James Brewer v. Commonwealth of Kentucky

Opinion

RENDERED: JULY 17, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2024-CA-0703-MR

JAMES D. BREWER APPELLANT

APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE ALISON C. WELLS, JUDGE CASE NO. 15-CR-00127

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND KAREM, JUDGES.

KAREM, JUDGE: James Brewer brings this belated appeal from a Perry Circuit

Court order denying his post-conviction motions. Upon careful review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2017, the Perry Circuit Court entered judgment and

sentence on a jury verdict convicting Brewer of first-degree manslaughter for shooting Robert Miller in the face. Brewer v. Commonwealth, No. 2017-CA-

000667-MR, 2019 WL 5092606, at *1 (Ky. App. Oct. 11, 2019). Brewer was

sentenced to fifteen years’ imprisonment. Id. at *4. The conviction was affirmed

on direct appeal. Id. at *12. The Opinion became final on April 3, 2020.

In May 2020, Brewer moved to vacate, set aside, or amend final

judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(f) and CR

60.03. He sought to be released on the grounds that his various health conditions

made him particularly vulnerable to contracting COVID-19 in prison. He was

appointed counsel who supplemented the motion with Brewer’s medical records

and argued the motion at a hearing. The circuit court denied the motion on July

18, 2020, and Brewer filed a notice of appeal on July 22, 2020.

While the appeal was pending, Brewer, acting pro se, filed the

following:

(1) A criminal complaint against Dr. William Ralston. The

complaint, on AOC Form 315.1, sought to have Dr. Ralston, a witness at Brewer’s

trial, charged with perjury, false swearing, inconsistent statements, and tampering

with physical evidence. The accompanying affidavit alleged that Dr. Ralston was

pressured by Kentucky State Police Detective Joel Abner, the lead investigator in

the case, to alter his initial opinion that Miller died by suicide.

-2- (2) A motion of coram nobis.1 The motion alleged that Brewer’s trial

counsel was suffering from cancer and heavily medicated at the time of the trial,

and that he told Brewer if the case was ever retried, he would be disbarred and

probably brought up on charges himself. It further alleged that the case against

Brewer was malicious prosecution and there was insufficient proof to convict him

of manslaughter.

(3) A motion of Audita Querela – 60.02. The motion sought a

rehearing of Brewer’s case, claiming that he had existing legal defenses available.

It stated:

It is not the judgment nor the sentence that I wish to attack with this Motion but that the sentence is “no longer equitable,” as conditions have drastically changed since original sentencing. I received a fifteen (15) year sentence that could turn into a life sentence, if some sort of relief is not offered for current conditions.

(4) A criminal complaint against KSP Detective Joel Abner. The

complaint, filed on AOC Form 315.1, sought to charge Detective Abner with

tampering with physical evidence, tampering with a witness, intimidating a

witness, and perjury in the first degree. The accompanying affidavit alleged that

Detective Abner coerced the eyewitnesses who testified against Brewer at trial,

failed to process the crime scene properly, and tampered with physical evidence.

1 The common law writ of coram nobis was codified as CR 60.02. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).

-3- The criminal complaint against Dr. Ralston, the motion of coram

nobis, and the motion of Audita Querela – 60.02 were filed on September 21,

2020. The criminal complaint against Detective Abner was filed on November 6,

2020.

The circuit court questioned whether it had jurisdiction to address

these motions and complaints during the pendency of Brewer’s appeal, and it

requested the parties to brief the issue. It ultimately ruled that the notice of appeal

had transferred jurisdiction to the appellate court and, therefore, it would not at that

time take up the motions of coram nobis and Audita Querela – 60.02. With respect

to the criminal complaints against Dr. Ralston and Detective Abner, the court

found that “it cannot take up Criminal Complaints against anyone in this case and

therefore there will be no action taken with regard to any such ‘Criminal

Complaints.’”

