RENDERED: SEPTEMBER 26, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0761-MR
KEVIN MADISON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 19-CR-002230
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: A. JONES, L. JONES, AND KAREM, JUDGES.
JONES, L., JUDGE: Kevin Madison, proceeding pro se, appeals the May 30,
2024 Order of the Jefferson Circuit Court denying his request to vacate his
conviction and sentence pursuant to CR1 60.02(e)-(f). Finding no error, we affirm.
1 Kentucky Rule of Civil Procedure. Madison was convicted of one count of Arson in the First Degree, five
counts of Wanton Endangerment in the First Degree, and one count of Criminal
Mischief in the First Degree. The jury also found Madison to be a Persistent
Felony Offender in the First Degree (PFO). While the jury recommended a total of
105 years to serve in the penitentiary, at final sentencing, the trial court reduced the
recommended sentence to seventy years to serve in the penitentiary as required by
KRS2 532.110(1)(c)(2). In an unreported decision, the Kentucky Supreme Court
affirmed Madison’s conviction and sentence. Madison v. Commonwealth, No.
2023-SC-0127-MR, 2024 WL 1147467 (Ky. Mar. 14, 2024).
On May 28, 2024, Madison filed a pro se “Motion to Vacate
Judgment Pursuant to CR 60.02(e) & (f).” (CR 60.02 Motion.) In an
accompanying memorandum, Madison asserted that because the trial court
improperly bifurcated the PFO phase from his trial, which resulted in the trial court
lacking jurisdiction to enter judgment against him. Therefore, Madison asserted
that the failure to properly bifurcate the PFO phase rendered his sentence illegal.
On May 30, 2024, the trial court entered an order denying Madison’s CR 60.02
Motion. Record (R.) at 404-405. In its Order, the trial court found that Madison’s
CR 60.02 Motion “raises virtually the same issues raised in his previously
referenced unsuccessful appeal” and that Madison’s claims were “unsupported by
2 Kentucky Revised Statutes.
-2- the record and inconsistent with Kentucky law.” R. at 404. Additionally, the trial
Court found that Madison “failed to demonstrate the presence of the necessary
extraordinary circumstances warranting [relief under CR 60.02].” From that
Order, Madison filed a timely appeal.3
On appeal, Madison argues the trial court abused its discretion in two
ways. First, Madison claims the trial court erred when it “[denied] his [CR 60.02
Motion] without reviewing the merit[s] of [his] argument” “as well as giving a
false narrative of [his] direct appeal.” Appellant’s Brief at 1. Second, Madison
claims the trial court erred when it “denied [Madison’s] argument that it did not
have jurisdiction to convict him of an illegal sentence.” Augmenting his second
argument, Madison also claims the PFO statute is “vague” and should be subject to
the rule of lenity and that his sentence is so disproportionate as to be
unconstitutional.
As an initial matter, the Commonwealth requests that we dismiss this
appeal because Madison’s brief does not comply with the Rules of Appellate
Procedure (RAP). In particular, the Commonwealth argues that (1) Madison did
not “specifically and adequately state how and where he preserved any of his
3 Coincident with his CR 60.02 Motion, Madison filed several other motions: (1) a Motion to Proceed In forma Pauperis, (2) a Motion for Appointment of Counsel; and (3) a Motion for an Evidentiary Hearing. The trial court’s May 30, 2024 Order did not dispose of those motions, nor did the trial court ever rule on those motions. However, the trial court’s ruling denying Madison’s CR 60.02 Motion would render those motions moot.
-3- arguments in the trial court”; (2) Madison’s brief contains minimal citations to the
trial court record; and (3) the argument section of Madison’s brief lacks a
statement showing whether the issues were preserved for review and how they
were preserved. Appellee’s Brief at 2-3.
The Commonwealth is correct. Madison’s brief lacks any
preservation statement as required by RAP 32(A)(4) and his Statement of the Case
contains few references to the record below as required by RAP 32(A)(3).
Moreover, RAP 32(A)(3) requires “a summary of the facts and procedural events
relevant and necessary to an understanding of the issues presented by the appeal[.]”
