RENDERED: DECEMBER 22, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-1389-MR
TIMOTHY ROLLIN APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 18-CR-00950
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.
KAREM, JUDGE: Timothy Rollin, pro se, appeals from the Hardin Circuit
Court’s denial of his motion to vacate judgment and sentence pursuant to Kentucky
Rules of Civil Procedure (CR) 60.02(f). Rollin entered a plea of guilty to second-
degree burglary in 2019 and now claims he could not have been convicted because
he was the tenant of the apartment he was charged with burglarizing. Upon careful review, we agree with the trial court that the motion is procedurally barred and
substantively without merit; consequently, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to Rollin, he and Brooke Shoemaker began dating in May
2018 and lived together sporadically in his apartment in Elizabethtown. Rollin’s
mother leased the apartment and Rollin is listed as a resident on the lease
document in the record. Rollin claims Shoemaker would stay at the apartment for
a week at a time and at one point stayed there for three weeks. She had a key to
the apartment and kept clothes and toiletries there.
On July 9, 2018, Shoemaker obtained an emergency protective order
(EPO) against Rollin that prohibited him from coming within 500 feet of the
apartment or entering it. The EPO was subsequently vacated in an order entered
on July 19, 2018, upon the trial court finding no domestic violence.
Rollin was arrested on August 27, 2018, for violating the EPO and
committing burglary by knowingly entering and remaining unlawfully in the
apartment on July 13, 2018. The warrant alleged that he kicked in the door and
damaged several items in the apartment, including some items belonging to
Shoemaker.
Rollin was indicted for burglary in the second degree and for violating
the provisions of the EPO. On January 29, 2019, he entered a plea of guilty to the
-2- charges. He received a sentence of five years for the burglary charge and twelve
months for the violation of EPO charge, to be run concurrently for a total sentence
of five years, probated for five years.
On November 25, 2019, Rollin filed a motion pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42, alleging his attorneys were ineffective
for failing to present evidence that would have resulted in the dismissal of his case:
specifically, the testimony of eyewitnesses that he was not in the area when the
alleged burglary took place and a copy of the apartment lease showing he was a
resident.
On January 13, 2020, Rollin filed a motion to vacate judgment
pursuant to CR 60.02(f), claiming his arrest was invalid because the arrest warrant
was unsigned.
On February 4, 2020, following a hearing, Rollin’s probation was
revoked for committing a new felony offense and for his admission to continuing
methamphetamine use and manipulation of court-ordered treatment.
On October 6, 2021, the trial court entered an order denying Rollin’s
RCr 11.42 and CR 60.02(f) motions. Rollin appealed from the order but did not
file an appellant’s brief. This Court provided him with additional time to file a
motion for extension of time and tender the brief, but he failed to do so, and his
appeal was dismissed.
-3- On April 28, 2022, Rollin filed his second CR 60.02(f) motion, which
is the subject of the present appeal. He repeated the claim made in his RCr 11.42
motion that he was entitled to extraordinary relief because he could not have been
convicted of burglarizing his own home. The trial court denied the motion on the
grounds that Rollin was not legally allowed to enter the home under the terms of
his EPO, and he intended to commit a crime upon entering the apartment. The trial
court further held that the motion was procedurally barred because Rollin could
have raised the present arguments in his previous CR 60.02 motion and in his RCr
11.42 motion. This appeal by Rollin followed.
STANDARD OF REVIEW
We review the denial of a CR 60.02 motion for an abuse of discretion.
Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015). The test for abuse of
discretion is whether the trial court’s decision was “arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky.1999) (citations omitted). Absent a “flagrant miscarriage of
justice[,]” we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d
853, 858 (Ky. 1983).
ANALYSIS
“The structure provided in Kentucky for attacking the final judgment
of a trial court in a criminal case is not haphazard and overlapping, but is organized
-4- and complete. That structure is set out in the rules related to direct appeals, in RCr
11.42, and thereafter in CR 60.02.” Id. at 856. CR 60.02 motions are limited to
afford special and extraordinary relief not available in other proceedings.