Meanwhile, the Department of Public Advocacy withdrew from its

representation of Brewer in the appeal of the first CR 60.02 motion. The appeal

was ultimately dismissed by this Court on June 17, 2021, for Brewer’s failure to

file a brief.

On October 5, 2021, Brewer contends he filed, pro se, a motion

pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, with

accompanying motions for an evidentiary hearing and appointment of counsel.

-4- Apparently, these motions were never entered into the circuit court record. Brewer

sent a letter to the court clerk asking for the motions to be entered, but they do not

appear in the record.

After the order of dismissal was entered in the CR 60.02 appeal, the

circuit court conducted a hearing on Brewer’s outstanding motions. It signed an

order on May 5, 2022, which stated as follows:

This matter having come on for consideration before the Court on March 24, 2022, on various Motions filed by the Defendant, James D. Brewer, pro se, those Motions including a Motion for an Evidentiary Hearing, Motion to Vacate, Set Aside, or Correct Sentence, the Court being aware that similar Motions have previously filed by this Defendant, that there have been no substantial change in circumstances, and the Court being otherwise fully and sufficiently advised . . . [t]he Court declines to have any further hearings herein and the Motions are overruled.

This order was not, however, entered into the record until over two years later, on

May 20, 2024. Brewer filed a motion for a belated appeal, which this Court

granted on December 9, 2024.

Upon reviewing the case for the present appeal, Brewer’s appellate

counsel filed a motion to supplement and correct the record to include the RCr

11.42 motion, but the circuit court had not yet ruled on the motion to supplement at

the time Brewer’s appellant’s brief was submitted in this appeal.

-5- STANDARD OF REVIEW

We review the denial of a CR 60.02 motion for abuse of discretion.

Young v. Richardson, 267 S.W.3d 690, 697–98 (Ky. App. 2008). The test for

abuse of discretion is whether the circuit court’s decision was “arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Absent a “flagrant

miscarriage of justice[,]” we will affirm the trial court. Gross v. Commonwealth,

648 S.W.2d 853, 858 (Ky. 1983).

ANALYSIS

Our analysis is guided by the principles governing post-conviction

criminal appeals and motions. “The structure provided in Kentucky for attacking

the final judgment of a trial court in a criminal case is not haphazard and

overlapping, but is organized and complete. That structure is set out in the rules

related to direct appeals, in RCr 11.42, and thereafter in CR 60.02.” Gross, 648

S.W.2d at 856. CR 60.02 is “for relief that is not available by direct appeal and not

available under RCr 11.42.” Id. “[A] defendant is precluded from raising claims

[under CR 60.02] which were, or reasonably could have been, raised in prior

proceedings.” Berry v. Commonwealth, 624 S.W.3d 119, 121 (Ky. App. 2021).

“CR 60.02 does not permit successive post-judgment motions.” Foley v.

Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014).

-6- We will address individually (i) the two criminal complaints; (ii) the

motion of coram nobis and the motion of Audita Querela – 60.02; and (iii) the RCr

11.42 motion.

i. The Criminal Complaints

Brewer contends the circuit court erred in ruling that it could not take

any action with regard to the criminal complaints, and that it should instead have

treated them as post-conviction motions and addressed them on the merits. He

alludes to the duty of the trial courts to “liberally construe pro se pleadings to

extract the [pro se litigant]’s intent and bring about a full adjudication of the

relevant issues.” Adkins v. Wrightway Readymix, LLC, 499 S.W.3d 286, 289 (Ky.

App. 2016) (quoting Taylor v. Commonwealth, 354 S.W.3d 592, 594 (Ky. App.

2011)).

But the record indicates that at the time Brewer filed the criminal

complaints, he was fully conversant with post-conviction motions. He had already

filed his first CR 60.02 motion, the denial of which was then on appeal, his motion

for Audita Querela – 60.02, and his motion of coram nobis. Rather than including

his claims in these motions, he chose to file complaints on AOC Form 315.1,

seeking specific, enumerated criminal charges against Dr. Ralston and Detective

Abner. Under the circumstances, the circuit court did not abuse its discretion in

accepting that he wanted to press criminal charges against these individuals.

