RENDERED: DECEMBER 5, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0385-MR
LEE ALLEN CANAFAX APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE JEREMY M. MATTOX, JUDGE ACTION NO. 09-CR-00166
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
MCNEILL, JUDGE: Lee Allen Canafax (Canafax) appeals from two orders of the
Scott Circuit Court, both entered February 29, 2024, denying his motions to vacate
his judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 and to
compel the production of grand jury records. After careful review of the briefs,
record, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
Canafax was indicted by the Scott County grand jury for sexual
crimes against his great niece in December 2009. He pled guilty to first-degree
sodomy, Kentucky Revised Statute (KRS) 510.070, and to three counts of first-
degree sexual abuse, KRS 510.110, and he was sentenced to twenty-seven years’
incarceration in July 2011.
In 2014, Canafax filed a motion to vacate his conviction pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42. The court resolved the
motion by an agreed order dismissing one count of first-degree sexual abuse,
conforming Canafax’s conviction to the indictment, and reducing his sentence to
twenty-two years. Then, in 2019, Canafax filed a CR 60.02 motion arguing that
the Commonwealth had fraudulently misstated the commission dates of his crimes
in the indictment solely to take advantage of a statutory amendment increasing the
applicable penalties. The circuit court denied the motion, and a panel of this Court
affirmed in July 2023. Canafax v. Commonwealth, 691 S.W.3d 296 (Ky. App.
2023).
In October 2023, Canafax filed the motions at issue in this appeal. In
the first motion, Canafax sought to compel the Commonwealth or the Circuit Court
Clerk to produce records of the grand jury proceedings and specifically requesting
video recordings of the grand jury being sworn in, the indictment hearing, and the
-2- grand jury’s deliberations. In the second motion, made pursuant to CR 60.02(e),1
Canafax argued that the judgment of conviction was void because the
Commonwealth and the Circuit Court Clerk had each answered that there were no
records responsive to his requests. The court denied both motions via orders
entered February 29, 2024. The court concluded therein that there was no basis to
grant the motion to compel because the Commonwealth had already provided the
record of the grand jury testimony during discovery and no video records existed.
Additionally, the court determined that Canafax’s CR 60.02 claims were time
barred and barred by res judicata. This appeal timely followed.
STANDARD OF REVIEW
CR 60.02 provides that, “[o]n motion a court may, upon such terms as
are just, relieve a party . . . from its final judgment [if] . . . the judgment is void[.]”
We review the denial of CR 60.02 motions and matters involving discovery for an
abuse of discretion. See Young v. Richardson, 267 S.W.3d 690, 697-98 (Ky. App.
2008); Manus, Inc. v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App.
2006). “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).
1 The motion also cited CR 60.02(d) and (f), allowing relief from judgments affected by fraud or for any reason of an extraordinary nature; however, Canafax has not raised any specific argument under these provisions on appeal.
-3- ANALYSIS
On appeal, Canafax argues that the court erred in dismissing his CR
60.02(e) motion as untimely and successive because the judgment of conviction is
void, and void judgments are subject to correction at any time. The
Commonwealth argues we should affirm because of the long-recognized rule that
courts will not consider untimely motions or motions reciting grounds for relief
that have been or should have been raised earlier. See McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); Gross v. Commonwealth, 648
S.W.2d 853, 858 (Ky. 1983); Cardwell v. Commonwealth, 354 S.W.3d 582, 585
(Ky. App. 2011).
Although the Commonwealth is correct regarding the general rule, an
exception for void judgments was recognized by the Supreme Court of Kentucky
in Phon v. Commonwealth, 545 S.W.3d 284, 306-07 (Ky. 2018). Therein, after
acknowledging that Phon’s CR 60.02 motion had not been made in a timely or
appropriate manner, the Court stated that the movant was still entitled to relief
because “the law is clear that void judgments are not entitled to any respect or
deference by the courts.” Id. (internal quotation marks and citations omitted); See
also Grundy v. Commonwealth, 400 S.W.3d 752, 755 (Ky. App. 2013).
Nevertheless, we may affirm for any reason supported by the record,
Fischer v. Fischer, 348 S.W.3d 582, 590 (Ky. 2011), abrogated on other grounds
-4- by Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d
323 (Ky. 2018), and we agree with the Commonwealth’s alternative claim that the
judgment of conviction is not void.
