James Savage v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: February 22, 2024
• Docket: 2023 CA 000831
• Status: Unknown

Opinion

RENDERED: FEBRUARY 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0831-MR

JAMES C. SAVAGE APPELLANT

APPEAL FROM MUHLENBERG CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NOS. 07-CR-00174 AND 08-CR-00022

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE, JUDGES.

EASTON, JUDGE: In his fifth appeal on these cases, the Appellant (“Savage”)

insists the circuit court erred in denying his latest CR1 60.02 motion. We review

the circuit court’s decision on such a motion for an abuse of discretion. Brown v.

1 Kentucky Rules of Civil Procedure. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). Finding no legal error or other

abuse of discretion, we affirm.

Savage committed an armed robbery at a pharmacy. This crime

impacted the lives of seven employees. This was not Savage’s first armed robbery.

See Savage v. Commonwealth, 920 S.W.2d 512 (Ky. 1995). After this latest

robbery, Savage escaped from incarceration while receiving treatment at a dentist’s

office. Although facing a potential total of seventy years or a life sentence for his

crimes, Savage negotiated for a total sentence of 25 years, close to the minimum

possible.

Savage’s prior four appeals have all been unsuccessful: No. 2009-

CA-000353-MR, 2010 WL 1926382 (Ky. App. 2010) (denial of RCr2 11.42

motion); No. 2013-CA-001335-MR, 2014 WL 4377899 (Ky. App. 2014) (denial of

claim of illegal sentence, explaining that the twenty-five year sentence did not

involve a sentence for PFO3 as a separate offense but was rather an enhancement);

No. 2014-CA-000440-MR, 2014 WL 7206829 (Ky. App. 2015) (the required

adding of two years to parole eligibility due to escape conviction was proper); No.

2014-CA-001855-MR, 2015 WL 5648538 (Ky. App. 2015) (later correction of

clerical error in count numbers in judgment imposing sentence was proper).

2 Kentucky Rules of Criminal Procedure. 3 Persistent Felony Offender.

-2- A CR 60.02 motion may not be used to relitigate issues which “were

or could have been litigated” in prior proceedings. McQueen v. Commonwealth,

948 S.W.2d 415, 416 (Ky. 1997). As this Court has explained to Savage before,

CR 60.02 does not authorize multiple bites of the same apple. Savage has tried to

suggest new issues, but this is illusory.

For example, Savage appears to now question his sentencing based on

his prior felony record. There is no question that Savage was a PFO 1st offender.

In addition to his prior armed robbery, he committed a subsequent felony involving

contraband while in prison. See Savage v. Commonwealth, No. 2005-CA-000839-

MR, 2006 WL 1291738 (Ky. App. 2006). Asserting a new take on his arguments

about an illegal sentence, Savage argues the Commonwealth could not use a felony

for his status with respect to the possession of a handgun and also use the same

felony for his PFO status.

To support this argument, which certainly could have been raised in

his prior motions, Savage cites a case4 which had been overruled even before he

entered his guilty plea. A felony used to establish the felon status for the handgun

charge can also be used to establish the PFO status so long as the handgun charge

was not again enhanced with the PFO status based on the same felony used for the

4 Boulder v. Commonwealth, 610 S.W.2d 615 (Ky. App. 1980), overruled by Dale v. Commonwealth, 715 S.W.2d 227 (Ky. 1986).

-3- handgun charge. Dale v. Commonwealth, 715 S.W.2d 227 (Ky. 1986) (involving

felon in possession of handgun and robbery convictions like the present case). Not

only was Savage’s handgun sentence not PFO enhanced, but he also received the

minimum sentence of five years for that crime.

Relying on Duncan v. Commonwealth, 640 S.W.3d 84 (Ky. App.

2021), Savage thinks he has the right to a new review because his first supposedly

illegal sentence was void ab initio. Duncan involved a sentence which exceeded

the maximum allowed by statute. Savage’s case does not. A case Savage cites

shows that, even with such an illegal sentence, the remedy is simply to correct it.

Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018). As a result of all his prior

motions and appeals, there is nothing left to correct. This has already been done.

Savage then insists that reversal is required because the circuit court

did not weigh the equities in denying his last CR 60.02 motion. Savage cites Dull

v. George, 982 S.W.2d 227 (Ky. App. 1998). We question the citation of this civil

case about child custody, where there had been no prior CR 60.02 efforts, to

support Savage’s arguments about his latest motion. When a motion does not

make it past the bar of a proper first-time motion, weighing of equities would be

superfluous. Even so, it is specious for Savage to suggest that the equities would

favor him as opposed to the Commonwealth and the victims of his crimes, who

would be compelled to revisit this case over fifteen years after its proper finality.

-4- Savage’s latest motion addresses matters which were or could have

been addressed in prior proceedings. The latest motion was filed years after the

prior such motion. It was not filed within a reasonable time as required by CR

60.02. The latest motion also has no merit, and Savage cannot overcome the law

of this case as established through his numerous prior motions and appeals. The

Muhlenberg Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

James C. Savage, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

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