Russell Amboree v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: April 4, 2025
• Docket: 2023-CA-1129
• Status: Unpublished

Opinion

RENDERED: APRIL 4, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1129-MR

RUSSELL AMBOREE APPELLANT

APPEAL FROM HENDERSON CIRCUIT COURT v. HONORABLE KAREN L. WILSON, JUDGE ACTION NOS. 17-CR-00055 AND 17-CR-00056

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.

ACREE, JUDGE: Appellant, Russell T. Amboree, appeals from the Henderson

Circuit Court’s August 1, 2023 order denying his motion to quash the circuit

court’s revocation of his parole. Because Amboree declined to appeal from his

parole revocation directly when afforded the opportunity and has otherwise

exhausted his post-conviction remedies, we detect no reversible error in the circuit

court’s ruling and affirm. Amboree was indicted in 2017 for two counts of trafficking in a

controlled substance, first degree, and two counts of being a persistent felony

offender, first degree. Amboree pleaded guilty to amended charges on December

6, 2018. As part of his plea agreement, Amboree agreed to two consecutive, ten-

year sentences. Amboree received shock probation on May 1, 2019, which was

revoked on March 23, 2022. He did not appeal the revocation of his probation.

On April 8, 2022, Amboree filed a CR1 60.02 motion challenging the

revocation of his probation. The circuit court denied the motion and Amboree did

not appeal. In May of 2022, Amboree filed a RCr2 11.42 motion contesting the

revocation of his probation. The circuit court also denied this motion and, again,

Amboree did not appeal. He filed his third motion – another RCr 11.42 motion –

in July of 2022. Again, the circuit court denied the motion and, again, Amboree

did not appeal.

On May 19, 2023, Amboree filed his “Motion to Quash the Order

Revoking Probation of sentence” wherein he argued his sentences were erroneous

and that his probation should not have been revoked. Amboree’s motion was

denied, and this Court dismissed his appeal therefrom due to a lack of a properly

filed notice of appeal. Amboree filed a second, similar motion on August 17,

1 Kentucky Rules of Civil Procedure. 2 Kentucky Rules of Criminal Procedure.

-2- 2023, again challenging his parole revocation and sentences. The circuit court

denied the second motion and Amboree now appeals.

On appeal, Amboree challenges the propriety of both his sentence and

his probation revocation. Amboree has exhausted his options with respect to such

challenges. “The rules related to direct appeals, RCr 11.42, and [CR] 60.02

collectively create a structure that ‘provides for wide-ranging opportunities for a

defendant to challenge in all respects the legality and fairness of his conviction and

sentence.’” Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010) (quoting

Foley v. Commonwealth, 306 S.W.3d 28, 31 (Ky. 2010)). “At each stage in this

structure the defendant is required to raise all issues then amenable to review, and

generally issues that either were or could have been raised at one stage will not be

entertained at any later stage.” Id. (citing Gross v. Commonwealth, 648 S.W.2d

853 (Ky. 1983)). Though both RCr 11.42 and CR 60.02 contemplate relief should

relevant information be obtained that was not known and could not have been

discovered through exercise of due diligence at the time of a trial court’s ruling,

none of the grounds Amboree raises in this appeal fall into that category.

Regardless, the procedural history of this case reveals Amboree is not

entitled to relief on appeal. Amboree never appealed directly from the revocation

-3- of his parole, which KRS3 22A.020(1)4 authorizes. Neither did he appeal from the

denial of his RCr 11.42 and CR 60.02 motions. Rather, Amboree appeals from an

order denying his “motion to quash” the order revoking his probation. Such

motion is not a mechanism for relief that our post-judgment structure provides.

Amboree did not avail himself of the opportunity to appeal when he could have,

and, therefore, he is not entitled to relief from this Court. Further collateral attacks

to Amboree’s sentence and probation revocation based on information which was

readily available at the time of his sentencing and subsequent revocation of his

probation are foreclosed.

Accordingly, the Henderson Circuit Court’s August 1, 2023 order

denying Amboree’s motion to quash the revocation of his probation does not

constitute reversible error. We affirm.

ALL CONCUR.

3 Kentucky Revised Statutes. 4 “Except as provided in Section 110 of the Constitution, an appeal may be taken as a matter of right to the Court of Appeals from any conviction, final judgment, order, or decree in any case in Circuit Court, including a family court division of Circuit Court, unless such conviction, final judgment, order, or decree was rendered on an appeal from a court inferior to Circuit Court.”

-4- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Russell T. Amboree, pro se Russell Coleman West Liberty, Kentucky Attorney General of Kentucky

Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

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