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997).
CR 60.02 was enacted as a statutory codification of the common law
writ of coram nobis. Gross, 648 S.W.2d at 856. The purpose of coram nobis was
to bring pronounced judgment errors before the court which (1) had not been heard
or litigated, (2) were not known or could not have been known by the party
through the exercise of due diligence, or (3) the party was prevented from
presenting due to duress, fear, or some other sufficient cause. Id.
The Kentucky Supreme Court “has attempted to make abundantly
clear . . . that CR 60.02 and RCr 11.42 motions are not to be used to relitigate
previously determined issues.” Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky.
2008). CR 60.02 “is for relief that is not available by direct appeal and not
available under RCr 11.42.” Gross, 648 S.W.2d at 856. It is not intended to afford
a defendant a “second bite at the apple.” Id. at 857.
The trial court determined that Rollin’s motion was procedurally
barred because (1) Rollin previously litigated the claim that he could not have
burglarized his own apartment in his unsuccessful RCr 11.42 motion; and (2) he
could have raised the claim in his previous CR 60.02 motion. Rollin nonetheless
-5- argues that it is not barred because his previous CR 60.02 motion was brought
under CR 60.02(e) rather than CR 60.02(f). This argument is without merit. Our
review of the record indicates his prior motion was brought under section (f), not
section (e). In any event, the proper inquiry is whether he could have raised his
current claim in the earlier CR 60.02 motion under any subsection. Without a
doubt, it could have been raised in that earlier motion and therefore does not merit
extraordinary relief. “[A] defendant is precluded from raising claims which were,
or reasonably could have been, raised in prior proceedings.” Berry v.
Commonwealth, 624 S.W.3d 119, 121 (Ky. App. 2021) (citing Gross, 648 S.W.2d
at 857).
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RENDERED: DECEMBER 22, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-1389-MR
TIMOTHY ROLLIN APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 18-CR-00950
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.
KAREM, JUDGE: Timothy Rollin, pro se, appeals from the Hardin Circuit
Court’s denial of his motion to vacate judgment and sentence pursuant to Kentucky
Rules of Civil Procedure (CR) 60.02(f). Rollin entered a plea of guilty to second-
degree burglary in 2019 and now claims he could not have been convicted because
he was the tenant of the apartment he was charged with burglarizing. Upon careful review, we agree with the trial court that the motion is procedurally barred and
substantively without merit; consequently, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to Rollin, he and Brooke Shoemaker began dating in May
2018 and lived together sporadically in his apartment in Elizabethtown. Rollin’s
mother leased the apartment and Rollin is listed as a resident on the lease
document in the record. Rollin claims Shoemaker would stay at the apartment for
a week at a time and at one point stayed there for three weeks. She had a key to
the apartment and kept clothes and toiletries there.
On July 9, 2018, Shoemaker obtained an emergency protective order
(EPO) against Rollin that prohibited him from coming within 500 feet of the
apartment or entering it. The EPO was subsequently vacated in an order entered
on July 19, 2018, upon the trial court finding no domestic violence.
Rollin was arrested on August 27, 2018, for violating the EPO and
committing burglary by knowingly entering and remaining unlawfully in the
apartment on July 13, 2018. The warrant alleged that he kicked in the door and
damaged several items in the apartment, including some items belonging to
Shoemaker.
Rollin was indicted for burglary in the second degree and for violating
the provisions of the EPO. On January 29, 2019, he entered a plea of guilty to the
-2- charges. He received a sentence of five years for the burglary charge and twelve
months for the violation of EPO charge, to be run concurrently for a total sentence
of five years, probated for five years.
On November 25, 2019, Rollin filed a motion pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42, alleging his attorneys were ineffective
for failing to present evidence that would have resulted in the dismissal of his case:
specifically, the testimony of eyewitnesses that he was not in the area when the
alleged burglary took place and a copy of the apartment lease showing he was a
resident.
