RENDERED: MAY 28, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0969-MR

JAMES LOUIS BEVERLY JR. APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MARY M. SHAW, JUDGE

ACTION NO. 13-CR-002024-001

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.

ACREE, JUDGE: James Louis Beverly Jr., pro se, appeals the Jefferson Circuit 

Court’s order denying his CR1 60.02 motion for post-conviction relief. After 

careful consideration, we affirm. 

 

1 Kentucky Rules of Civil Procedure. 
-2-

BACKGROUND AND PROCEDURE

In 2013, Beverly committed armed robbery at a Captain D’s in 

Jefferson County. While fleeing the scene, he intentionally rammed his vehicle 

into a vehicle operated by Janice Cunningham. Her vehicle was stopped at a red 

light and blocking his escape route. Beverly was indicted by a Jefferson County 

grand jury on July 25, 2013, on one count of first-degree robbery and one count of 

second-degree assault. Beverly subsequently pleaded guilty to first-degree robbery 

and second-degree wanton endangerment.2 In exchange for his plea, Beverly 

received ten (10) years for first-degree robbery and 365 days for second-degree 

wanton endangerment, to be served concurrently. Because Beverly was classified 

as a violent offender, he was required to serve a minimum of 85% of his sentence

before probation or parole eligibility. KRS3 439.3401(3)(a). 

On April 5, 2019, Beverly filed a CR 60.02 motion. He alleged three 

grounds of relief: (1) KRS 439.3401(3)(a) is unconstitutionally vague and violates

the separation of powers doctrine; (2) he was improperly classified as a violent 

offender; and (3) his indictment should be dismissed because the Commonwealth’s 

Attorney knowingly elicited false testimony from an officer before the grand jury 

 

2 The second-degree assault charge was amended to second-degree wanton endangerment. 

3 Kentucky Revised Statutes. 
-3-

in order to secure the indictment. The circuit court denied the motion. This appeal 

followed. 

ANALYSIS

Our standard of review of a trial court’s denial of a CR 60.02 motion 

is whether the trial court abused its discretion. Richardson v. Brunner, 327 S.W.2d 

572, 574 (Ky. 1959). 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).

On appeal, Beverly again challenges the constitutionality of KRS 

439.3401(3)(a) and the alleged prosecutorial misconduct during grand jury 

proceedings. Before proceeding, we note that Beverly’s contentions of error are 

not cognizable in his CR 60.02 motion. It is well established that: 

A defendant who is in custody under sentence or on 

probation, parole or conditional discharge, is required to 

avail himself of RCr[4]11.42 as to any ground of which he 

is aware, or should be aware, during the period when the 

remedy is available to him. Civil Rule 60.02 is not 

intended merely as an additional opportunity to relitigate 

the same issues which could “reasonably have been 

presented” by direct appeal or RCr 11.42 proceedings. 

RCr 11.42(3); Gross v. Commonwealth, supra, at 855, 

856. The obvious purpose of this principle is to prevent 

the relitigation of issues which either were or could have 

been litigated in a similar proceeding.

 

4 Kentucky Rules of Criminal Procedure. 
-4-

McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).

In other words, “[t]he language of RCr 11.42 forecloses the defendant 

from raising any questions under CR 60.02 which are ‘issues that could reasonably 

have been presented’ by RCr 11.42 proceedings.” Gross v. Commonwealth, 648 

S.W.2d 853, 857 (Ky. 1983).

In the instant case, Beverly pleaded guilty, waiving his right to a 

direct appeal. Nonetheless, his claims should have been raised via a RCr 11.42 

motion. It does not appear from the record that Beverly sought such relief, nor has 

he presented the Court with any explanation as to why his claims could not have 

been brought within the timeframe allotted by RCr 11.42. Accordingly, he is not 

entitled to the extraordinary remedy provided by CR 60.02. Regardless of this

procedural flaw, however, Beverly’s claims fail on the merits. 

Beverly first contends that KRS 439.3401(3)(a) is unconstitutionally 

vague and violates the separation of powers clause. Specifically, he asserts that 

KRS 439.3401(3)(a)’s requirement that violent offenders serve 85% of their term 

before being eligible for parole usurps the executive branch’s power to grant 

parole, vesting it with the judiciary.5 We disagree. 

 

5 The circuit court declined to address the merits of this argument, in part, because Beverly did

not notify the Attorney General of his constitutional challenge prior to final judgment. KRS 

418.075(1). Beverly did, however, notify the Attorney General prior to the circuit court’s order 

denying his CR 60.02 motion. Regardless, “[I]t is well-settled that an appellate court may affirm

a lower court for any reason supported by the record.” Kentucky Spirit Health Plan, Inc. v.
-5-

“It was determined in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 

1133, 63 L. Ed. 2d 382 (1980), that the classification of crimes and the length of 

stay in a state penitentiary is purely a matter of the prerogative of the legislature.” 

Rudolph v. Corr. Cabinet of Kentucky, 710 S.W.2d 235, 236 (Ky. App. 1986). 

Accordingly, it was within the Legislature’s power to set a minimum length of 

time that violent offenders must serve for certain crimes. Contrary to Beverly’s 

belief, KRS 439.3401(3)(a) does not vest the judiciary with the ability to determine 

parole eligibility. That power remains with the parole board, which will determine, 

after Beverly serves 85% of his sentence, whether he should be released on parole. 

See Harrison v. Robuck, 508 S.W.2d 767, 768 (Ky. 1974). Furthermore, we see no 

ambiguity in the application of the statute that would render it unconstitutionally 

vague. 

Next, Beverly argues his indictment should have been dismissed

based on prosecutorial misconduct. He contends the prosecutor presented false 

and misleading testimony to the grand jury to secure his indictment. Specifically, 

he speculates that an officer falsely testified that Beverly used force, threatened to 

use force, and injured Cunningham, when the evidence showed otherwise.

 

Commonwealth Fin. & Admin. Cabinet, 462 S.W.3d 723, 729 (Ky. App. 2015) (citation 

omitted). And here, we affirm on the merits of Beverly’s claim. 
-6-

Beverly, however, cites no evidence to support his accusation.

6

 More 

importantly, “[a] defendant who elects to unconditionally plead guilty admits the 

factual accuracy of the various elements of the offenses with which he is charged.” 

Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986). Here, Beverly 

admitted to entering Captain D’s armed with a gun, threatening employees with the 

immediate use of force to steal money, forcing the store manager to empty the 

contents of the store safe, forcing the employees into a bathroom, depriving them 

of their cellphones, and intentionally ramming Cunningham’s vehicle. (Trial 

Record at 115). Therefore, we see no possible way for Beverly to “demonstrate a 

flagrant abuse of the grand jury process that resulted in both actual prejudice and 

deprived the grand jury of autonomous and unbiased judgment.” Commonwealth

v. Baker, 11 S.W.3d 585, 588 (Ky. App. 2000).

CONCLUSION

 Based on the foregoing, we affirm the Jefferson Circuit Court’s order 

denying Beverly’s CR 60.02 motion for post-conviction relief.

ALL CONCUR. 

 

6 Beverly does state that Cunningham made a 911 call, in which she stated she was not injured. 

The Court is unaware of whether this evidence was known to the prosecutor or testifying officer 

at the time of the grand jury hearing. Assuming this to be true, however, we note that Beverly’s 

second-degree assault charge was amended down to second-degree wanton endangerment, which 

does not require physical injury. KRS 508.070. 
-7-

BRIEF FOR APPELLANT:

James Louis Beverly, Jr., pro se

Lexington, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General 

Frankfort, Kentucky