Madison’s Statement of the Case only contains reference to the factual and
procedural history of the underlying trial in this case, not any of the facts or
procedural history relating to this appeal, i.e. his CR 60.02 Motion. Madison’s
brief also violates RAP 32(E)(1)(a) which provides that “[t]he appellant shall place
the judgment, opinion, or order under review immediately after the appendix list so
that it is most readily available to the court.” Madison’s appendix only contains a
copy of the Kentucky Supreme Court opinion from his direct appeal, not the trial
court’s May 30, 2024 Order denying his CR 60.02 Motion.
When a brief fails to substantially comply with RAP 31, we have the
option of striking that brief. RAP 31(H)(1). Furthermore, we have the option of
dismissing the appeal. RAP 10(5). We recognize that “while pro se litigants are
-4- sometimes held to less stringent standards than lawyers . . . Kentucky courts still
require pro se litigants to follow the [Kentucky Rules of Court].” Watkins v.
Fannin, 278 S.W. 3d 637 S.W.3d 637, 643 (Ky. App. 2009). Indeed, this Court
exercised the option to strike a brief submitted by an incarcerated pro se appellant
for failure to comply with the RAP. See Robertson v. Commonwealth, No. 2024-
CA-0699-MR, 2025 WL 1716891, at *1 (Ky. App. Jun. 20, 2025) (striking
incarcerated appellant’s pro se brief as it “did not comply with the RAP in any
meaningful way at all” and concluding that “[i]t does not appear that [the
appellant] even looked at the rules or made any attempt at compliance.”).
This Court’s waning tolerance for the failure of parties to comply with
RAP notwithstanding, we note that Madison’s brief at least appears to attempt
compliance with the RAP, far more than the brief in Robertson.4 Moreover, one of
Madison’s claims is that his sentence is illegal due to a defect in the PFO
proceedings. Because “[i]llegal sentences must always be correctable[,]” and “the
mode of attack or time when the attack is brought are immaterial when the issue is
an illegal sentence,” Phon v. Commonwealth, 545 S.W.3d 284, 307 (Ky. 2018), we
are compelled to review Madison’s arguments.
4 The appellant’s brief in Robertson not only lacked a statement of preservation, it also did not contain: (1) a statement concerning oral argument, (2) a statement of points and authorities, (3) a statement of the case, or (4) any citations to the record at all. 2025 WL 1716891. Albeit wanting in numerous respects, Madison’s brief contains all four of these latter portions.
-5- Turning to the merits of Madison’s arguments, this Court reviews the
denial of a CR 60.02 motion for abuse of discretion. Brown v. Commonwealth,
932 S.W.2d 359, 361 (Ky. 1996). “The test for abuse of discretion is whether the
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RENDERED: SEPTEMBER 26, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0761-MR
KEVIN MADISON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 19-CR-002230
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: A. JONES, L. JONES, AND KAREM, JUDGES.
JONES, L., JUDGE: Kevin Madison, proceeding pro se, appeals the May 30,
2024 Order of the Jefferson Circuit Court denying his request to vacate his
conviction and sentence pursuant to CR1 60.02(e)-(f). Finding no error, we affirm.
1 Kentucky Rule of Civil Procedure. Madison was convicted of one count of Arson in the First Degree, five
counts of Wanton Endangerment in the First Degree, and one count of Criminal
Mischief in the First Degree. The jury also found Madison to be a Persistent
Felony Offender in the First Degree (PFO). While the jury recommended a total of
105 years to serve in the penitentiary, at final sentencing, the trial court reduced the
recommended sentence to seventy years to serve in the penitentiary as required by
KRS2 532.110(1)(c)(2). In an unreported decision, the Kentucky Supreme Court
affirmed Madison’s conviction and sentence. Madison v. Commonwealth, No.
2023-SC-0127-MR, 2024 WL 1147467 (Ky. Mar. 14, 2024).
On May 28, 2024, Madison filed a pro se “Motion to Vacate
Judgment Pursuant to CR 60.02(e) & (f).” (CR 60.02 Motion.) In an
accompanying memorandum, Madison asserted that because the trial court
improperly bifurcated the PFO phase from his trial, which resulted in the trial court
lacking jurisdiction to enter judgment against him. Therefore, Madison asserted
that the failure to properly bifurcate the PFO phase rendered his sentence illegal.
