RENDERED: MARCH 26, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0466-MR
TERRY BODYTKO APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 18-CR-00258
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES.
JONES, JUDGE: Terry Bodytko (Bodytko), pro se, appeals from the Muhlenberg
Circuit Court’s order denying his CR1 60.02(e) and (f) motion to set aside a portion
of his conviction on grounds of double jeopardy. Having reviewed the record and
being otherwise sufficiently advised, we affirm.
1 Kentucky Rules of Civil Procedure. I. BACKGROUND
On November 16, 2018, Bodytko was indicted in Muhlenberg County
on charges of: 1) trafficking in controlled substance in the first degree, two or
more grams of methamphetamine; 2) trafficking in controlled substance in the
second degree, buprenorphine; 3) trafficking in synthetic drugs, synthetic
marijuana; 4) promoting contraband in the first degree; and 5) being a persistent
felony offender in the first degree.
On February 11, 2019, Bodytko entered into a plea agreement with
the Commonwealth. In exchange for his agreement to plead guilty on counts one
through four outlined above, the Commonwealth amended the indictment to reduce
the persistent felony offender in the first degree charge to persistent felony
offender in the second degree. After accounting for the enhancement under the
persistent felony offender in the second degree statute, the trial court sentenced
Bodytko to twelve years’ imprisonment on count one, as well as ten years’
imprisonment each on counts two through four. The sentences on each of the four
counts were to run concurrently with one another, but consecutively with time
being served on previous, unrelated convictions. The trial court entered an order
and judgment of sentence consistent with the parties’ plea agreement. Bodytko did
not file a direct appeal from the judgment.
-2- On September 10, 2019, Bodytko moved the trial court, pro se, to
“Vacate, Set Aside, Or Correct Judgment and Sentence Pursuant to RCr[2] 11.42
and 10.26.” In his motion, Bodytko argued he was denied effective assistance of
counsel when his defense counsel allowed him to plead guilty “to promoting
contraband in violation of double jeopardy to trafficking.” The court set a hearing
date of January 31, 2020 on the motion and appointed counsel for Bodytko for
subsequent proceedings.
In addition to its legal arguments, Bodytko’s motion more completely
described the facts underlying the charges against him:
On July 15, 2018; [sic] in Muhlenberg County, Kentucky State Police were called to the Green River Correctional Complex to investigate drugs being trafficked into prison. Correctional Officers at the prison conducted a cell search of Terry Bodytko. . . . and located the following drugs in a Coke Cola [sic] stash can that contained, [a] small zip lock baggie with methamphetamine residue in it, 9 orange strips of suboxone individually wrapped in cellophane, 2 baggies synthetic drugs (spice) approx. 1 gram, 3 baggies of methamphetamine (1 gram each), 1 unwrapped baggie of methamphetamine approx. 2 grams (total 5 gms), and what appeared to be a debt ledger and phone numbers.
Prior to the January 31, 2020 hearing, the Commonwealth and
Bodytko entered into another agreement, memorialized by an “Agreed Order to
Amend Charges,” dismissing counts two and three and vacating the ten-year
2 Kentucky Rules of Criminal Procedure.
-3- sentences for each. Again, the sentences were to run concurrently, resulting in a
conviction as to fewer charges but ultimately the same term of twelve years. The
agreed order also indicated that the “pending RCr 11.42 motion is withdrawn.” No
hearing was held.
On February 28, 2020, Bodytko filed a motion for relief under CR
60.02(e) and (f), seeking to set aside the conviction and sentence imposed on
February 11, 2019 as amended on January 31, 2020. Like Bodytko’s previous RCr
11.42 motion, his motion under CR 60.02 contended that the trial court’s act of
sentencing of him under both counts one and four amounted to double jeopardy
under the Fifth Amendment of the United States Constitution and Section 13 of the
Kentucky Constitution.3
Ultimately, the trial court concluded that Bodytko’s CR 60.02 motion
was procedurally barred because he failed to raise double jeopardy earlier in the
proceedings; alternatively, the trial court determined that Bodytko’s convictions
for trafficking and promotion of contraband did not violate double jeopardy.
Accordingly, the trial court denied Bodytko’s CR 60.02 motion by order entered
March 19, 2020.
This appeal followed.
