RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-001429-MR

ANTONIO GORDON APPELLANT

APPEAL FROM KENTON CIRCUIT COURT

v. HONORABLE KATHLEEN LAPE, JUDGE

ACTION NO. 17-CR-00229

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

DISMISSING AND REMANDING

**   **  **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

GOODWINE, JUDGE: Antonio Gordon appeals the Kenton Circuit Court’s July 

25, 2019 order denying his motion to amend its April 24, 2019 judgment and 

sentence regarding his guilty plea.1 After reviewing the record, we dismiss the 

appeal and remand with instructions.

 

1 Neither party filed a written motion.
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BACKGROUND

The facts of this case are uncontested. In March 2017, Gordon was 

indicted on five counts of first-degree trafficking in a controlled substance and one 

count of trafficking in a simulated controlled substance. Gordon requested to 

proceed with his case pro se, and following a Faretta2 hearing, the trial court 

granted his request. 

Following two days of trial testimony, a Kenton County jury found 

Gordon guilty on all charges. At that point the trial court ordered a brief recess 

before beginning the sentencing phase. After the recess, Gordon refused to return 

to the courtroom, telling a bailiff that the only way he would return was if he was 

physically dragged into the courtroom. The trial court allowed Gordon to remain 

in his cell and instructed standby counsel to represent Gordon during the 

sentencing phase. 

During the sentencing phase, both the Commonwealth and standby 

counsel elicited testimony, and personally argued, that Gordon would be parole 

eligible after serving 20% of his sentence.3 After deliberation, the jury 

 

2 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). 

3 Regrettably, this was a mistake—and the reason this case is before us today. Both the 

Commonwealth and standby counsel’s assumptions that Gordon would be parole eligible after 

serving 20% of his sentence were incorrect. Unbeknownst to either attorney, an amendment 

attached to Kentucky Revised Statutes (KRS) 218A.1412 required Gordon to serve 50% of his 

sentence before becoming eligible for parole.
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recommended a sentence of thirteen years’ imprisonment. But before final 

sentencing, the Commonwealth reinstated its original plea offer. It informed the 

trial court that the plea offer was made to eliminate potential appellate issues 

spurring from discovery issues, which arose during trial. Under the plea 

agreement, Gordon would plead guilty to the same offenses, but with a 

recommended sentence of eight years’ imprisonment on each count of trafficking 

heroin, running concurrently. And the agreement made no mention of parole 

eligibility. “Cautiously,” the trial court sentenced Gordon consistent with the plea 

agreement. 

Three months after the trial court entered its judgment, the 

Commonwealth received correspondence from Gordon complaining that he had 

learned he would become parole eligible only after serving 50% of his sentence, 

not 20%. After researching the issue, the Commonwealth discovered that this was 

indeed correct. At that point, the Commonwealth contacted the trial court, via email, and requested to be put on the docket.4

 The e-mail does not have a filestamped date of entry on it. Notably, neither the Commonwealth nor Gordon filed 

a formal motion.

 

4 The e-mail read: “We can call it [on the docket] a 60.02, 11.42, or whatever but I feel like 

[Gordon] should [not] have to serve an additional 2 years because of my ignorance to the 2016 

statutes now that we are 3 years later.” Record (R.) at 169. 
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The trial court held a hearing on July 24, 2019, without the benefit of 

a formal motion. Consequently, the hearing was confusing and without 

particularity. Once the hearing began, the trial court announced to the parties, “I 

don’t know what you are filling out. I don’t even know what is going on.” Video 

Record (V.R.): 7/24/19, 1:44:40-1:44:44. In response, the Commonwealth stated: 

The issue is this, I contacted your office and asked that it 

be put on the docket because Mr. Gordon had written me 

a letter. I looked into what he said and the long story 

short is that I feel somewhat responsible, and I think 

[Gordon] pled [sic] guilty to something, not knowing 

what he was pleading guilty to. 

Id. at 1:44:45-1:45:00. The Commonwealth further stated, “I did not realize that I 

was offering him 50%, and so I put it on the record, on the docket, to try and 

clarify it because I feel somewhat responsible.” Id. at 1:45:51-1:46:02. At that 

point, standby counsel replied, “That is correct, Your Honor.” Id. at 1:46:03. 