On January 13, 2020, Rollin filed a motion to vacate judgment
pursuant to CR 60.02(f), claiming his arrest was invalid because the arrest warrant
was unsigned.
On February 4, 2020, following a hearing, Rollin’s probation was
revoked for committing a new felony offense and for his admission to continuing
methamphetamine use and manipulation of court-ordered treatment.
On October 6, 2021, the trial court entered an order denying Rollin’s
RCr 11.42 and CR 60.02(f) motions. Rollin appealed from the order but did not
file an appellant’s brief. This Court provided him with additional time to file a
motion for extension of time and tender the brief, but he failed to do so, and his
appeal was dismissed.
-3- On April 28, 2022, Rollin filed his second CR 60.02(f) motion, which
is the subject of the present appeal. He repeated the claim made in his RCr 11.42
motion that he was entitled to extraordinary relief because he could not have been
convicted of burglarizing his own home. The trial court denied the motion on the
grounds that Rollin was not legally allowed to enter the home under the terms of
his EPO, and he intended to commit a crime upon entering the apartment. The trial
court further held that the motion was procedurally barred because Rollin could
have raised the present arguments in his previous CR 60.02 motion and in his RCr
11.42 motion. This appeal by Rollin followed.
STANDARD OF REVIEW
We review the denial of a CR 60.02 motion for an abuse of discretion.
Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015). The test for abuse of
discretion is whether the trial court’s decision was “arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky.1999) (citations omitted). Absent a “flagrant miscarriage of
justice[,]” we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d
853, 858 (Ky. 1983).
ANALYSIS
“The structure provided in Kentucky for attacking the final judgment
of a trial court in a criminal case is not haphazard and overlapping, but is organized
-4- and complete. That structure is set out in the rules related to direct appeals, in RCr
11.42, and thereafter in CR 60.02.” Id. at 856. CR 60.02 motions are limited to
afford special and extraordinary relief not available in other proceedings.
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997).
CR 60.02 was enacted as a statutory codification of the common law
writ of coram nobis. Gross, 648 S.W.2d at 856. The purpose of coram nobis was
to bring pronounced judgment errors before the court which (1) had not been heard
or litigated, (2) were not known or could not have been known by the party
through the exercise of due diligence, or (3) the party was prevented from
presenting due to duress, fear, or some other sufficient cause. Id.
The Kentucky Supreme Court “has attempted to make abundantly
clear . . . that CR 60.02 and RCr 11.42 motions are not to be used to relitigate
previously determined issues.” Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky.
2008). CR 60.02 “is for relief that is not available by direct appeal and not
available under RCr 11.42.” Gross, 648 S.W.2d at 856. It is not intended to afford
a defendant a “second bite at the apple.” Id. at 857.
The trial court determined that Rollin’s motion was procedurally
barred because (1) Rollin previously litigated the claim that he could not have
burglarized his own apartment in his unsuccessful RCr 11.42 motion; and (2) he
could have raised the claim in his previous CR 60.02 motion. Rollin nonetheless
-5- argues that it is not barred because his previous CR 60.02 motion was brought
under CR 60.02(e) rather than CR 60.02(f). This argument is without merit. Our
review of the record indicates his prior motion was brought under section (f), not
section (e). In any event, the proper inquiry is whether he could have raised his
current claim in the earlier CR 60.02 motion under any subsection. Without a
doubt, it could have been raised in that earlier motion and therefore does not merit
extraordinary relief. “[A] defendant is precluded from raising claims which were,
or reasonably could have been, raised in prior proceedings.” Berry v.
Commonwealth, 624 S.W.3d 119, 121 (Ky. App. 2021) (citing Gross, 648 S.W.2d
at 857).
Rollin’s motion is also without substantive merit. “A person is guilty
of burglary in the second degree when, with the intent to commit a crime, he or she
knowingly enters or remains unlawfully in a dwelling.” Kentucky Revised
Statutes (KRS) 511.030(1). Rollin claims he did not go back to the apartment that
day; he could lawfully be inside the apartment because he was on the lease; and it
could not be shown he intended to commit a crime in the apartment because he
could not illegally destroy his own property. Essentially, he is arguing that there
was insufficient evidence to support the burglary charge. But because Rollin
entered a valid plea of guilty to the charge, he cannot challenge its evidentiary
basis.
