pursuant to CR 60.02(f). 671 S.W.3d 230 (Ky. 2023) (holding that the
sentencing cap applied to sentences across multiple cases). In his motion, Nunn
alleged that his 39-year aggregate sentence violates KRS 532.110(1)(c), because
the cap for his Class C and D felony convictions would be 20 years based on the
language of KRS 532.080 at the time of his sentencing. In its Order, the Circuit
Court concluded that Kimmel did not apply to cases involving sentences from
multiple prior convictions that occurred over a period of several years, in different
counties, and that were sentenced separately in each of the cases. Order at 1.
Accordingly, the Circuit Court denied Nunn’s motion to correct his sentence.2
This appeal followed.
Standard of Review
“[B]ecause the trial court and appellate court have inherent authority
to correct an unlawful sentence at any time,” Kentucky courts have recognized that
CR 60.02 is an appropriate avenue to raise the issue of an alleged illegal sentence.
Commonwealth v. Moore, 664 S.W.3d 582, 590 (Ky. 2023). “The standard of
review of an appeal involving a CR 60.02 motion is whether the trial court abused
its discretion.” White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). “The
2 While the Circuit Court also denied Nunn’s motion for appointment of counsel, Nunn did not raise this issue on appeal. Accordingly, we will not consider this portion of the Circuit Court’s Order.
-3- test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). As our Supreme Court has noted, “[a]
sentence that lies outside the statutory limits is an illegal sentence, and the
imposition of an illegal sentence is inherently an abuse of discretion.”
McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010). However, we
will review de novo the Trial Court’s application of a statute as a matter of law.
Vaughn v. Commonwealth, 371 S.W.3d 784, 785 (Ky. App. 2012).
Analysis
After reviewing Nunn’s arguments and cited precedent, we find no
merit in his contention that the Circuit Court erred in denying his motion to amend
his sentence. Although Nunn asks us to read the plain language of KRS
532.110(1)(c) as barring his 39-year sentence, he also acknowledges that our
Supreme Court has considered the interplay between this statute and KRS 533.060
in multiple reported cases. Appellant Brief at 1. Nunn urges that we consider the
holding in Blackburn v. Commonwealth, in which our Supreme Court found KRS
533.060(2) does not modify the maximum aggregate sentence established in KRS
532.110(1)(c). 394 S.W.3d 395, 401 (Ky. 2011).3 He also argues that, in
3 Nunn also cites an unpublished opinion of our Supreme Court applying the holding from Blackburn. Appellant Brief at 2. Although he notes that the opinion is unpublished, Nunn failed to address it pursuant to RAP 41(A)(4).
-4- combination with our Supreme Court’s holding in Kimmel, this precedent bars the
running of his 20-year sentence as a persistent felony offender consecutively with
his previous sentences for an aggregate sentence in excess of the 20-year
sentencing cap for Class C and D felonies. Appellant Brief at 2-3. Despite Nunn’s
interpretation of KRS 532.110(1)(c) and existing case law, however, our Supreme
Court has clearly rejected the premise that the sentencing cap applies to aggregate
sentences arising from multiple proceedings.
As the Circuit Court noted in reviewing Nunn’s CR 60.02(f) motion,
Kimmel involved multiple sentences arising from the same trial and final judgment.
Order at 1-2. Accordingly, this case is distinguishable from Nunn’s multiple
convictions across a period of years and multiple different counties of the
Commonwealth. While the Circuit Court relied primarily on the holding in
Johnson v. Commonwealth, 553 S.W.3d 213 (Ky. 2018), to support its finding that
the statutory cap did not apply in cases like Nunn’s, our Supreme Court has
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RENDERED: MAY 22, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0784-MR
DAVID R. NUNN, JR. APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 13-CR-00191
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND MCNEILL, JUDGES
ECKERLE, JUDGE: Appellant, David R. Nunn, Jr. (“Nunn”), seeks review pro
se, of the Hardin Circuit Court’s Order denying his motion for modification of his
sentence pursuant to Kentucky Rule of Civil Procedure (“CR”) 60.02(f). After
careful review of the record and applicable law, we affirm the Circuit Court’s
Order that Nunn’s 39-year sentence does not violate the statutory cap found in
Kentucky Revised Statute (“KRS”) 532.110(1)(c). Facts and Procedural Background
As the Hardin Circuit Court noted in its Order:
Nunn was indicted in this case on charges of being a Convicted Felon in Possession of a Handgun, Fleeing and Evading 2nd Degree and being a Persistent Felony Offender 1st Degree. After a jury trial Nunn was sentenced, pursuant to the jury’s verdict, to an enhanced 20-year sentence.
Order at 1. Records from the Kentucky Department of Corrections confirm that
Nunn also had multiple prior convictions across Barren, Hardin, and Morgan
counties for Class C and D felonies, which the Commonwealth identified as part of
Trial Record Volume VI (“TR Vol. VI”).1 TR Vol. VI at 667. With the addition
of his 20-year sentence in Hardin County, which was run consecutively with any
prior sentences, the aggregate sentence from Nunn’s multiple convictions was 39
years. Id.
Following his 2013 conviction in Hardin County on the above
charges, Nunn sought review of his judgment on direct appeal in 2015 and in a
post-conviction challenge pursuant to Kentucky Rule of Criminal Procedure
(“RCr”) 11.42 in 2020 without success. After our Supreme Court issued its
1 Although Nunn’s Brief fails to provide an Appendix List or Index as required by Kentucky Rule of Appellate Procedure (“RAP”) 32(E)(1)(d), the documents attached substantially comply with the remainder of RAP 32(E)(1) by providing the Order on appeal first and submitting only documents from the record below or relevant to his indigent filing requirements. Given Nunn’s pro se status and attempts to comply with the RAP overall, we decline to impose sanctions and proceed with review on the merits.
