RENDERED: AUGUST 28, 2020; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2019

- CA

- 000353

- MR

PROMISE WILCOX APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE AUDRA J. ECKERLE , JUDGE ACTION NO. 09

- CR

- 0 0 1933

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE ; MAZE AND K. THOMPSON , JUDGES.

MAZE
, JUDGE : Promise Wilcox appeals the denial of his motions pursuant to

CR 1 60.02 and RCr 2 10.26 by which he sought to vacate a judgment based upon his

1 Kentucky Rule of Civil Procedure.

2 Kentucky Rule of Criminal Procedure.- 2

-

guilty plea to three counts of first

- degree sexual abuse of a victim less than twelve
years of age. We affirm.

In 2009, w h ile still a juvenile, Wilcox was referred to the Jefferson
County grand jury for proceedings as a youthful offender. The grand jury
subsequently indicted Wilcox on two counts of first

- degree sodomy and one count

of first

- degree sexual abuse stemming from his conduct involving a five

- year

- old
neighbor child whom he was babysitting. Wilcox and the Commonwealth

thereafter reached a settlement under which the Commonwealth , in exchange for
Wilcox’s plea of guil t, agreed to amend the sodomy charges down to first

- degree

sexual abuse and to recommend a sentence of ten years on each of the three count s , to run concurrently for a total of ten years’ imprisonment

. Because Wilcox was
still a juvenile when final judgme nt was entered on his plea in 2010, he was
originally committed to the Department of Juvenile Justice.

After his eighteenth birthday, Wilcox was returned to Jefferson
Circuit Court and in August 2011
, was sentenced as an adult to serve ten years’
imprisonment. Although he was granted shock probation in November 2011,

Wilcox ’s probation was revoked in March 2015 for, among other violations, failure
to complete sexual offender treatment. In 2018, Wilc ox filed the motions which
are the subject of this appeal alleging that the Jefferson District Court did not- 3

-

properly consider the factors set out in KRS 3 640.010 i n transferring the
proceeding to circuit court and that the Commonwealth failed to meet its burden of
proof concerning the charges ag ainst him.

In denying Wilcox’s motions, the circuit court concluded that his

claims of error fail ed both on their merits and as barred by the doctrine of laches

. Citing the district court’s findings regarding t h e serious ness of the offense s
charge d and the young age of the victim, the circuit court held that the dictates of

KRS 640.010 (2)(c) had been satisfied in that two or more of the statutory factors
weighed in favor of transfer. Thus, the circuit court concluded that Wilcox failed

to demonstrate the extraordinary showing required to justify CR 60.02 relief

. With
regard to Wilcox’s claim concerning the sufficiency of the evidence against him,

the circuit court cited Taylor v. Commonwealth
, 724 S.W .2d 223 (Ky. App. 1986),

f or the proposition that by pleading guilty a defendant forfeits the right to
challenge the sufficiency of the evidence against him at some later date.

Finally, the circuit court held that the doctrine of laches would also

forec lose Wilcox’s claims, finding that a delay of over eight years to seek relief for

known grievances constituted an unreasonable delay under the circumstances.
This appeal followed.

3 Kentucky Revised Statute.- 4

- Like the circuit court, we commence our analysis with an examination

of th e requirements for obtaining CR 60.02 relief. Our Supreme Court in Gross v.

Commonwealth settled any question as to when such extraordinary relief is

available:
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 and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02

. CR 60.02 is not intended merely as an additional opportunity to raise Boykin defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinar y relief. Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.
648 S.W.2d 853, 856 (Ky. 1983) (emp hases added)

. Because Wilcox offers no
explanation as to why his claims could not have been pressed via RCr 11.42, he is
not entitled to avail himself of the extraordinary remedy provided in CR 60.02.

Even had such relief been available, Wilcox’s claims fail on their

merits. We concur in the circuit court’s conclusion that the district court fully
complied with the dictates of KRS 640.010 and that Wilcox’s voluntary guilty plea

waive d all defenses other than that the indictment charges no offense. See Centers

v. Com monwealth
, 799 S.W.2d 51, 55 (Ky. App. 1990).- 5

- Finally, our conclusions regarding the availability of CR 60.02 relief
foreclose Wilcox’s contention that he is entitled to avail himself of the palpable
error rule. RCr 10.26 provides:

A palpab le error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a de termination that manifest injustice has resulted from the error

. We again emphasize that Wilcox forfeited the right to challenge the evidence
against him by pleading guilty. In Taylor , this Court cogently explained the
rationale underpinning that princip le:

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. E.g. King v. Commonwealth , Ky., 408 S.W.2d 622, 623 (1966); Harris v. Commonwealth , Ky., 441 S.W.2d 143 (1969); Bartley v. Commonwealth , Ky., 463 S.W.2d 321 (1971). 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 offens es 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 com m itted the crimes to which he pled guilty. To permit a convicted defendant to do so would result in a double benefit in that defendants who elect to plead guilty would receive the benefit of the plea bargain which ordinarily precedes such a plea along with the advantage of later challenging the sentence resulting from the plea on grounds normally arising in the very trial which defendant elected to forego.- 6

-

724 S.W.2d at 225. Thus, having freely entered a guilty plea, Wilcox cannot now
invoke the palpable error rule to challenge the sufficiency of the evidence against

him. Because the ci rcuit court did not err in its determination that Wilcox’s CR

60.02 claims failed on their merits, there can be no demonstration of manifest
injustice under RCr 10.26

.

Accordingly, we affirm the judgment of the Jefferson Circuit Court.

CLAYTON , CHIEF JUDGE, CONCUR S

.
THOMPSON , K., JUDGE, CONCURS IN RESULT ONLY.

BRIEF S FOR APPELLANT:

Promise Wilcox, pro se Burgin, Kentucky BRIEF FOR APPELLEE:

Daniel Cameron Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky