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# Commonwealth o f Kentucky Court of Appeals

NO. 20 2 0

- CA

- 0 379

- MR

JOR DAN WISE APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HON ORABLE THOMAS D. WIN GATE , JUDGE ACTION NO

. 1 6

- CR

- 0 0 26 4

- 001

COMMON WEALTH OF KENTUCKY APPELLEE

AND

NO. 2021

- CA

- 0 137

- MR

JORDAN WISE APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE , JUDGE ACTION NO. 16

- CR

- 00 2 64

- 001

COMMONWEALTH OF KENTUCKY APPELLEE- 2

- OPINION AFFIRMING
** ** ** * * * *
BEFORE: JONES , MAZE , AND TAYLOR , JUDGES

. JONES , J UDGE : Jordan Wise appeals from two orders entered by the Franklin Circuit Court de nying t wo s eparat e m otion s to v acate his s entence pursuant to RCr 1
11.4 2 , CR 2 60.02 , or CR 60.03

. After a thorough r evie w of the record, w e affirm

. I. B ACKGROUND Wise and his co - d efendant , Austin May, w ere charged in Fr anklin Circuit Court with offenses relating to the home invasion of an ac quaintance,
seventeen

- year - old Noah Rasenfoss. On the morning of Aug ust 4, 2016, Noah and his friend , Le e Crisci l l is , were sleeping when the y heard a knock on the do o r . When Noah answ er ed the door, Wise and May forced the ir way in side. At this point, Wise engaged in a ph ys ical altercation with Noah, while May ran to Noah ’ s

room . Ma y wou ld later admit at Wise ’ s trial that he was specifically l ooking for a small lo ck

bo x or s afe i n Noah ’ s bed room which he knew contain ed N oah ’ s

sa vings

. Wise and May were initially weari ng bandan as and hood ed sweatshirts to disgui se th eir appearances ; howe ver, the bandanas slipped down off

1 Ken tuck y Rules of Crimin al Procedure.

2 Kentucky Rules of Civil Procedur e.- 3

-

their faces during the fighting

. While Lee was hel p ing N oah try to fight off Wise, May emerged from Noah ’ s bed room with the safe. A short scuffle continued among the four young men , in the course of which Noah suff ered some injur ies , inclu ding a split wound to his head. Wis e and May eve ntua lly ma naged to escape with the safe

.

After patching up his inju ries and telephon ing his mother , Noah left the house with Lee in a n attempt to locate Wise and M a y and Noah ’ s sa fe

. Noah ’ s mother happened to be f

riendly with May ’ s mother, and the two w om en als o began

se arch ing the neighbor hood for Wi se and May

. May ’ s mother repeatedly called May ’ s cellular tele phone, in an attempt to get him to return th e safe and thereby avoid i nvo lving the police

. May ’ s mother was unable to con vince Ma y to return the s a fe , but she learned from her son that Wise and May ’ s mot ive for the crime
was to acquire bond money for a third friend, Ravon Woodhouse, who had been recently ar

rested. Noah an d Le e ultimately reported the home invasion to the Frankfort Po lice Department

. Wise and May were arrested the next day a nd charged with first

- degree robbe ry and second

- degree assault. May accepted a guilty pl ea and thereafter testified agains t Wise at h is t rial.

At Wise ’ s trial, the Commonwealth presented testim ony from No ah
and L ee, bot h of whom iden tified Wise and May as the perpetrators of the home invasion. Both Noah and Lee recognized the two intruders because they all had- 4

-

attended the sam e high s cho o l . In addition , both Noah and Lee had known May from ch i ldhood onward, wit h Lee spe cifi cally stating that he had known May

“ almost [his] whole life. ” The Commonwealth also presented testimony from
Noa h ’ s mother and May ’ s mother about their part in th e se arch, includ ing testimony from May ’ s mother about her pho ne conversations w i th her s on. Finally, the Commonwealth prese nted testimony from May, who admitted he and Wise had robbed Noah during this incident , although he denied there was any sort of phy sica l altercation . He also t estified that the robbery was Wi se ’ s id ea and moti v ated by Wise ’ s desi re t o provide bond for Woodhouse

.

