RENDERED: JULY 9, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1655-MR

SHERMAN DEJUAN DAVIS APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE MITCH PERRY, JUDGE

ACTION NO. 94-CR-002195

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Sherman Dejuan Davis (“Appellant”) appeals from an 

opinion and order of the Jefferson Circuit Court denying his motion for a new trial 

pursuant to Kentucky Rules of Civil Procedure (“CR”) 60.02 and CR 60.03. He 

argues that he received ineffective assistance of counsel, that there was a Brady1

 

1 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 
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violation when he did not receive exculpatory documents prior to trial, and that the 

double jeopardy clause was violated when the same evidence was used to convict 

him for two offenses. We conclude that a claim of ineffective assistance may not 

properly be raised via CR 60.02 and CR 60.03; that Appellant’s trial counsel did 

receive the exculpatory evidence that Appellant claims was withheld; and, that the 

proper procedure for raising a double jeopardy claim is via direct appeal. For these 

reasons, we affirm the opinion and order of the Jefferson Circuit Court.

FACTS AND PROCEDURAL HISTORY

In 1995, Appellant was convicted in Jefferson Circuit Court of 

Murder and Criminal Abuse in the First Degree.2 His conviction was affirmed by 

the Kentucky Supreme Court in Davis v. Commonwealth, 967 S.W.2d 574 (Ky. 

1998). 

On June 18, 2001, Appellant filed a Kentucky Rules of Criminal 

Procedure (“RCr”) 11.42 motion alleging ineffective assistance of counsel. The 

motion was denied on November 13, 2001. A panel of this Court affirmed in part, 

vacated in part, and remanded for an evidentiary hearing. On remand, and after an 

extensive delay, the trial court conducted a hearing and again denied Appellant’s 

RCr 11.42 motion. This Court affirmed the trial court’s decision on September 21, 

2012.

 

2 Kentucky Revised Statues (“KRS”) 507.020 and KRS 508.100.
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On March 14, 2018, Appellant moved for a new trial based on CR 

60.02 and CR 60.03. In support of the motion, Appellant again argued that he 

received ineffective assistance of counsel, that there was a Brady violation when 

the Commonwealth failed to turn over exculpatory documents prior to trial, and 

that the double jeopardy clause was violated. On September 4, 2019, the trial court 

denied the motion upon determining that an ineffective assistance of counsel claim 

must be raised, if at all, via RCr 11.42, that Appellant did receive the exculpatory 

materials prior to trial, and that the double jeopardy claim should have been raised 

on direct appeal to the Kentucky Supreme Court. This appeal followed.3

ARGUMENT AND ANALYSIS

Appellant, pro se, argues that the Jefferson Circuit Court committed 

reversible error in denying his motion for CR 60.02 and CR 60.03 relief. 

Though it is unclear from Appellant’s written argument, he appears to argue that 

his trial counsel failed to provide effective assistance. He goes on to argue that 

newly discovered evidence was improperly withheld from him prior to trial, which 

proves that he could not have committed the offense. He also asserts that a double 

 

3 On October 9, 2020, the Department of Public Advocacy moved to withdraw its representation 

of Appellant upon determining that this appeal is not one that a reasonable person with adequate 

means would be willing to bring at his own expense. See KRS 31.110(2)(c). The motion was 

granted, and Appellant proceeded pro se.
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jeopardy violation occurred because the Commonwealth used the same evidence to 

convict him of murder and criminal abuse in the first degree. 

CR 60.02

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.

Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). The standard of 

review on a trial court’s denial of a CR 60.02 motion is whether the trial court 

abused its discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). 

“The test for abuse of discretion is whether the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. 

English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted). CR 60.02 is an 

extraordinary remedy that is “available only when a substantial miscarriage of 

justice will result from the effect of the final judgment.” Wilson v. 

Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). 

RCr 11.42 is the only proper method of asserting a claim of 

ineffective assistance. Gross, supra. Appellant previously prosecuted an RCr 
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11.42 motion in 2001 alleging ineffective assistance of counsel, which was denied 

by the Jefferson Circuit Court and subsequently affirmed by this Court.

4

 

As to the Appellant’s claim of a Brady violation, the Jefferson Circuit 

Court correctly determined that Appellant’s trial counsel did receive the 

exculpatory evidence which Appellant claims was withheld. These documents 

include medical records, family court records, and Cabinet for Health and Family 

Services records.

5

 

Finally, the proper procedure for raising a double jeopardy claim is 

via direct appeal. See Brewster v. Commonwealth, 723 S.W.2d 863, 865 (Ky. App. 

1986). Appellant’s double jeopardy claim should have been raised, if at all, by 

way of his direct appeal to the Kentucky Supreme Court in 1998. The facts and 

law supporting a claim of double jeopardy, if any, were known or should have 

been know when the direct appeal was prosecuted.

CONCLUSION

Grounds of error which can be raised by way of direct appeal or RCr 

11.42, i.e., the double jeopardy and ineffective assistance of counsel claims, cannot 

be raised via CR 60.02. Appellant’s claim of a Brady violation is refuted by the 

 

4 Davis v. Commonwealth, No. 2001-CA-002682-MR, 2004 WL 67643 (Ky. App. Jan. 16, 2004) 

and Davis v. Commonwealth, No. 2010-CA-002170-MR, 2012 WL 4208915 (Ky. App. Sep. 21, 

2012).

5 Transcript of Record at pp. 891, 968, and 980-82.
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record. The Jefferson Circuit Court properly so concluded, and this conclusion is

supported by the record and the law. As such, the circuit court’s decision was not 

arbitrary, unreasonable, unfair, nor unsupported by sound legal principles. We find 

no abuse of discretion. For these reasons, we affirm the opinion and order of the 

Jefferson Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Sherman Dejuan Davis, pro se

Burgin, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Todd D. Ferguson

Assistant Attorney General

Frankfort, Kentucky