Errors in grand jury proceedings can be severe enough to void a
judgment. See Beach v. Lady, 262 S.W.2d 837 (Ky. 1953) (judgment void when
Commonwealth admitted that indictment was returned by a special grand jury that
had not been called or selected in accordance with statutory law); Mederith v.
Commonwealth, 201 Ky. 809, 258 S.W. 686 (1924) (judgment void when
Commonwealth admitted that grand jury was not impaneled or sworn by a judge,
as required by statute, and that a judge was not present when the indictment was
returned, as required by rule). Canafax, however, has not identified any
affirmative evidence even suggesting that an irregularity occurred during the grand
jury proceedings in this matter. Rather, his assertion that his judgment is void is
based solely on the fact that there is no record, especially video record, of the
grand jury proceedings.
Canafax’s belief that there must be a video record of the grand jury
proceedings arises from his misreading of RCr 5.16 and RCr 5.20. Contrary to his
argument, neither rule mandates that the grand jury proceedings, in whole or in
part, be recorded by video. RCr 5.16 requires only that grand jury testimony be
recorded (although not necessarily by video) and retained by the Commonwealth,
-5- or the indictment may be dismissed. Similarly, RCr 5.20 merely states that “[a]ll
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RENDERED: DECEMBER 5, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0385-MR
LEE ALLEN CANAFAX APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE JEREMY M. MATTOX, JUDGE ACTION NO. 09-CR-00166
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
MCNEILL, JUDGE: Lee Allen Canafax (Canafax) appeals from two orders of the
Scott Circuit Court, both entered February 29, 2024, denying his motions to vacate
his judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 and to
compel the production of grand jury records. After careful review of the briefs,
record, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
Canafax was indicted by the Scott County grand jury for sexual
crimes against his great niece in December 2009. He pled guilty to first-degree
sodomy, Kentucky Revised Statute (KRS) 510.070, and to three counts of first-
degree sexual abuse, KRS 510.110, and he was sentenced to twenty-seven years’
incarceration in July 2011.
In 2014, Canafax filed a motion to vacate his conviction pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42. The court resolved the
motion by an agreed order dismissing one count of first-degree sexual abuse,
conforming Canafax’s conviction to the indictment, and reducing his sentence to
twenty-two years. Then, in 2019, Canafax filed a CR 60.02 motion arguing that
the Commonwealth had fraudulently misstated the commission dates of his crimes
in the indictment solely to take advantage of a statutory amendment increasing the
applicable penalties. The circuit court denied the motion, and a panel of this Court
affirmed in July 2023. Canafax v. Commonwealth, 691 S.W.3d 296 (Ky. App.
2023).
In October 2023, Canafax filed the motions at issue in this appeal. In
the first motion, Canafax sought to compel the Commonwealth or the Circuit Court
Clerk to produce records of the grand jury proceedings and specifically requesting
video recordings of the grand jury being sworn in, the indictment hearing, and the
-2- grand jury’s deliberations. In the second motion, made pursuant to CR 60.02(e),1
Canafax argued that the judgment of conviction was void because the
Commonwealth and the Circuit Court Clerk had each answered that there were no
records responsive to his requests. The court denied both motions via orders
entered February 29, 2024. The court concluded therein that there was no basis to
grant the motion to compel because the Commonwealth had already provided the
record of the grand jury testimony during discovery and no video records existed.
Additionally, the court determined that Canafax’s CR 60.02 claims were time
barred and barred by res judicata. This appeal timely followed.
STANDARD OF REVIEW
CR 60.02 provides that, “[o]n motion a court may, upon such terms as
are just, relieve a party . . . from its final judgment [if] . . . the judgment is void[.]”
We review the denial of CR 60.02 motions and matters involving discovery for an
abuse of discretion. See Young v. Richardson, 267 S.W.3d 690, 697-98 (Ky. App.
2008); Manus, Inc. v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App.
2006). “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).
1 The motion also cited CR 60.02(d) and (f), allowing relief from judgments affected by fraud or for any reason of an extraordinary nature; however, Canafax has not raised any specific argument under these provisions on appeal.
-3- ANALYSIS
On appeal, Canafax argues that the court erred in dismissing his CR
60.02(e) motion as untimely and successive because the judgment of conviction is
void, and void judgments are subject to correction at any time. The
Commonwealth argues we should affirm because of the long-recognized rule that
courts will not consider untimely motions or motions reciting grounds for relief
that have been or should have been raised earlier. See McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); Gross v. Commonwealth, 648
S.W.2d 853, 858 (Ky. 1983); Cardwell v. Commonwealth, 354 S.W.3d 582, 585
(Ky. App. 2011).
