RENDERED: JULY 23, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1081-MR

JEROME THOMAS APPELLANT 

v. 

APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE

ACTION NO. 11-CR-00042

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.

COMBS, JUDGE: Appellant, Jerome Thomas (Thomas), appeals from an order of 

the McCracken Circuit Court denying his motion to amend its final judgment. 

After our review, we affirm.

On April 26, 2012, the McCracken Circuit Court entered an order 

following Thomas’s plea of guilty to “Count 1- Murder; Count 2- Tampering with 
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Physical Evidence; and Count 3 (as amended) -- Theft by Unlawful Taking under 

$500” and sentencing Thomas to a total of 25-years’ imprisonment.

On July 15, 2020, Thomas, pro se, filed a motion to amend the final 

judgment, asking the McCracken Circuit Court that he be relieved of the remainder 

of his sentence pursuant to CR1 60.02(f), CR 60.03, and the Eighth and Fourteenth 

Amendments of the United States Constitution. Thomas argued that he was at an 

increased risk of contracting COVID-19 due to his incarceration. He claimed that

he is at higher risk of complications if he does contract COVID-19 due to his 

underlying medical conditions, which include diabetes, asthma, hypertension, 

obesity, and chronic pain syndrome. 

In an order entered on August 10, 2020, the trial court denied 

Thomas’s motion. The court explained that Kentucky courts have found CR 60.02 

motions to be an inappropriate avenue for relief based upon circumstances 

unrelated to the trial proceedings, citing Ramsey v. Commonwealth, 453 S.W.3d 

738 (Ky. App. 2014), (physical ailments are not trial defects), and Wine v. 

Commonwealth, 699 S.W.2d 752 (Ky. App. 1985) (family hardship does not 

amount to trial defect or otherwise relate to trial proceedings). Based upon the 

same circumstances relating to COVID-19, Thomas alternatively sought relief 

under CR 60.03, which “allows for independent actions for ‘relief from a 

 

1 Kentucky Rules of Civil Procedure.
-3-

judgment, order or proceeding on appropriate equitable grounds,’ so long as the 

[stated] grounds . . . have not been denied previously under CR 60.02 nor . . . timebarred by CR 60.02.” The court further explained that a movant seeking CR 60.03 

relief must show: that no other remedy is available; that his own fault, neglect or 

carelessness did not create the circumstances upon which relief is sought; and that 

a recognized ground for the equitable relief -- such as fraud, accident or mistake --

exists, citing Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005). 

The trial court concluded as follows:

Movant seeks relief from judgment based upon the 

ongoing COVID-19 pandemic, though not claiming to be 

suffering from the virus. . . . [T]he relief sought cannot 

be granted by CR 60.02 motion, because there is no 

alleged error in the underlying trial proceedings or in 

pronouncement of the judgment. Likewise, because the 

Movant has not presented circumstances sufficient to 

warrant vacating the remainder of his sentence as 

appropriate equitable relief, the independent action 

brought pursuant to CR 60.03 is denied.

Thomas appeals. The standard of our review on appeal is abuse of 

discretion.

Whether a Defendant is entitled to the 

extraordinary relief provided by CR 60.02 is a matter left 

to the “sound discretion of the court and the exercise of 

that discretion will not be disturbed on appeal except for 

abuse.” Brown v. Commonwealth, 932 S.W.2d 359, 362

(Ky. 1996) (quoting Richardson v. Brunner, 327 S.W.2d

572, 574 (Ky. 1959)). “The test for abuse of discretion is 

whether the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal 
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principles.” Foley v. Commonwealth, 425 S.W.3d 880,

886 (Ky. 2014) (citing Commonwealth v. English, 993

S.W.2d 941, 945 (Ky. 1999) (internal citations omitted)). 

Meece v. Commonwealth, 529 S.W.3d 281, 285 (Ky. 2017). Thomas argues that 

the trial court abused its discretion in denying his motion to amend because the 

claims he raised meet all requirements under CR 60.02(f), CR 60.03, the Eighth 

and Fourteen Amendments to the United States Constitution as well as Sections 2 

and 17 of the Kentucky Constitution. We cannot agree. 

The Commonwealth draws our attention to Gribbins v. 

Commonwealth, No. 2020-CA-0635-MR, 2021 WL 1164461 (Ky. App. Mar. 26, 

2021),2in which this Court addressed a substantially identical argument. Gribbins 

requested relief from the remainder of his sentence. He alleged that he was at an 

increased risk of contracting COVID-19 due to his incarceration and at an 

increased risk of complications due to his immunocompromised condition from 

cancer treatment. This Court held that:

Gribbins is not entitled to relief under CR 60.02(f). A 

trial court may relieve a party from a final judgment upon 

a showing of a “reason of an extraordinary nature 

justifying relief.” CR 60.02(f). This rule “functions to 

address significant defects in the trial proceedings.” 

Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. 

App. 2014) (citing Wine v. Commonwealth, 699 S.W.2d 

752, 754 (Ky. App. 1985)). . . .

 

2 CR 76.28(4) (“[U]npublished Kentucky appellate decisions, rendered after January 1, 2003, 

may be cited for consideration by the court if there is no published opinion that would adequately 

address the issue before the court.”).
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This Court has determined “results of incarceration” are 

not proper considerations under CR 60.02(f). Wine, 699 

S.W.2d at 754. Later, in Ramsey, 453 S.W.3d at 739, this 

Court held physical ailments are not trial defects and do 

not qualify as “claims of an extraordinary nature” 

entitling someone to relief under CR 60.02(f). We are 

similarly persuaded that Gribbins’ risk of contracting 

COVID-19 is not a proper consideration for relief under 

CR 60.02(f) because it does not relate to trial 

proceedings. Therefore, the trial court did not abuse its 

discretion in denying his CR 60.02 motion.

Next, Gribbins’ claim under CR 60.03 must fail.

Rule 60.02 shall not limit the power of any 

court to entertain an independent action to 

relieve a person from a judgment, order or 

proceeding on appropriate equitable 

grounds. Relief shall not be granted in an 

independent action if the ground of relief 

sought has been denied in a proceeding by 

motion under Rule 60.02, or would be 

barred because not brought in time under the 

provisions of that rule.

CR 60.03. “This rule is intended as an equitable form of 

relief when no other avenue exists.” Meece v. 

Commonwealth, 529 S.W.3d 281, 295 (Ky. 2017). 

Because Gribbins’ argument on the same grounds fails 

under CR 60.02(f), it follows that he is also not entitled 

to relief under CR 60.03. . . .

Id. at *1-2. For the same reasons, we conclude that Thomas is not entitled to relief 

under CR 60.02(f) or CR 60.03 in the case before us.

Thomas also contends that the denial of his motion violates his right 

to equal protection under the Fourteenth Amendment. He essentially argues that 
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he is not eligible for release due to COVID-19 (unlike non-violent inmates)

because he pled guilty to a violent crime. Although Thomas’s motion to amend 

does state that it was filed pursuant to the Fourteenth Amendment, it does not 

appear that Thomas raised this argument in the trial court. Accordingly, we may

not consider it for the first time on appeal. Skaggs v. Commonwealth, 488 S.W.3d 

10 (Ky. App. 2016).

 Thomas also argues that his continued incarceration during the 

COVID-19 pandemic would deny him his right to be free from cruel and unusual 

punishment under the Eighth Amendment to the United States Constitution. 

Another panel of this Court addressed that very issue in Williams v.

Commonwealth, No. 2019-CA-0964-MR, 2021 WL 943753, at *3 (Ky. App. Mar. 

12, 2021),

3

and held that:

Williams further maintains that his continued 

confinement violates the Eighth Amendment prohibition 

against cruel and unusual punishment where he is unable 

to take sufficient protective action against contracting 

COVID-19, given his heightened vulnerability for serious 

complications therefrom. While we are not insensitive to 

Williams’s concerns, this argument likewise fails because 

the claim does not arise from the trial proceedings or the 

sentence itself but, rather, from the present conditions of 

Williams’s confinement. Conditions of confinement 

claims are civil in nature; as such, the sentencing court is 

not the proper forum to address them. See, e.g., Ramsey, 

453 S.W.3d at 739 (CR 60.02 not the appropriate means 

for seeking relief on deprivation of desired medical 

 

3 CR 76.28(4).
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treatment while incarcerated), and KRS[4] 454.415 

(inmates raising conditions of confinement claims must 

exhaust administrative remedies prior to seeking relief by 

civil proceedings). Because we find that the sentencing 

court was not the correct forum to raise this claim, the 

court did not err in denying relief.

For those same reasons, we also conclude that the trial court did not 

err in denying relief in the case before us. 

We AFFIRM the order of the McCracken Circuit Court denying 

Thomas’s motion to amend the final judgment and sentence.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Jerome Thomas, pro se

Burgin, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron 

Attorney General of Kentucky

Perry T. Ryan 

Assistant Attorney General

Frankfort, Kentucky

 

4 Kentucky Revised Statutes.