After further repeated statements by both the Commonwealth and 

standby counsel regarding their confusion and misstatements of the law to the jury, 

and to Gordon, the trial court responded, “So what are you asking me to do?” To 

which the Commonwealth replied, “I would like to enter an eight-year 

recommendation at 20% and let the record reflect what [Gordon] thought he was 

pleading to.” Id. at 1:48:12-1:48:32. The trial court denied the motion and stated, 

“Percentages are not a reason to overturn a sentence.” Id. at 1:50:15-1:50:17. 

Gordon appealed. 
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ANALYSIS

This case turns on the procedural missteps of trial counsel. However, 

we cannot let the trial court off the hook here. When the trial court received the email from the Commonwealth advising it of the Commonwealth’s concerns, the 

trial court should have instructed the Commonwealth to file a formal motion or 

have Gordon file one. That simple instruction would have alleviated the confusion

at the hearing, which has now resulted in an appeal that cannot be heard on the 

merits.

From our review, there are no justiciable issues which we can address. 

In his brief, Gordon explains that he is appealing the trial court’s refusal to amend 

his judgment. Brief of Appellant at p. 3. But throughout the brief’s analysis, 

Gordon argues for us to reverse the trial court based on CR5 60.02. Either way, 

Gordon does not have a procedural leg to stand on.

First, in a criminal case, “[a] final or appealable judgment is a final 

order adjudicating all the rights of all the parties in an action or proceeding, or a 

judgment made final under Rule 54.02.” CR 54.01. “[A] [f]inal judgment in a 

criminal case means sentence. The sentence is the judgment.” Burton v. Stewart, 

549 U.S. 147, 156, 127 S. Ct. 793, 798, 166 L. Ed. 2d 628 (2007) (quoting Berman 

v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 82 L. Ed. 204 (1937)). Gordon 

 

5 Kentucky Rules of Civil Procedure.
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was sentenced on April 24, 2019. At that point, all issues relating to Gordon’s 

guilt and sentence were adjudicated.

Because the trial court’s judgment was final on April 24, 2019, the 

parties only had ten days to file a motion to alter, amend, or vacate before the 

court. Under CR 59.05, “[a] motion to alter or amend a judgment, or to vacate a 

judgment and enter a new one, shall be served not later than 10 days after entry of 

the final judgment.” 

Here, three months passed before the parties notified the trial court of 

their mutual mistake. Given this, the parties were procedurally time-barred by CR 

59.05 from bringing the motion before the trial court. But even if there was no 

time bar, neither party made a formal request under CR 59.05 to alter, amend, or 

vacate the trial court’s April 24, 2019 judgment. Specifically, when the trial court 

asked the parties what they wanted it to do, the Commonwealth—which did not 

appeal the trial court’s denial—responded, “I would like to enter an eight-year 

recommendation at 20% and let the record reflect what [Gordon] thought he was 

pleading to.” Furthermore, the Commonwealth stated, “I did not realize that I was 

offering him 50%, and so I put it on the record, on the docket, to try and clarify it

because I feel somewhat responsible.” (Emphasis added). Gordon and his standby 

counsel requested nothing. But ultimately, this section of our analysis is not 

germane to our ultimate ruling because other than a couple of fleeting sentences 
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throughout his brief, Gordon makes no argument under CR 59.05—but does under 

CR 60.02. Thus, we now turn to his CR 60.02 argument. 

Second, Gordon’s CR 60.02 argument severely misses the mark. To 

begin, Gordon cites our standard of review for CR 60.02 cases. Further, in his 

analysis, Gordon argues that “[t]he judgment, as it was entered on April 24, 2019, 

led to an unintended outcome because of mistake, inadvertence, and excusable 

neglect on the part of both the Commonwealth and defense standby counsel. CR 

60.02.” Brief of Appellant at p. 9. In closing his argument, Gordon proffers that 

“Civil Rule 60.02 was designed to correct these types of errors, especially when 

the Commonwealth acknowledges the error and attempts to correct it.” Id. at pp. 

9-10. 

Regardless of the argument’s merit, we cannot substantively address 

the issue. Simply put, Gordon, nor his standby counsel, brought a CR 60.02 

motion before the trial court. In fact, neither “civil rule” or “60.02” was uttered by 

either party during the July 24, 2019 hearing. The only time CR 60.02 is 

mentioned was when the Commonwealth e-mailed chambers, writing, “We can 

call it [on the docket] a 60.02, 11.42, or whatever but I feel like [Gordon] should 

[not] have to serve an additional 2 years because of my ignorance to the 2016 

statutes now that we are 3 years later.” (Emphasis added). Clearly, the 
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Commonwealth simply wanted the issue to be on the docket before the trial court 

and did not specifically request the hearing on CR 60.02 grounds. 