Although the Commonwealth is correct regarding the general rule, an
exception for void judgments was recognized by the Supreme Court of Kentucky
in Phon v. Commonwealth, 545 S.W.3d 284, 306-07 (Ky. 2018). Therein, after
acknowledging that Phon’s CR 60.02 motion had not been made in a timely or
appropriate manner, the Court stated that the movant was still entitled to relief
because “the law is clear that void judgments are not entitled to any respect or
deference by the courts.” Id. (internal quotation marks and citations omitted); See
also Grundy v. Commonwealth, 400 S.W.3d 752, 755 (Ky. App. 2013).
Nevertheless, we may affirm for any reason supported by the record,
Fischer v. Fischer, 348 S.W.3d 582, 590 (Ky. 2011), abrogated on other grounds
-4- by Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d
323 (Ky. 2018), and we agree with the Commonwealth’s alternative claim that the
judgment of conviction is not void.
Errors in grand jury proceedings can be severe enough to void a
judgment. See Beach v. Lady, 262 S.W.2d 837 (Ky. 1953) (judgment void when
Commonwealth admitted that indictment was returned by a special grand jury that
had not been called or selected in accordance with statutory law); Mederith v.
Commonwealth, 201 Ky. 809, 258 S.W. 686 (1924) (judgment void when
Commonwealth admitted that grand jury was not impaneled or sworn by a judge,
as required by statute, and that a judge was not present when the indictment was
returned, as required by rule). Canafax, however, has not identified any
affirmative evidence even suggesting that an irregularity occurred during the grand
jury proceedings in this matter. Rather, his assertion that his judgment is void is
based solely on the fact that there is no record, especially video record, of the
grand jury proceedings.
Canafax’s belief that there must be a video record of the grand jury
proceedings arises from his misreading of RCr 5.16 and RCr 5.20. Contrary to his
argument, neither rule mandates that the grand jury proceedings, in whole or in
part, be recorded by video. RCr 5.16 requires only that grand jury testimony be
recorded (although not necessarily by video) and retained by the Commonwealth,
-5- or the indictment may be dismissed. Similarly, RCr 5.20 merely states that “[a]ll
indictments shall be returned to the circuit judge by the foreperson in the presence
of the grand jury in open court, and thereupon shall be filed with the clerk of the
court and retained in the clerk’s office as public records.”
Here, the record establishes that the requirements of RCr 5.16 and
RCr 5.20 were met. Canafax does not dispute that a record of the grand jury
testimony was turned over in discovery, as the court concluded, which necessarily
means the Commonwealth complied with its obligations under RCr 5.16.
Additionally, the filed indictment, signed by the grand jury foreperson and a
deputy circuit clerk, recites that the various requirements of RCr 5.20 were
observed.
Moreover, the absence of a video record, or of any other type of
record, documenting the selection of the grand jurors and the grand jurors’
subsequent actions does not overcome the presumption in favor of the regularity of
court proceedings. Young v. Commonwealth, 275 Ky. 98, 120 S.W.2d 772 (1938)
(“[I]t is a universally accepted and applied presumption that [the court] . . . has
performed its duty and followed mandatory requirements enjoined upon it by law.
[T]he mere failure of [the] record to show such affirmative steps and actions will
not be allowed to overcome that presumption.”). Accordingly, Canafax’s assertion
-6- that his judgment is void is without merit, and the court did not abuse its discretion
in denying his CR 60.02 motion.
Finally, to the extent Canafax argues that the court erred when it
denied his motion to compel the Commonwealth to produce a copy of the grand
jury testimony in his case, we again disagree. Canafax relies on RCr 5.16(3),
which states that a criminal defendant may obtain a copy of the record. However,
in Wagner v. Commonwealth, 247 S.W.3d 540, 542 (Ky. App. 2008), this Court
affirmed the denial of a similar motion, concluding that RCr 5.16(3) applies to pre-
trial preparation and reiterating that there is no right to discovery in post-
conviction proceedings. We find this reasoning compelling and conclude that the
court did not abuse its discretion when it denied Canafax’s motion.
CONCLUSION
For the foregoing reasons, the orders of the Scott Circuit Court are
AFFIRMED.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Lee Allen Canafax Russell Coleman La Grange, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-8-