RENDERED: AUGUST 28, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of 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-001933

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 

CR1 60.02 and RCr2 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.
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guilty plea to three counts of first-degree sexual abuse of a victim less than twelve 

years of age. We affirm.

In 2009, while 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 guilt, 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 counts, 

to run concurrently for a total of ten years’ imprisonment. Because Wilcox was 

still a juvenile when final judgment 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Wilcox’s probation was revoked in March 2015 for, among other violations, failure 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, Wilcox filed the motions which 

are the subject of this appeal alleging that the Jefferson District Court did not 
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properly consider the factors set out in KRS3 640.010 in transferring the

proceeding to circuit court and that the Commonwealth failed to meet its burden of 

proof concerning the charges against him. 

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

claims of error failed both on their merits and as barred by the doctrine of laches. 

Citing the district court’s findings regarding the seriousness of the offenses

charged 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), 

for 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 

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

of the 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, extraordinary 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) (emphases 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 

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

v. Commonwealth, 799 S.W.2d 51, 55 (Ky. App. 1990).
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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 palpable 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 determination 

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 principle:

Entry of a voluntary, intelligent plea of guilty has long 

been held by Kentucky Courts to preclude a postjudgment 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 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. 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.
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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 circuit 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, CONCURS.

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

BRIEFS 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