RENDERED: MARCH 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0261-MR
SHAWN OGDEN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE ACTION NO. 15-CR-002205
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Shawn Ogden, pro se, appeals from an order of the Jefferson
Circuit Court, entered on February 4, 2021, denying his motion to amend his
prison sentence pursuant to CR1 60.02(f), CR 60.03, and the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution. Following review of
the record, briefs, and law, we affirm.
1 Kentucky Rules of Civil Procedure. FACTS AND PROCEDURAL BACKGROUND
On October 27, 2015, having pled guilty to three counts of burglary,
Ogden was sentenced to three years for each count, to run consecutively for a total
sentence of nine years, which was probated for five years. On December 20, 2018,
following Ogden’s stipulation to violating the terms of his probation, the trial court
entered an order revoking his probation. In February 2021, Ogden moved the trial
court to amend the final judgment pursuant to CR 60.02, CR 60.03, and the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution, which the
trial court denied shortly thereafter. This appeal followed.
STANDARD OF REVIEW
This Court reviews orders on CR 60.02 motions for abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation
omitted). A trial court’s denial of a CR 60.03 motion is also reviewed for abuse of
discretion. Rogers Grp., Inc. v. Masterson, 175 S.W.3d 630, 636 (Ky. App. 2005)
(citations omitted). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation
omitted). Questions of constitutionality are reviewed de novo. Phon v.
Commonwealth, 545 S.W.3d 284, 290 (Ky. 2018) (citation omitted).
-2- ANALYSIS
Ogden is currently incarcerated at the Bell County Forestry Camp and
argues he is entitled to relief from the remainder of his sentence due to the risk of
contracting SARS-CoV-2 (“COVID-19”). More specifically, Ogden argues: (1)
the trial court abused its discretion in denying his motion under CR 60.02(f); (2)
the trial court abused its discretion in denying his motion under CR 60.03; and (3)
he is entitled to relief under the Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution.
First, Ogden is not entitled to relief under CR 60.02(f). The Supreme
Court of Kentucky has held there is a “high standard for granting a CR 60.02
motion,” because relief under CR 60.02 is designed to be “special” and
“extraordinary.” Barnett v. Commonwealth, 979 S.W.2d 98, 101-02 (Ky. 1998).
“[B]ecause of the desirability of according finality to judgments, CR 60.02(f) must
be invoked only with extreme caution, and only under most unusual
circumstances.” Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App.
2004) (citation omitted).
Although the COVID-19 pandemic may be considered unusual and
extraordinary, CR 60.02 “functions to address significant defects in the trial
proceedings.” Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. App. 2014)
(citing Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985)). Here,
-3- Ogden does not allege error stemming from any trial proceedings; rather, he argues
for release based on nebulous concerns for his health as a result of the COVID-19
pandemic. However, health concerns are not trial defects and do not qualify as
“claims of an extraordinary nature” entitling Ogden to relief under CR 60.02(f).
Ramsey, 453 S.W.3d at 739 (internal quotation marks and citation omitted). In
fact, we have rejected similar COVID-19-based arguments of other prisoners.
Williams v. Commonwealth, Nos. 2019-CA-0964-MR and 2020-CA-0638-MR,
2021 WL 943753 (Ky. App. Mar. 12, 2021); Gribbins v. Commonwealth, No.
2020-CA-0635-MR, 2021 WL 1164461 (Ky. App. Mar. 26, 2021); Morris v.
Commonwealth, No. 2020-CA-1195-MR, 2021 WL 1933656 (Ky. App. May 14,
2021); Thomas v. Commonwealth, No. 2020-CA-1081-MR, 2021 WL 3117200
(Ky. App. Jul. 23, 2021); Eaves v. Commonwealth, No. 2020-CA-1276-MR, 2021
WL 3818113 (Ky. App. Aug. 27, 2021); and Jackson v. Commonwealth,
___ S.W.3d ___, 2022 WL 332725 (Ky. App. Feb. 4, 2022).
Ultimately, because Ogden does not raise claims of error from a
defect in trial proceedings, he is not entitled to CR 60.02 relief. See Wine, 699
S.W.2d at 754. Thus, the trial court did not abuse its discretion in denying his CR
60.02 motion.
Second, Ogden’s claim under CR 60.03 must also fail. CR 60.03
states:
-4- Rule 60.02 shall not limit the power of any court to entertain an independent action to relieve a person from a judgment, order or proceeding on appropriate equitable grounds. Relief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02, or would be barred because not brought in time under the provisions of that rule.
The plain language of CR 60.03 requires a separate, independent action. There is
no evidence that occurred herein.
Even so, Ogden’s argument is the same as that which fails under CR
60.02(f); consequently, he is not entitled to relief under CR 60.03. Foley, 425
S.W.3d at 888 (quoting CR 60.03) (“Appellant is not entitled to relief under CR
60.02. As such, in effect, the ‘relief sought [in his CR 60.03 action] has been
denied in a proceeding by motion under Rule 60.02.’ It follows that Appellant is
not entitled to relief under CR 60.03.”). Likewise, similar CR 60.03 arguments
made by other inmates during the COVID-19 pandemic have been consistently
rejected. Williams, 2021 WL 943753, at *2-3; Gribbins, 2021 WL 1164461, at *2;
Morris, 2021 WL 1933656, at *2; Thomas, 2021 WL 3117200, at *2; Eaves, 2021
WL 3818113, at *2; and Jackson, ___ S.W.3d ___, 2022 WL 332725, at *3.
Additionally, CR 60.03 “is intended as an equitable form of relief
when no other avenue exists.” Meece v. Commonwealth, 529 S.W.3d 281, 295
(Ky. 2017). To be entitled to such relief, Ogden must establish three necessary
elements. The Supreme Court of Kentucky has held:
-5- Generally, claimants seeking equitable relief through independent actions must meet three requirements.
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RENDERED: MARCH 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0261-MR
SHAWN OGDEN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE ACTION NO. 15-CR-002205
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Shawn Ogden, pro se, appeals from an order of the Jefferson
Circuit Court, entered on February 4, 2021, denying his motion to amend his
prison sentence pursuant to CR1 60.02(f), CR 60.03, and the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution. Following review of
the record, briefs, and law, we affirm.
1 Kentucky Rules of Civil Procedure. FACTS AND PROCEDURAL BACKGROUND
On October 27, 2015, having pled guilty to three counts of burglary,
Ogden was sentenced to three years for each count, to run consecutively for a total
sentence of nine years, which was probated for five years. On December 20, 2018,
following Ogden’s stipulation to violating the terms of his probation, the trial court
entered an order revoking his probation. In February 2021, Ogden moved the trial
court to amend the final judgment pursuant to CR 60.02, CR 60.03, and the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution, which the
trial court denied shortly thereafter. This appeal followed.
STANDARD OF REVIEW
This Court reviews orders on CR 60.02 motions for abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation
omitted). A trial court’s denial of a CR 60.03 motion is also reviewed for abuse of
discretion. Rogers Grp., Inc. v. Masterson, 175 S.W.3d 630, 636 (Ky. App. 2005)
(citations omitted). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation
omitted). Questions of constitutionality are reviewed de novo. Phon v.
Commonwealth, 545 S.W.3d 284, 290 (Ky. 2018) (citation omitted).
-2- ANALYSIS
Ogden is currently incarcerated at the Bell County Forestry Camp and
argues he is entitled to relief from the remainder of his sentence due to the risk of
contracting SARS-CoV-2 (“COVID-19”). More specifically, Ogden argues: (1)
the trial court abused its discretion in denying his motion under CR 60.02(f); (2)
the trial court abused its discretion in denying his motion under CR 60.03; and (3)
he is entitled to relief under the Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution.
First, Ogden is not entitled to relief under CR 60.02(f). The Supreme
Court of Kentucky has held there is a “high standard for granting a CR 60.02
motion,” because relief under CR 60.02 is designed to be “special” and
“extraordinary.” Barnett v. Commonwealth, 979 S.W.2d 98, 101-02 (Ky. 1998).
“[B]ecause of the desirability of according finality to judgments, CR 60.02(f) must
be invoked only with extreme caution, and only under most unusual
circumstances.” Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App.
2004) (citation omitted).
Although the COVID-19 pandemic may be considered unusual and
extraordinary, CR 60.02 “functions to address significant defects in the trial
proceedings.” Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. App. 2014)
(citing Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985)). Here,
-3- Ogden does not allege error stemming from any trial proceedings; rather, he argues
for release based on nebulous concerns for his health as a result of the COVID-19
pandemic. However, health concerns are not trial defects and do not qualify as
“claims of an extraordinary nature” entitling Ogden to relief under CR 60.02(f).
Ramsey, 453 S.W.3d at 739 (internal quotation marks and citation omitted). In
fact, we have rejected similar COVID-19-based arguments of other prisoners.
Williams v. Commonwealth, Nos. 2019-CA-0964-MR and 2020-CA-0638-MR,
2021 WL 943753 (Ky. App. Mar. 12, 2021); Gribbins v. Commonwealth, No.
2020-CA-0635-MR, 2021 WL 1164461 (Ky. App. Mar. 26, 2021); Morris v.
Commonwealth, No. 2020-CA-1195-MR, 2021 WL 1933656 (Ky. App. May 14,
2021); Thomas v. Commonwealth, No. 2020-CA-1081-MR, 2021 WL 3117200
(Ky. App. Jul. 23, 2021); Eaves v. Commonwealth, No. 2020-CA-1276-MR, 2021
WL 3818113 (Ky. App. Aug. 27, 2021); and Jackson v. Commonwealth,
___ S.W.3d ___, 2022 WL 332725 (Ky. App. Feb. 4, 2022).
Ultimately, because Ogden does not raise claims of error from a
defect in trial proceedings, he is not entitled to CR 60.02 relief. See Wine, 699
S.W.2d at 754. Thus, the trial court did not abuse its discretion in denying his CR
60.02 motion.
Second, Ogden’s claim under CR 60.03 must also fail. CR 60.03
states:
-4- Rule 60.02 shall not limit the power of any court to entertain an independent action to relieve a person from a judgment, order or proceeding on appropriate equitable grounds. Relief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02, or would be barred because not brought in time under the provisions of that rule.
The plain language of CR 60.03 requires a separate, independent action. There is
no evidence that occurred herein.
Even so, Ogden’s argument is the same as that which fails under CR
60.02(f); consequently, he is not entitled to relief under CR 60.03. Foley, 425
S.W.3d at 888 (quoting CR 60.03) (“Appellant is not entitled to relief under CR
60.02. As such, in effect, the ‘relief sought [in his CR 60.03 action] has been
denied in a proceeding by motion under Rule 60.02.’ It follows that Appellant is
not entitled to relief under CR 60.03.”). Likewise, similar CR 60.03 arguments
made by other inmates during the COVID-19 pandemic have been consistently
rejected. Williams, 2021 WL 943753, at *2-3; Gribbins, 2021 WL 1164461, at *2;
Morris, 2021 WL 1933656, at *2; Thomas, 2021 WL 3117200, at *2; Eaves, 2021
WL 3818113, at *2; and Jackson, ___ S.W.3d ___, 2022 WL 332725, at *3.
Additionally, CR 60.03 “is intended as an equitable form of relief
when no other avenue exists.” Meece v. Commonwealth, 529 S.W.3d 281, 295
(Ky. 2017). To be entitled to such relief, Ogden must establish three necessary
elements. The Supreme Court of Kentucky has held:
-5- Generally, claimants seeking equitable relief through independent actions must meet three requirements. Claimants must (1) show that they have no other available or adequate remedy; (2) demonstrate that movants’ own fault, neglect, or carelessness did not create the situation for which they seek equitable relief; and (3) establish a recognized ground – such as fraud, accident, or mistake – for the equitable relief.
Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005), abrogated on other
grounds by Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) (emphasis
added) (original emphasis and citation omitted).
In addition to his failure to file an independent action, Ogden has not
shown that he has no other available or adequate remedy; neither has he
established recognized grounds for equitable relief. Concerning the second
element, while Ogden did not create the COVID-19 pandemic, his actions led to
his incarceration. In any event, all three elements must be met for entitlement to
the requested relief. Accordingly, the trial court did not abuse its discretion in
denying Ogden’s CR 60.03 motion.
Despite his assertions, Ogden has not demonstrated that he is entitled
to relief under the Fifth Amendment. While he quotes from part of the amendment
and repeatedly states he was deprived of due process, he fails to allege how he was
deprived of due process of law. We will not search the record to construct
Ogden’s argument for him, nor will we go on a fishing expedition to find support
for his underdeveloped arguments. “Even when briefs have been filed, a reviewing
-6- court will generally confine itself to errors pointed out in the briefs and will not
search the record for errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App.
1979).
Ogden is also not entitled to relief under the Eighth Amendment,
which is violated “when the State by the affirmative exercise of its power so
restrains an individual’s liberty that it renders him unable to care for himself, and
at the same time fails to provide for his basic human needs – e.g., food, clothing,
shelter, medical care, and reasonable safety.” Griffith v. Franklin County,
Kentucky, 975 F.3d 554, 566 (6th Cir. 2020) (citations omitted).
In the case herein, Ogden implies the Bell County Forestry Camp is
failing to provide inmates with reasonable safety because there are “no avenues to
social distance in prison[.]” However, this is an unsupported assertion. The same
is true of Ogden’s claims under the Fourteenth Amendment. Ogden simply fails to
explain how he was denied due process or equal protection of the law. Therefore,
we cannot say the trial court erred in denying his motion.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Jefferson
Circuit Court is AFFIRMED.
ALL CONCUR.
-7- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Shawn K. Ogden, pro se Daniel Cameron Pineville, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-8-