On May 30, 2024, the trial court entered an order denying Madison’s CR 60.02
Motion. Record (R.) at 404-405. In its Order, the trial court found that Madison’s
CR 60.02 Motion “raises virtually the same issues raised in his previously
referenced unsuccessful appeal” and that Madison’s claims were “unsupported by
2 Kentucky Revised Statutes.
-2- the record and inconsistent with Kentucky law.” R. at 404. Additionally, the trial
Court found that Madison “failed to demonstrate the presence of the necessary
extraordinary circumstances warranting [relief under CR 60.02].” From that
Order, Madison filed a timely appeal.3
On appeal, Madison argues the trial court abused its discretion in two
ways. First, Madison claims the trial court erred when it “[denied] his [CR 60.02
Motion] without reviewing the merit[s] of [his] argument” “as well as giving a
false narrative of [his] direct appeal.” Appellant’s Brief at 1. Second, Madison
claims the trial court erred when it “denied [Madison’s] argument that it did not
have jurisdiction to convict him of an illegal sentence.” Augmenting his second
argument, Madison also claims the PFO statute is “vague” and should be subject to
the rule of lenity and that his sentence is so disproportionate as to be
unconstitutional.
As an initial matter, the Commonwealth requests that we dismiss this
appeal because Madison’s brief does not comply with the Rules of Appellate
Procedure (RAP). In particular, the Commonwealth argues that (1) Madison did
not “specifically and adequately state how and where he preserved any of his
3 Coincident with his CR 60.02 Motion, Madison filed several other motions: (1) a Motion to Proceed In forma Pauperis, (2) a Motion for Appointment of Counsel; and (3) a Motion for an Evidentiary Hearing. The trial court’s May 30, 2024 Order did not dispose of those motions, nor did the trial court ever rule on those motions. However, the trial court’s ruling denying Madison’s CR 60.02 Motion would render those motions moot.
-3- arguments in the trial court”; (2) Madison’s brief contains minimal citations to the
trial court record; and (3) the argument section of Madison’s brief lacks a
statement showing whether the issues were preserved for review and how they
were preserved. Appellee’s Brief at 2-3.
The Commonwealth is correct. Madison’s brief lacks any
preservation statement as required by RAP 32(A)(4) and his Statement of the Case
contains few references to the record below as required by RAP 32(A)(3).
Moreover, RAP 32(A)(3) requires “a summary of the facts and procedural events
relevant and necessary to an understanding of the issues presented by the appeal[.]”
Madison’s Statement of the Case only contains reference to the factual and
procedural history of the underlying trial in this case, not any of the facts or
procedural history relating to this appeal, i.e. his CR 60.02 Motion. Madison’s
brief also violates RAP 32(E)(1)(a) which provides that “[t]he appellant shall place
the judgment, opinion, or order under review immediately after the appendix list so
that it is most readily available to the court.” Madison’s appendix only contains a
copy of the Kentucky Supreme Court opinion from his direct appeal, not the trial
court’s May 30, 2024 Order denying his CR 60.02 Motion.
When a brief fails to substantially comply with RAP 31, we have the
option of striking that brief. RAP 31(H)(1). Furthermore, we have the option of
dismissing the appeal. RAP 10(5). We recognize that “while pro se litigants are
-4- sometimes held to less stringent standards than lawyers . . . Kentucky courts still
require pro se litigants to follow the [Kentucky Rules of Court].” Watkins v.
Fannin, 278 S.W. 3d 637 S.W.3d 637, 643 (Ky. App. 2009). Indeed, this Court
exercised the option to strike a brief submitted by an incarcerated pro se appellant
for failure to comply with the RAP. See Robertson v. Commonwealth, No. 2024-
CA-0699-MR, 2025 WL 1716891, at *1 (Ky. App. Jun. 20, 2025) (striking
incarcerated appellant’s pro se brief as it “did not comply with the RAP in any
meaningful way at all” and concluding that “[i]t does not appear that [the
appellant] even looked at the rules or made any attempt at compliance.”).
This Court’s waning tolerance for the failure of parties to comply with
RAP notwithstanding, we note that Madison’s brief at least appears to attempt
compliance with the RAP, far more than the brief in Robertson.4 Moreover, one of
Madison’s claims is that his sentence is illegal due to a defect in the PFO
proceedings. Because “[i]llegal sentences must always be correctable[,]” and “the
mode of attack or time when the attack is brought are immaterial when the issue is
an illegal sentence,” Phon v. Commonwealth, 545 S.W.3d 284, 307 (Ky. 2018), we
are compelled to review Madison’s arguments.