Wise ’ s defe nse a t trial was center ed on shak ing Noah and Lee ’ s
po sitive identifications of Wise and May as the intru der s. Dur ing cross examin ation , Wise ’ s counsel specifically attem pte d to draw the jury ’ s att ention t o the fact that the statements N oah a nd Lee provided to police did not id en tify Wise and May b y name. The defense a lso attempted to show that Noah and Lee had d riv e n around their neighborhood and accused other young men of being the
pe r petrator s b efore th en accus ing Wise and May. The defense int roduced testimony from Daniel Childre ss and Chris Ma ys (no relationship to the co

defendant) , b oth of who m testified th at N oah had erroneously accused Childress and Mays ’ s son of the robber y. F i nally, W ise testifi ed in his own defense, claiming that h e, his g irlfriend , and May went to the detention center and b onded- 5

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Woodhouse out wit h their own mo ney , then went back to hi s a p a rtment. I n a somewhat com

bative exc hange wi th the pros ecutor , Wise al s o testifi ed that his
fa ther was wea lthy and drove a lu xury a uto mobile , and so Wise had no need to rob
anyone. After the close of evidence in the case and following deliberation, t he j ury found Wise guilty of first

- degree robbery 3 and fourt h

- degree assaul t

. 4 Befor e the penalty phas e, the prosecutor, defense co unsel, and the trial court conver se d at the bench and mistakenly agree d that the penalty for first

- d egree robbery i n this

ca se w ould be subject to par ole eli gibility after ser ving twen ty percent of t h e
sentenc e. 5 Both the prosecut or and defense counse l present ed arguments to the jury grounded in this belie f. After deliberation, the jury r ecommended a term of

3 Kentucky Revised Statutes (KRS) 51 5 .020, a Class B felo ny.

4 KR S 508.030 , a Class A misdeme anor.

5 Interpr etation of KRS 439.340 1 , regarding parole fo r violent offenses, repea tedl y appears as a n issue i n our appellate courts. The “ violent offend er ” d esignati on is significant for tho se convicted of a crime because v iolent offender s are not eligible for parole un til eighty

- five perce nt of the sentence ha s been served . KRS 439. 3 401 ( 3)(a). KRS 4 39.3 401(1) defin es violent offenders as those who have been convicted of or who have plead ed gu ilty to cap ita l offe nses, Cl as s A felonies, or Class B f elonies involving death or serious physi cal injur y to a victim. The statute also direct s th e trial court to designate in it s ju d gment if a victim suffer s deat h or serious p hysical injury. Appel lants freque n tly cl a im th at a trial court ’ s fai lu re to ide ntify death or serious physical injury must mean that vio lent offe nder sentencing will not appl y. However, KRS 439. 3401(1) prov ides a list of offenses for which conviction is automatically considered to be a vio lent o ffense, regardless of wheth er death or serious physical injury has been suffered by the victim , and KRS 439. 3401(1)(n) enumerates f ir st

- degree robbery a s one of those offenses

. See, e.g. , Lee v. Ke nt ucky Dep ’ t of Corrections , 610 S.W.3d 254 , 262

- 6 3 (Ky

. 2 020) ; Benet v. Commonwealth , 2 53 S.W.3d 528, 533 (Ky. 2008) ; Fambrough v. Dep ’ t of Corrections , 184 S.W. 3d 561, 563 (Ky. App . 200 6)

.- 6

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twe lve ye ar s ’ imp ri s o nment for the robbery conviction and a s ix

- month sentenc e for the assau l t convict ion.