-2- holding in Kimmel v. Commonwealth, Nunn then filed a motion for modification of
his sentence pursuant to CR 60.02(f). 671 S.W.3d 230 (Ky. 2023) (holding that the
sentencing cap applied to sentences across multiple cases). In his motion, Nunn
alleged that his 39-year aggregate sentence violates KRS 532.110(1)(c), because
the cap for his Class C and D felony convictions would be 20 years based on the
language of KRS 532.080 at the time of his sentencing. In its Order, the Circuit
Court concluded that Kimmel did not apply to cases involving sentences from
multiple prior convictions that occurred over a period of several years, in different
counties, and that were sentenced separately in each of the cases. Order at 1.
Accordingly, the Circuit Court denied Nunn’s motion to correct his sentence.2
This appeal followed.
Standard of Review
“[B]ecause the trial court and appellate court have inherent authority
to correct an unlawful sentence at any time,” Kentucky courts have recognized that
CR 60.02 is an appropriate avenue to raise the issue of an alleged illegal sentence.
Commonwealth v. Moore, 664 S.W.3d 582, 590 (Ky. 2023). “The standard of
review of an appeal involving a CR 60.02 motion is whether the trial court abused
its discretion.” White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). “The
2 While the Circuit Court also denied Nunn’s motion for appointment of counsel, Nunn did not raise this issue on appeal. Accordingly, we will not consider this portion of the Circuit Court’s Order.
-3- test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). As our Supreme Court has noted, “[a]
sentence that lies outside the statutory limits is an illegal sentence, and the
imposition of an illegal sentence is inherently an abuse of discretion.”
McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010). However, we
will review de novo the Trial Court’s application of a statute as a matter of law.
Vaughn v. Commonwealth, 371 S.W.3d 784, 785 (Ky. App. 2012).
Analysis
After reviewing Nunn’s arguments and cited precedent, we find no
merit in his contention that the Circuit Court erred in denying his motion to amend
his sentence. Although Nunn asks us to read the plain language of KRS
532.110(1)(c) as barring his 39-year sentence, he also acknowledges that our
Supreme Court has considered the interplay between this statute and KRS 533.060
in multiple reported cases. Appellant Brief at 1. Nunn urges that we consider the
holding in Blackburn v. Commonwealth, in which our Supreme Court found KRS
533.060(2) does not modify the maximum aggregate sentence established in KRS
532.110(1)(c). 394 S.W.3d 395, 401 (Ky. 2011).3 He also argues that, in
3 Nunn also cites an unpublished opinion of our Supreme Court applying the holding from Blackburn. Appellant Brief at 2. Although he notes that the opinion is unpublished, Nunn failed to address it pursuant to RAP 41(A)(4).
-4- combination with our Supreme Court’s holding in Kimmel, this precedent bars the
running of his 20-year sentence as a persistent felony offender consecutively with
his previous sentences for an aggregate sentence in excess of the 20-year
sentencing cap for Class C and D felonies. Appellant Brief at 2-3. Despite Nunn’s
interpretation of KRS 532.110(1)(c) and existing case law, however, our Supreme
Court has clearly rejected the premise that the sentencing cap applies to aggregate
sentences arising from multiple proceedings.
As the Circuit Court noted in reviewing Nunn’s CR 60.02(f) motion,
Kimmel involved multiple sentences arising from the same trial and final judgment.
Order at 1-2. Accordingly, this case is distinguishable from Nunn’s multiple
convictions across a period of years and multiple different counties of the
Commonwealth. While the Circuit Court relied primarily on the holding in
Johnson v. Commonwealth, 553 S.W.3d 213 (Ky. 2018), to support its finding that
the statutory cap did not apply in cases like Nunn’s, our Supreme Court has
provided a more recent affirmation of that holding in Wynn v. Commonwealth:
Unlike the appellant in Kimmel, Wynn could not have elected to have his multiple felony charges tried together because he had already pled guilty to possession of a firearm by a convicted felon prior to being charged with first-degree bail jumping. That distinction is crucial because the “sentencing cap” statute, KRS 532.110(1)(c), “does not extend to sentences resulting from previous cases,” i.e., those sentences resulting from a “previous indictment and trial.” Johnson v. Commonwealth, 553 S.W.3d 213, 220 (Ky. 2018); Bryant v. Commonwealth,
-5- No. 2023-SC-0218-MR, 2024 WL 3930042 (Ky. Aug. 22, 2024).
713 S.W.3d 122, 133 (Ky. 2025). The Court then further clarified this principle,
noting that the operative question is whether the counts were sentenced together or
separately. Commonwealth v. Strunk, 718 S.W.3d 758, 764 (Ky. 2025) (citing
Goldsmith v. Commonwealth, 363 S.W.3d 330, 334 (Ky. 2012)). After reviewing
this recent precedent, we are not persuaded by Nunn’s argument that KRS
532.110(1)(c) applies to his multiple convictions that were neither tried nor
sentenced together.
Conclusion
Given our Supreme Court’s recent holdings refuting Nunn’s
interpretations of Kimmel and KRS 532.110(1)(c), we find neither error nor abuse
of discretion in the Circuit Court’s conclusion that Nunn’s sentence is not
unlawful. Accordingly, we affirm the Hardin Circuit Court’s denial of his motion
pursuant to CR 60.02(f), as Nunn’s sentence was lawful.
ALL CONCUR.
-6- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
David R. Nunn, Jr., pro se Russell Coleman Burgin, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Solicitor General Frankfort, Kentucky
-7-