Furthermore, during the hearing, neither the Commonwealth, Gordon, 

nor standby counsel addressed the elements of CR 60.02. Yes, they both explained 

their mistake and why they felt it needed to be corrected, but CR 60.02’s elements 

were never mentioned. While Gordon briefly mentions “mistake, inadvertence, 

and excusable neglect” in his brief, none of these issues—in a CR 60.02 context—

was addressed, or even mentioned. See CR 60.02(a) (“On motion a court may, 

upon such terms as are just, relieve a party or his legal representative from its final 

judgment, order, or proceeding upon the following grounds: (a) mistake, 

inadvertence, surprise or excusable neglect[.]”). And even more telling, the trial 

court did not even know why the hearing was requested—and halfway through the 

hearing asked, “So what are you asking me to do?” This confusion on the part of 

the trial court would have been eliminated or non-existent had the trial court 

required the parties to file a motion to bring the matter before the court. 

However, at the point of the trial court’s question, neither party asked 

the trial court to relieve Gordon from its final judgment under CR 60.02. A

cursory sentence in an e-mail from the Commonwealth, stating to call the motion 

before the trial court “a 60.02, 11.42, or whatever,” is not justifiable grounds to 

argue the hearing was based on CR 60.02. In fact, all the sentence proves is both 
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parties’ haste to get the issue before the trial court, no matter what grounds it took 

to get them there. The trial court compounded the problem by not requiring the 

parties to file a motion. Motions are to be made, and argued, with particularity. 

What matters is what something is, not what it is called. Calling a Berkshire pig a 

Kentucky thoroughbred will not get the pig into the Kentucky Derby. 

Similarly, retroactively calling an unnamed, unspecified motion a CR 

60.02 motion will not give litigants standing before this Court. Based on these 

reasons, we hold this appeal is not properly before us and, thus, do not reach the 

merits. However, the procedural quagmire presented by the lack of diligence on 

the part of counsel and the trial court can still be corrected. Nothing in this opinion 

precludes either party from bringing a properly-filed CR 60.02 motion before the 

trial court. 

If a CR 60.02 motion is filed,

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the trial court must weigh the 60.02 

factors and determine if, in fact, a mistake was made. Both parties concede a 

mistake was made. The trial court must then determine if the newly-revised plea 

offer, which it is not bound to accept, is one that it would have accepted had the 

Commonwealth made that offer following the jury’s recommendation with full 

 

6 A CR 60.02(a) motion must be filed within one year of entry of the judgment. However,

motions under subsection (e) and (f) must be filed within a reasonable time. Had the trial court 

insisted that a motion be filed when the matter was first brought to its attention, a CR 60.02(a) 

motion would have been timely. Therefore, this trial court cannot summarily dismiss a CR 60.02 

motion as time-barred if filed within a reasonable time of rendition of this Opinion.
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knowledge and disclosure of the correct parole eligibility. If the revised plea offer 

is one which the trial court would have accepted, then it would be proper for the 

trial court to amend its judgment under CR 60.02 upon the proper filing of such 

motion. 

CONCLUSION

Based on the foregoing analysis, this appeal is DISMISSED and 

REMANDED with instructions to the trial court to exercise its inherent authority 

to correct the palpable error7 discussed herein in a manner consistent with the 

procedure set forth above. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Steven N. Goens

Frankfort, Kentucky 

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge 

Assistant Attorney General 

Frankfort, Kentucky 

 

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It would behoove the trial court to grant the CR 60.02 motion to amend the judgment when

filed, which will reflect the parties’ agreement. Doing so will avoid the subsequent filing of a

Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for ineffective assistance of counsel 

based on misadvice concerning parole eligibility. Our Supreme Court has held that counsel’s 

misadvice regarding parole eligibility prior to a guilty plea constitutes ineffective assistance of 

counsel. Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012). Not only could the guilty 

plea be set aside, but so, too, could the sentencing phase of the trial due to misinformation given 

to the jury concerning parole eligibility if a judgment was entered based on the jury’s verdict.
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