Following the trial, but before final sentencing, the prosecuto r, Wise ’ s
tr ial cou nsel , and the trial court learned of their mistake regarding parole el igibility
f or f irst

- degree rob bery

. To remedy th e error, the trial cou rt sentenced Wi s e to a
te rm of ten years ’ imp risonment, the minimum sentence for a first

- degree robbery conviction

. Never thel ess, in his sole issue on appeal, Wise asserted the trial court had er ron e ously permitted counsel to misadvi se t he jury regarding parole el igi bil i t y. Th is Court affirmed th e conviction and sentence on direct appeal in an unpublished o pinion

. Wise v. Commonwealth , No. 2018

- CA

- 000 2 52

- MR, 2018 WL 6721317 ( Ky. App. Dec. 21 , 20 18 )

. We noted that “ nothing could be accomplished by resent encing , ” becaus e Wise had already receive d the mi nimum

s entenc e , and he “ raised no claim of error support ing a reversal of the guilty phase

ver dict[

. ] ” Id . at *2.

On December 26, 2019 , with the aid of his appe llate counsel, Wise moved to vacate his conv i ction under RCr 11.42 , arguing he s uffered ine ffective assistance of trial counsel

. Wise specifically argued th at trial cou nsel had : (1) failed to advise him that KRS 439.3401 required him to se rve eighty

- five percent
of his se ntence for first

- degree rob bery before bei ng eligible for pa role; (2) failed to advise him as to the range of penalties for first

- degree robbery or second

- degree- 7

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a ssault; (3) failed to advise him of the Commonwealth ’ s plea off e r; and (4) failed to impeach witnesses at his trial with their prio r in consistent statements. The trial
court denied this motion on February 2 5, 2020, and Wise filed his not ice of app eal
on M arc h 13, 2020.

Shortly after filing the notice of appeal st emm i ng from the denial of his RCr 11.42, Wise retained new c ounsel and f ile d a se cond motion to vacate judgment pur suant to RCr 11.42, CR 60.02, or CR 60.03. In this motion, Wise

ar gue d he suffered ineffective assistance of appel late counsel ( IAAC) when h is

a ttorney “ fail[ed] to raise significant and reversi ble is sues on dir ect appeal t hat, essentially, for feited his right to a review of those errors that o ccurred during t he trial; and then improperly re presented [Wise] in a motion pur suant to RCr 11.42,

w hen it was patently cle ar that previous counsel ’ s own perfor mance was a t i s sue in said 11.42. ” (Record in No. 202 1

- CA

- 013 7 (R.) at 1.)

In t his second motion, Wise c laimed the following: (1) appella te counsel failed to brief a mistake in the jury instr ucti ons , resulting in a non unanimous verdict; (2) appella te cou nsel failed to brief certain allegedly improper references to co - defendant May ’ s guilty plea and conviction ; (3) appellate counsel faile d to brief the prosecutor ’ s imp roper impeachment of May, his ow n witn ess ; and ( 4) appellate counsel labored under an act ual conflict of in t er es t by contin u ing as counsel on an RCr 11.42 motion. Wi se admitted that RCr 11.42 motions- 8

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alleging ineffective assistance of post conviction counsel are ordinarily disallo wed, bu t he argued that re lief was proper here because the se IAA C c laims could not hav e been presented in the previous motion because of his prev ious attorney ’ s conflict of interest in do ing so. In the event of his current claims not being cognizable unde r RC r 1 1.42 , Wise urged the trial court to consider them under C R 60.02 or CR 60. 03. On October 2 , 2020, the trial co urt deni ed the motion i n a very thorough fourteen

- page opi nion which considered and rejected each of Wise ’ s new IAAC arguments. The trial cou rt also concluded that Wise ’ s claims did not entitle him to relief under CR 60.02 or C R 60.03. Wise subsequently filed a new notice
of appeal ste mming from the denial of this motion, and both ap peals were consolidated for our revie w as follows.
II. S TANDA RDS OF R EVIEW Because Wise presents multiple competing vehicle s seeking relief , we
must briefly address the various standards of revie w for each

. F irst, a su ccessful petition for relief under RCr 11.42 based on ineffective assistance of counsel must

sur vive th e twin p rongs of “ p erfor mance ” and “ prejudice ” provided i n Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) , ac cord Gall v. Commonwealth , 702 S.W.2d 3 7 (Ky. 1985). The “ performance ” pro ng of Strickland requires as fo llow s:

