Gary Dewitt Odom v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 11, 2021
• Docket: 2019 CA 001280
• Status: Unknown

Opinion

RENDERED: MARCH 12, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1280-MR

GARY DEWITT ODOM APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 80-CR-000716

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

CLAYTON, CHIEF JUDGE: Gary DeWitt Odom appeals pro se from the

Jefferson Circuit Court’s order denying his motion for post-conviction relief

pursuant to Kentucky Rule of Civil Procedure (CR) 60.02. For the reasons stated

below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND

In January of 1981, Odom was convicted after a jury trial and

sentenced to fifteen years’ imprisonment for possession of a controlled substance,

two felony counts of receiving stolen property, and second-degree assault. Due to

various parole violations as well as additional federal felony convictions, Odom

has still not served his Kentucky sentence.

In 2018, Odom filed a motion to amend his sentence pursuant to CR

60.02(e) and (f). In his motion, Odom argued that he had been sentenced too

harshly because the original sentencing judge wrongly thought Odom was

responsible for the murder of a police officer. Odom asked for resentencing from

consecutive to concurrent sentencing and release. Odom additionally requested

release because the Department of Corrections and the Parole Board allegedly

miscalculated his sentencing credits and were holding him unlawfully.

On May 13, 2019, the Jefferson Circuit Court entered an order

denying Odom’s CR 60.02 motions. On May 21, 2019, Odom filed a motion for

reconsideration with the trial court requesting that it reconsider its denial of his CR

60.02 motion. Odom did not cite any rule under the Kentucky Rules of Civil

Procedure as the basis of his May 21, 2019 motion for reconsideration. The trial

court summarily denied Odom’s motion for reconsideration on December 2, 2019.

-2- While his motion for reconsideration was pending with the trial court,

Odom also filed a notice of appeal with this Court stating that he was appealing

from the trial court’s May 13, 2019 order denying his CR 60.02 motion. Odom

filed no new notices of appeal after the trial court’s denial of his motion to

reconsider.

ANALYSIS

As a preliminary matter, although he did not designate it as such,

Odom’s motion for reconsideration acted as a timely motion to alter, amend, or

vacate that judgment under CR 59.05, which tolled the time for filing a notice of

appeal. See CR 73.02(1)(e)(i). The notice of appeal became effective as of the

date of the trial court’s decision disposing of his motion for reconsideration and

this appeal is properly before us. Id.

Turning to the applicable law in this case, under CR 60.02, “a court

may, upon such terms as are just, relieve a party . . . from its final judgment, order,

or proceeding[.]” Relief under CR 60.02 is “an extraordinary and residual remedy

to correct or vacate a judgment upon facts or grounds . . . not available by appeal

or otherwise, which were discovered after the rendition of the judgment without

fault of the party seeking relief.” Harris v. Commonwealth, 296 S.W.2d 700, 701

(Ky. 1956). However, a CR 60.02(f) motion must be “made within a reasonable

time.” See CR 60.02. Indeed, “[w]hat constitutes a reasonable time in which to

-3- 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). Moreover, “[a]n evidentiary hearing is not required to assess the reasonable

time restriction inherent in CR 60.02 motions because this determination is left to

the discretion of the [trial] Court.” Stoker v. Commonwealth, 289 S.W.3d 592, 596

(Ky. App. 2009) (citing Gross, 648 S.W.2d at 858).

Here, Odom argues that he is entitled to relief pursuant to CR 60.02

(e) and (f). Considering, however, that over three decades have passed between

the court’s entry of its final judgment and sentence against Odom and Odom’s

filing of his present CR 60.02 motion, we conclude that the trial court did not

abuse its discretion in denying Odom’s CR 60.02 motion as it was not brought

within a “reasonable time.” Id.

CONCLUSION

Because Odom’s CR 60.02 motion was not brought within a

reasonable time, we affirm the Jefferson Circuit Court’s order denying such

motion.

ALL CONCUR.

-4- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Gary DeWitt Odom, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky

Courtney Kay Han Assistant Attorney General Frankfort, Kentucky

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