3 The CR 60.02 motion did not address any additional grounds.
-4- II. STANDARD OF REVIEW
We review the trial court’s denial of a motion pursuant to CR 60.02
under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86
(Ky. App. 2000). An abuse of discretion occurs when a “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).
III. ANALYSIS
The relevant portion of CR 60.02 provides:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or other proceeding upon the following grounds: . . . (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief.
CR 60.02 is an extraordinary remedy. It is not a substitute for an RCr 11.42
motion alleging claims of ineffective assistance of counsel or for direct appeal of
the judgment. Grounds or issues that could have been raised or were raised in an
RCr 11.42 proceeding or on direct appeal cannot be raised in a CR 60.02 motion.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). See also McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (holding that CR 60.02 is not a
-5- separate avenue of appeal in addition to other remedies but is available only to
raise issues which cannot be raised in other proceedings).
In the instant case, Bodytko was precluded from seeking relief under
CR 60.02 for at least two procedural reasons. First, he initially pleaded guilty to
all counts of the indictment and in doing so waived his right to direct appeal. The
plea was not conditioned on the right to appeal the double jeopardy issue. A
voluntary, unconditional plea agreement waives all defenses other than that the
indictment did not charge an offense. Jackson v. Commonwealth, 363 S.W.3d 11,
15 (Ky. 2012). Second, Bodytko did in fact raise the double jeopardy issue in his
subsequent RCr 11.42 motion.
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RENDERED: MARCH 26, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0466-MR
TERRY BODYTKO APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 18-CR-00258
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES.
JONES, JUDGE: Terry Bodytko (Bodytko), pro se, appeals from the Muhlenberg
Circuit Court’s order denying his CR1 60.02(e) and (f) motion to set aside a portion
of his conviction on grounds of double jeopardy. Having reviewed the record and
being otherwise sufficiently advised, we affirm.
1 Kentucky Rules of Civil Procedure. I. BACKGROUND
On November 16, 2018, Bodytko was indicted in Muhlenberg County
on charges of: 1) trafficking in controlled substance in the first degree, two or
more grams of methamphetamine; 2) trafficking in controlled substance in the
second degree, buprenorphine; 3) trafficking in synthetic drugs, synthetic
marijuana; 4) promoting contraband in the first degree; and 5) being a persistent
felony offender in the first degree.
On February 11, 2019, Bodytko entered into a plea agreement with
the Commonwealth. In exchange for his agreement to plead guilty on counts one
through four outlined above, the Commonwealth amended the indictment to reduce
the persistent felony offender in the first degree charge to persistent felony
offender in the second degree. After accounting for the enhancement under the
persistent felony offender in the second degree statute, the trial court sentenced
Bodytko to twelve years’ imprisonment on count one, as well as ten years’
imprisonment each on counts two through four. The sentences on each of the four
counts were to run concurrently with one another, but consecutively with time
being served on previous, unrelated convictions. The trial court entered an order
and judgment of sentence consistent with the parties’ plea agreement. Bodytko did
not file a direct appeal from the judgment.
-2- On September 10, 2019, Bodytko moved the trial court, pro se, to
“Vacate, Set Aside, Or Correct Judgment and Sentence Pursuant to RCr[2] 11.42
and 10.26.” In his motion, Bodytko argued he was denied effective assistance of
counsel when his defense counsel allowed him to plead guilty “to promoting
contraband in violation of double jeopardy to trafficking.” The court set a hearing
date of January 31, 2020 on the motion and appointed counsel for Bodytko for
subsequent proceedings.
In addition to its legal arguments, Bodytko’s motion more completely
described the facts underlying the charges against him:
On July 15, 2018; [sic] in Muhlenberg County, Kentucky State Police were called to the Green River Correctional Complex to investigate drugs being trafficked into prison. Correctional Officers at the prison conducted a cell search of Terry Bodytko. . . . and located the following drugs in a Coke Cola [sic] stash can that contained, [a] small zip lock baggie with methamphetamine residue in it, 9 orange strips of suboxone individually wrapped in cellophane, 2 baggies synthetic drugs (spice) approx. 1 gram, 3 baggies of methamphetamine (1 gram each), 1 unwrapped baggie of methamphetamine approx. 2 grams (total 5 gms), and what appeared to be a debt ledger and phone numbers.