Appellan t must s how that counsel ’ s performance was defici ent. This is done by show ing that counsel made- 9

- errors so serious that counsel was not functioni ng as the

“ counsel ” guarantee d the defendant by the Sixth Amendme nt, or that counsel ’ s represent atio n f ell belo w an obj ect ive s tandard of reasonableness.
Par rish v. Commonwealth , 272 S.W.3d 161, 168 (Ky. 2008) ( internal quota tion marks and citations omi tted). The “ prejudice ” prong requires a showing that

“ counsel ’ s errors were so serious as to de priv e t he defen dant of a f air t rial , a trial whose result is rel iable

. ” Commonwealth v. M cGorman , 489 S.W.3d 731, 736 (Ky. 2016) ( quoting Strickl and , 466 U.S. at 687, 104 S. Ct. at 2064 ).

Both Strickland prongs must be met b efore relief pursuant to RCr
11. 42 may be gran ted

. “ U nle ss a defendant makes both showings, it cannot be said that the c onvicti on . . . resulted from a breakdown in the adversa ry p rocess tha t renders the result unreliab le. ” Strickland , 46 6 U.S. at 687, 1 04 S. Ct. at 2064

. This is a ve ry diffic ult stan dard to mee t. “ Surmounting Strickland ’ s high bar is never an easy task. ” Padilla v. Kentucky , 559 U.S. 356, 371, 130 S. Ct. 1473,
148 5, 176 L. Ed. 2d 284 (2010). We r eview counsel’s performance under Strickl and de novo

. McGorman , 4 89 S .W.3d at 736

.

Second , the standard of review for RCr 11. 42 is alt ered slightly when address ing IAAC claims. To show ineffective assista nce of appe llat e counsel, the defendant must show “ the issue appellate counsel failed to brief was ‘ clearly stronge r ’ t han the i ssues that it did brief on appeal. ” Commonwealt h v. Poll ini , 437 S.W.3d 144, 149 ( Ky. 2014) (quoting Hollon v. Commonwealth , 33 4 S.W.3d 43 1,- 10

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4 36 (Ky. 2010)). Ineffective assistance of appellate counsel also “ requires a showing that absent co unse l ’ s defic ient performance there is a reasonable probability tha t t he appeal would have succe eded. ” Hollon , 334 S.W.3d at 437

.

Third, “ [w] e review the denial of a CR 60.02 mo tion for a n abus e of discretion. ” Diaz v. Com monwealth , 479 S.W.3d 90, 92 (K y. A pp. 2015) (citing Partin v. Commonwealth , 337 S.W.3d 639, 640 (Ky. App. 2010) )

. “ T he test f or ab u se of discretion is whether the trial judge ’ s deci sion was arbitrary, unreasonable, unfair, o r unsupported by sound legal p rinciples. ” Commonwealth v.
En glis h , 993 S. W.2d 941, 945 (Ky. 1999)

. “ The burden of proof in a CR 6 0.02 proceeding f

alls squa rely o n the movant to affirmatively allege facts which, if t rue, justify vacating the judgment and further allege special circums tances tha t justify
CR 60.02 re lief

. ” Foley v. Commonwealth , 425 S.W.3d 880 , 885 (Ky. 2014) ( internal q uotation marks and citatio ns omitted). “[W] e will affirm the lower
court ’ s dec isio n unless there is a showing of some ‘ fl agrant miscarriage of justice. ’” Id . at 886 (quoting Gross v . Co m monwealt h , 648 S.W.2d 853, 858 (Ky. 1983 ) )

. Finally, “ CR 6 0.03 ‘ is intended as an equitabl e form of relief when no other avenue exists. ’ ” Jackson v. Commonwealth , 6 40 S.W.3d 99, 103 (Ky. A pp. 2022) (quoting Meece v. Commonwealth , 529 S.W.3d 281, 295 (Ky . 2017) )