-6- Entry of a voluntary, intelligent plea of guilty has long been held by Kentucky Courts to preclude a post- judgment challenge to the sufficiency of the evidence. The reasoning behind such a conclusion is obvious. A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged. By such an admission, a convicted appellant forfeits the right to protest at some later date that the state could not have proven that he committed the crimes to which he pled guilty.
Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986) (citations
omitted).
Furthermore, there is no dispute that at the time he committed the
burglary, Rollin was subject to an EPO that prohibited him from being within 500
feet of the apartment. Rollin’s reliance on Hedges v. Commonwealth, 937 S.W.2d
703 (Ky. 1996), is misplaced. In Hedges, the appellant was charged with burglary
after his wife let him into her apartment and he grabbed her by the neck after
discovering another man was there. At the time, the appellant was subject to a
domestic violence order (DVO) forbidding him from committing acts of violence
against his estranged wife or disposing of or damaging the couple’s property. The
DVO did not contain a “no contact” provision and the appellant frequently had
contact with his wife regarding their child and with her permission spent the night
at her apartment on several occasions. Hedges, 937 S.W.2d at 704-05. Hedges
held that it would have been unreasonable for a jury to find the appellant guilty of
-7- burglary under this set of facts because “misconduct or criminal conduct does not
become burglary solely by reason of commission of the act on the property of
another.” Id. at 707. In other words, “misconduct by one rightfully on the
premises should not convert that conduct into burglary[.]” Robey v.
Commonwealth, 943 S.W.2d 616, 620 (Ky. 1997) (citing Hedges, 937 S.W.2d
703). By contrast, the EPO in Rollin’s case expressly prohibited him from entering
the apartment. The EPO was in effect on the date the burglary was committed.
Consequently, Rollin was not rightfully on the premises, regardless of whether he
was named on the lease.
This conclusion is fully in accordance with two unpublished opinions
cited by Rollin: Farmer v. Commonwealth, No. 2011-CA-001412-MR, 2012 WL
5042119 (Ky. App. Oct. 19, 2012), not to be published, rev’d, No. 2012-SC-
000756-DG, 2014 WL 5410235 (Ky. Oct. 23, 2014), and Taylor v.
Commonwealth, No. 2021-CA-0346-MR, 2023 WL 2618124 (Ky. App. Mar. 24,
2023). In Farmer, the Court of Appeals held that Farmer’s counsel was ineffective
for failing to raise the defense that he was a tenant-at-will of a cabin he was
charged with burglarizing; the Kentucky Supreme Court reversed on the grounds
that counsel was not ineffective for failing to raise a novel defense that had never
been raised before in Kentucky, explaining: “It is difficult to comprehend how the
failure to assert a tenant-at-will defense – the viability of which is still an open
-8- question – can ever constitute deficient performance.” Commonwealth v. Farmer,
No. 2012-SC-000756-DG, 2014 WL 5410235, at *4 (Ky. Oct. 23, 2014). In
Taylor, the appellant lived in an apartment he shared with his daughter and his
name was on the rental agreement of a television he was charged with unlawfully
removing from the residence. This Court held that “[i]f Taylor did, in fact, reside
with his daughter and had permission to be in her apartment, Taylor could not have
committed second-degree burglary[.]” Taylor, 2023 WL 2618124, at *3. Each of
these cases is clearly distinguishable from Rollin’s because neither Farmer nor
Taylor was subject to an EPO or DVO forbidding them from entering the premises
they were charged with burglarizing.
For the foregoing reasons, the order denying Rollin’s CR 60.02
motion is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy Rollin, pro se Daniel Cameron Burgin, Kentucky Attorney General of Kentucky
Matthew F. Kuhn Solicitor General
Bryan D. Morrow Deputy Solicitor General Frankfort, Kentucky
-9-