4 The appellant’s brief in Robertson not only lacked a statement of preservation, it also did not contain: (1) a statement concerning oral argument, (2) a statement of points and authorities, (3) a statement of the case, or (4) any citations to the record at all. 2025 WL 1716891. Albeit wanting in numerous respects, Madison’s brief contains all four of these latter portions.
-5- Turning to the merits of Madison’s arguments, this Court reviews the
denial of a CR 60.02 motion for abuse of discretion. Brown v. Commonwealth,
932 S.W.2d 359, 361 (Ky. 1996). “The 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).
However, relief under CR 60.02 is not available for issues that could
have been brought on direct appeal or by a motion under RCr5 11.42. Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). As explained in Gross, “the
proper procedure for a defendant aggrieved by a judgment in a criminal case is to
directly appeal that judgment, stating every ground of error which it is reasonable
to expect that he or his counsel is aware of when the appeal is taken.” Id. at 857.
“CR 60.02 is not a separate avenue of appeal to be pursued in addition to other
remedies, but is available only to raise issues which cannot be raised in other
proceedings.” McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
Madison argues on appeal that the PFO phase of his trial was not
properly bifurcated and thus his sentence is illegal. However, such argument goes
to a procedural defect rather than the legality of the sentence. Even on direct
appeal, without a contemporaneous objection to any procedural defect in PFO
proceedings, such defect would only be reviewed for palpable error. Montgomery
5 Kentucky Rules of Criminal Procedure.
-6- v. Commonwealth, 320 S.W.3d 28, 49 (Ky. 2010). Thus, Madison should have
brought any claims regarding alleged defects in the PFO phase of his trial on direct
appeal.6
Nor is Madison’s sentence illegal. Again, any alleged defect in the
PFO phase of a trial do not necessarily render the resulting sentence illegal. While
the jury recommended that Madison serve 105 years in the penitentiary, the trial
court’s judgment correctly reduced that sentence to the seventy-year cap in KRS
532.110(1)(c)2.
Moreover, there was no defect in the PFO phase of Madison’s trial.
The proper procedure in the PFO phase of a trial is as follows:
If the accused is also charged as a persistent felony offender, the penalty phase and a persistent felony offender phase can be combined because the same evidence that is pertinent toward fixing the penalty is also pertinent for consideration in the enhancement of sentence, and the jury in the combined bifurcated hearing could be instructed to (1) fix a penalty on the basic charge in the indictment; (2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender.
6 We note that the trial court’s May 30, 2024 Order stated Madison’s CR 60.02 Motion “raises virtually the same issues raised in his [direct appeal].” This is incorrect; Madison’s sole issue on direct appeal was whether the trial court erred by denying his motions for directed verdict. See Madison, 2024 WL 1147467, at *3. However, this incorrect statement does not change the fact that Madison should have raised the issues in his CR 60.02 Motion on his direct appeal.
-7- Commonwealth v. Reener, 734 S.W.2d 794, 798 (Ky. 1987); KRS 532.080. That is
exactly what occurred in this case. The jury was instructed to determine the basic
penalty for the offenses under which Madison was convicted; then instructed to
determine if Madison was guilty of PFO I, and then, if so, to determine the
enhanced penalty for the eligible offenses. The jury followed those instructions.
Madison’s arguments regarding the vagueness of the PFO statute and
disproportionality of his sentence were not made in his original CR 60.02 motion;
therefore we decline to review those arguments as appellate courts “are not at
liberty to review alleged errors when the issue[s] [were] not presented to the trial
court for decision.” Henson v. Commonwealth, 20 S.W.3d 466, 470 (Ky. 1999).
Madison’s CR 60.02 Motion raised issues that should have been
brought on direct appeal and are nevertheless without merit. Thus, the May 30,
2024 Order of the Jefferson Circuit Court denying Madison’s CR 60.02 motion is
affirmed.
We view any remaining contentions of error as moot, unpersuasive,
unpreserved, or without merit.
ALL CONCUR.
-8- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kevin Madison, pro se Russell Coleman La Grange, Kentucky Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
-9-