. Like- 11

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CR 60.02 motions , “ [ a ] trial court ’ s denial of a C R 60.03 motion is also rev iewed for abuse of discretion. ” Id . at 101 (citations o mitt ed).
III. A N ALYSIS Wise present s a single claim relating to in effective assistance of his trial counsel, as outlined in his initial RCr 11.42 motion

. Wise argues t hat he
suf fer ed prej u dice when his t rial counsel misadvised him regarding the range of penal ties he could face for first

- degree robbery. He contend s t hat, because the prosecutor and trial cou nsel bot h agreed to the mistaken b elief that first

- degree robbery had twen ty

- percent parole eligi bil ity , this is prima facie evidence that he was not advise d co rrectly p rior to tri al regarding the Commonwealth ’ s plea offer

. However, “ [i] f it is easier to disp ose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be follow ed. ” Strickland , 466
U.S. at 6 97 , 104 S. C t. at 20 69

.

Here, we ag ree with the trial court that Wise suffer ed no prejudice as a result of the pur

p orte d error. The Commonwealth ’ s plea offer was for a term of
ten years ’ incarceration if W is e pleaded guilty to first

- degree robbery , and t h is is the sentence Wise received fr om the trial court after his conviction

– a lesser
sentenc e th an the one re com m ended by the jury , and one that resulted from an error committed by the Commonwealth, not trial cou nsel. W ise argue s that, as a remedy, he should receiv e the “ origina l ” plea offe r, which would be a s entence of- 12

-

ten years for first

- degr ee r obbery, at th e co ntemplated twenty

- percent parole eligibility. However, any first

- degre e robbery conviction must conform to the eighty

- five perce nt parole eligibility sp elled out in KRS 439.3401 bec a use

“ sentences falling outside the permissible sente ncin g range canno t st and uncorrected. ” McClanahan v. Commonwealth , 308 S.W.3d 694, 700 (Ky. 2010)

. This maxim appli es equally to sentences exceeding s tatut or y ranges as wel l as those which are lower than the statutory min im um. Id . (citing Neace v.
Commo nwea lth , 978 S.W. 2d 3 19, 322 (Ky. 1998) )

. In short, Wise received the minimum s entence possible for any first

- d egree robbery convictio n . T he trial court
correct ly determi ne d Wise suffered no prejudi ce from t rial cou n sel ’ s p urport edly erroneous ad vice

.

W ise ’ s remaining i ssue s on appeal stem from his second post conviction motion for relief , which argues for relief under RCr 11.42, CR 60.02, and CR 60.03. The trial court foun d the second RCr 11.42 motion to be successi ve and y et elected to enter tain the s u bsta nce of th e cl aims proffered in tha t motion. We agree with the trial court that the second RCr 11.42 motion is

su ccessive , and we may affirm for that reason alone. “ [I] t is well

- settled that an appellate court may affirm a lower court for any reason s uppo rted by the r ecor d. ” McCloud v. Commonwealth , 286 S.W.3d 780, 786 n.19 (Ky. 2009)

.- 13

- “ Kentucky courts have repe atedly ruled that once a criminal defendant
moves to vaca te his sen tence under RCr 11.42, he is not entitled to another bite at the apple. ” Ow ens v. Common weal th , 512 S.W.3d 1, 14 (Ky. App. 2017) (citing
Gross , 648 S.W.2d at 857 )

. Wise does not deny th e successiv eness of the motion, but he c ontend s he is entit led to that second bite at the app le because h is first RCr 11.42 motion was fi led by a n at torney wh o ha d a conflict of interest in doing so. However, at its root, this argument is grounded in ineffe ctive assista nce of postconviction counsel , not IAAC. Wi se is attempt ing to use his appellate attorney ’ s perceived mistake in f iling the first RCr 11.42 mo tion as an avenue through which to file a successive RC r 11.42 motion. Aside from the problem of

su ccess iveness , t his is procedurally im p roper for another r eason; Kentucky law does not currently recognize claims of ine ffective assistance of p ost conviction

cou nsel : We directly addressed the issue of ineffective assistance

of RCr 11.42 counsel in Hollon , wherein we stated “[f]or further clarity, we additionally emphasize that [ineffective assistance of appellate counsel] claims ar e limited to co unsel ’ s perfo rman ce on direct appeal; there is no counterpart for counsel ’ s performance on RCr 11.42 motions or o ther requests for postconviction relief.” Sanders v. Com monwealth , 339 S.W.3d 427, 435 (Ky. 2011) (quoting Hollon , 334 S.W.3d a t 437 )