-7- Furthermore, the circuit court did not err in refusing to take any action

regarding these complaints, because the discretion to decide “when and whether to

institute criminal proceedings, or what precise charge shall be made,” belongs with

the executive branch. Hoskins v. Maricle, 150 S.W.3d 1, 20 (Ky. 2004), as

modified on denial of reh’g (Dec. 16, 2004) (citation omitted). “Thus, ‘[a] judge in

our system does not have the authority to tell prosecutors which crimes to

prosecute or when to prosecute them.’” Id. (quoting United States v. Giannattasio,

979 F.2d 98, 100 (7th Cir. 1992)).

ii. The motions of coram nobis and Audita Querela – 60.02

Brewer argues that the circuit court erred in ruling that it lacked

jurisdiction to consider his motions of coram nobis and Audita Querela – 60.02.

He contends that the court did retain jurisdiction over his case and that, by ruling

otherwise, it essentially placed these motions in abeyance pending the conclusion

of his appeal. The argument is moot because the circuit court did eventually rule

on the motions.

Next, he argues that his pro se filings were substantively different

from his prior CR 60.02 motion and consequently the circuit court erred in ruling

they were successive. But the difference in the claims does not resolve the issue,

because “CR 60.02 was never meant to be used as just another vehicle to revisit

issues that should have been included or could have been included in prior requests

-8- for relief.” Foley, 425 S.W.3d at 884 (citation omitted). A review of the claims set

forth in his motions shows that they could have been included in the first CR 60.02

motion or in a motion pursuant to RCr 11.42, and therefore, they were

impermissibly successive.

The allegation that Brewer’s trial counsel was seriously ill and told

him he would probably be disbarred and brought up on charges if the case was

retried is essentially a claim of ineffective assistance of counsel, which could have

been raised pursuant to RCr 11.42. “A defendant who is in custody under sentence

. . . is required to avail himself of RCr 11.42 as to any ground of which he is aware,

or should be aware, during the period when the remedy is available to him.”

McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Brewer’s claim of

malicious prosecution could also have been raised via RCr 11.42 or in his first CR

60.02 motion. The claim that his conviction was not supported by sufficient proof

could have been raised on direct appeal, because “errors occurring during the trial

should be corrected on direct appeal, and the grounds set forth under the various

subsections of CR 60.02 deal with extraordinary situations which do not as a rule

appear during the progress of a trial.” Gross, 648 S.W.2d at 856 (citation omitted).

His motion for Audita Querela – 60.02 which claimed that his

sentence is no longer equitable under the current conditions, is a restatement of the

-9- argument he made in his original CR 60.02 motion. Therefore, it was

impermissibly successive and merely repeated his earlier arguments.

The circuit court did not abuse its discretion in denying these motions.

iii. The RCr 11.42 motion

As previously noted, Brewer’s RCr 11.42 motion is not in the record

before us. According to Brewer’s appellate counsel, she filed a motion in the

circuit court on May 27, 2025, to supplement and correct the record to include the

motion, as well as the accompanying memorandum in support of the motion and

motions for an evidentiary hearing and appointment of counsel. “[I]t is an

unvarying rule that a question not raised or adjudicated in the court below cannot

be considered when raised for the first time in this court.” Ford v. Commonwealth,

709 S.W.3d 203, 204–05 (Ky. 2025). This Court granted Brewer’s motion for a

belated appeal on December 5, 2024, and the record was certified on January 10,

2025. We are unable to consider Brewer’s arguments regarding the RCr 11.42

motion because it was never considered by the trial court and does not form part of

the record on appeal.

CONCLUSION

For the foregoing reasons, the circuit court’s order of May 24, 2024, is

affirmed.

-10- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE

Sarah E. Smalley Russell Coleman Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky J. Grant Burdette Assistant Solicitor General Frankfort, Kentucky

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