Prior to the January 31, 2020 hearing, the Commonwealth and
Bodytko entered into another agreement, memorialized by an “Agreed Order to
Amend Charges,” dismissing counts two and three and vacating the ten-year
2 Kentucky Rules of Criminal Procedure.
-3- sentences for each. Again, the sentences were to run concurrently, resulting in a
conviction as to fewer charges but ultimately the same term of twelve years. The
agreed order also indicated that the “pending RCr 11.42 motion is withdrawn.” No
hearing was held.
On February 28, 2020, Bodytko filed a motion for relief under CR
60.02(e) and (f), seeking to set aside the conviction and sentence imposed on
February 11, 2019 as amended on January 31, 2020. Like Bodytko’s previous RCr
11.42 motion, his motion under CR 60.02 contended that the trial court’s act of
sentencing of him under both counts one and four amounted to double jeopardy
under the Fifth Amendment of the United States Constitution and Section 13 of the
Kentucky Constitution.3
Ultimately, the trial court concluded that Bodytko’s CR 60.02 motion
was procedurally barred because he failed to raise double jeopardy earlier in the
proceedings; alternatively, the trial court determined that Bodytko’s convictions
for trafficking and promotion of contraband did not violate double jeopardy.
Accordingly, the trial court denied Bodytko’s CR 60.02 motion by order entered
March 19, 2020.
This appeal followed.
3 The CR 60.02 motion did not address any additional grounds.
-4- II. STANDARD OF REVIEW
We review the trial court’s denial of a motion pursuant to CR 60.02
under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86
(Ky. App. 2000). An abuse of discretion occurs when a “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).
III. ANALYSIS
The relevant portion of CR 60.02 provides:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or other proceeding upon the following grounds: . . . (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief.
CR 60.02 is an extraordinary remedy. It is not a substitute for an RCr 11.42
motion alleging claims of ineffective assistance of counsel or for direct appeal of
the judgment. Grounds or issues that could have been raised or were raised in an
RCr 11.42 proceeding or on direct appeal cannot be raised in a CR 60.02 motion.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). See also McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (holding that CR 60.02 is not a
-5- separate avenue of appeal in addition to other remedies but is available only to
raise issues which cannot be raised in other proceedings).
In the instant case, Bodytko was precluded from seeking relief under
CR 60.02 for at least two procedural reasons. First, he initially pleaded guilty to
all counts of the indictment and in doing so waived his right to direct appeal. The
plea was not conditioned on the right to appeal the double jeopardy issue. A
voluntary, unconditional plea agreement waives all defenses other than that the
indictment did not charge an offense. Jackson v. Commonwealth, 363 S.W.3d 11,
15 (Ky. 2012). Second, Bodytko did in fact raise the double jeopardy issue in his
subsequent RCr 11.42 motion. That motion was disposed of by an agreement in
which he received substantive relief, i.e., the dismissal of two counts contained in
his original judgment of conviction. While that relief may not have related
specifically to his double jeopardy claim, it was obtained in exchange for
withdrawing the entire RCr 11.42 motion. Having voluntarily agreed to accept the
amended judgment, Bodytko cannot now attempt to reassert double jeopardy.
In addition to being procedurally barred, Bodytko’s convictions do not
violate the prohibition against double jeopardy. While Bodytko argues that the
presence of the same methamphetamine established his convictions for trafficking
in the first degree and promoting contraband in the first degree, triggering double
jeopardy, as the trial court pointed out, the record is replete with references to other
-6- contraband located by prison officials at the time of the investigation. Thus, the
convictions under counts one and four could have been established by wholly
independent evidence. However, even if the convictions did rely on the same
methamphetamine, double jeopardy is not implicated because each conviction
requires proof of a fact which the other does not. Turner v. Commonwealth, 345
S.W.3d 844, 847 (Ky. 2011). Trafficking requires that a drug be possessed with
the intent to sell or transfer. KRS4 218A.010(56). This is not a necessary element
of promoting contraband. Likewise, promoting contraband requires that the
defendant be a person in a penitentiary, KRS 520.050(1)(b), which is not an
element of trafficking.
III. CONCLUSION
For the reasons set forth above, we affirm the Muhlenberg Circuit
Court’s order denying Terry Bodytko’s CR 60.02 motion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Terry Bodytko, pro se Daniel Cameron Burgin, Kentucky Attorney General of Kentucky
Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
4 Kentucky Revised Statutes.
-7-