. F or th ese reasons , we w ill not consider the issue s presented in Wise ’ s second postconviction motion pursuant to RCr 1 1. 42.- 14

- Next, we must consider whether the trial court abuse d its discretion when it determined issues in Wise ’ s second postconviction motion did not warrant

r elie f under CR 60.02

. The trial court corre ctly observed that “ C R 60.02 is not an additional avenue to reli tigate issues previously b efore the Court, or pre sent issues that reasonably could have been presented by direct appeal or RCr 11.4 2
pr oce ed ings. ” (R. at 38

- 3 9 ) (citing McQueen v. Commonwealth , 948 S.W.2d 41 5, 416 (Ky. 1997) (citing Gross , 648 S.W .2d at 855

- 5 6) )

. The trial court considered the issues i n the second motion and determined that Wise could have presented th ese issues in h is f

irst appeal and in his first RCr 11.42 motion

. Going f urther, the
trial court evaluat ed Wise ’ s claims and deter mined they did n ot entitle him to relief under CR 60.02 b e cause they did not “ rise [] to the level of manifest i nju s tice to call into questio n th e outcome of the p roceeding. ” (R. at 39.)

The trial court did not abuse its discretion

. First, the only issue s present in the motion are for IAAC . They are p ut ative t rial errors which Wise belatedly asserts should have been briefed by appellate cou nsel

. As such , the trial court correctly reco gnized that Wise shoul d have presented these issues in previous
procee dings and not in a CR 60.02 motion. “ CR 60.02 is no t a s eparate avenue of appeal to be pursued in addition to other remedies, but is a vail able only to rais e is sues which cannot be rais ed in other proceedings. ” McQueen , 948 S.W.2d at
416.- 15

- Finally, the tr ial court determined Wise was not entitled to relief unde r CR 60.0 3 for the same reasons he was not entitled to rel ief under CR 60.0 2. We
agree. As st ated pre viously, “ CR 60.03 ‘ is intended as an equi table form of relief when no other avenue exists. ’ ” J ackson , 640 S.W.3d at 103 (quoting Meece , 529 S.W.3d at 2 95 )

. As outlined by the trial court supra , Wis e ’ s issues could have been presented through dir e ct appe al or in his first RCr 11.42 motion. Because Wise could ha ve pre sented these issues through oth er avenues, CR 60.03 relief is inappropriate here. A ddit ionally, pursuant to the language of the Rule, CR 6 0. 03 relief shall not be granted “ if the gro und of r elief sought has been denied in a proceeding by motion under Rule 60.02 [.] ” CR 60.03. The tria l court correctly ascertained that a denial of relie f und er CR 60.0 2 makes relief under CR 60.03

unava i lable ; see Foley , 425 S.W.3d at 888 ( holding that whe n re lief is denied under CR 60.02, “ i t follows that Appellant is not en titled to relief under CR
60.03 ” ).
I V . C ONC LUSIO N

F or t he foregoi ng reasons, we affirm the Franklin Circuit Court ’ s

o rder s d enying relief under RCr 11.42 , CR 60.02, and CR 60.03.

ALL CON CUR

.- 16

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BRIEF S FOR APPELLANT: Jeffrey A. Lawso n Covington, Kentucky F. Todd Lewis Louis ville , Kentucky BRIE F FOR APPELLEE : Dan iel Came ro n Atto rney General of Kentucky Robert G. Johnson Special Assistant Attorney General Vers ail les , Kentucky