RENDERED: NOVEMBER 10, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1425-MR

JEREMY CARAWAY APPELLANT

APPEAL FROM HARLAN CIRCUIT COURT

v. HONORABLE KENT HENDRICKSON, JUDGE

ACTION NO. 11-CR-00182

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES.

CETRULO, JUDGE: In this criminal post-conviction action, Appellant Jeremy 

Caraway (“Caraway”), pro se, appeals from the Harlan Circuit Court order denying 

his motion for relief pursuant to Kentucky Rule of Civil Procedure (“CR”) 60.02. 

For the reasons set forth below, we affirm.
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I. BRIEF HISTORY

In May 2011, Caraway was the pastor at Loyall Church of God in 

Loyall, Kentucky. At that time, Sherry1 was a thirteen-year-old parishioner. 

Members of Sherry’s family discovered inappropriate text messages on her cell 

phone from Caraway, and her family contacted law enforcement. In July 2011, the 

Harlan County Grand Jury indicted Caraway on nine counts involving allegations 

of sexual misconduct. After a jury trial, one acquittal, varying dismissals, and 

numerous appeals,

2 only two counts survived: Caraway remains convicted of 

Count III (sodomy in the second degree) and Count V (sexual abuse in the first

degree). He received a sentence of five years’ imprisonment on each count, served 

consecutively, for a total sentence of 10 years. In May 2021, Caraway filed a 

motion to vacate his judgment pursuant to CR 60.02 (d), (e), and (f).

3

 The trial 

court denied the motion; Caraway appealed.

1

“Sherry” is the pseudonym given to the minor during the direct appeal. Caraway v. 

Commonwealth, 459 S.W.3d 849, 850 (Ky. 2015).

2 Before a May 2013 trial, the court dismissed one count. At the close of evidence, the 

prosecutor agreed not to pursue three other counts. Then, a jury found Caraway guilty of four 

counts but acquitted him of one. Caraway’s direct appeal was unsuccessful, and the Kentucky 

Supreme Court affirmed his conviction. Caraway, 459 S.W.3d 849. Caraway’s motion to 

vacate pursuant to Kentucky Rule of Criminal Procedure (“RCr”) 11.42 resulted in this Court 

vacating and remanding two counts. Caraway v. Commonwealth, No. 2016-CA-001386-MR, 

2017 WL 4464333 (Ky. App. Oct. 6, 2017). The trial court dismissed those two counts. This

appeal addresses Counts III and V.

3 Caraway also listed CR 60.03 in the header of the “Supplement To Be Added to the Civil 

Complaint of Void Judgment And Motion to Vacate Sentence,” but he made no legal argument 

relating to that rule. As a result, the trial court did not address CR 60.03, nor shall we.
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II. STANDARD OF REVIEW

CR 60.02 motions are applicable to criminal cases pursuant to RCr

13.04, and criminal defendants may use this rule to present additional issues not 

specifically available through direct appeals. Gross v. Commonwealth, 648

S.W.2d 853, 856 (Ky. 1983). We review the denial of a CR 60.02 motion under an 

abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.

App. 2000) (citation omitted). “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) (citations 

omitted). Absent a “flagrant miscarriage of justice[,]” we will affirm the trial 

court. Gross, 648 S.W.2d at 858.

III. ANALYSIS

Caraway presented a convoluted argument to the trial court, but he

essentially argued that the court should vacate his sentence because the charges 

were based upon events that were separate and distinct from those events presented 

to the grand jury for his indictment. Specifically, Caraway argued the grand jury 

indictment was based upon sexual conduct that allegedly took place inside a room 

at the church in Loyall, Kentucky, but the trial testimony and jury instructions 

indicated that the illicit contact took place ten miles from the church in Cawood, 

Kentucky. Additionally, he argued that his trial and appellate attorneys were 
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ineffective for failing to challenge jury instructions and venue. Caraway sought

relief under CR 60.02, which states:

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: . . . (d) fraud affecting the proceedings, other 

than perjury or falsified evidence; (e) the judgment is 

void, or has been satisfied, released, or discharged, or a 

prior judgment upon which it is based has been reversed 

or otherwise vacated, or it is no longer equitable that the 

judgment should have prospective application; or (f) any 

other reason of an extraordinary nature justifying relief.

In its order denying the CR 60.02 motion, the trial court found that (1) 

the indictment met the requirements of RCr 6.10; (2) the varying locations 

presented to the grand jury and at trial – Loyall and Cawood – are both in Harlan 

County and therefore did not present a jurisdictional conflict for the trial court; and

(3) the CR 60.02 motion was untimely. On appeal, Caraway presents much of the 

same argument that he presented to the trial court – essentially challenging the 

validity of the indictment – but he fails to understand, apply, or properly defend the 

procedural structure he is attempting to implement.

4

 While pro se litigants are 

sometimes held to less stringent standards than lawyers in drafting formal 

pleadings, Haines v. Kerner, 404 U.S. 519, 521, 92 S. Ct. 594, 596, 30 L. Ed. 2d

4 Caraway also includes a preservation argument based on his misinterpretation of the rules of 

appellate procedure; under CR 76.12, the appellant must preserve an argument for appeal, but 

the appellee does not need to preserve a counter argument.
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652 (1972), Caraway’s appeal fails mightily to meet the requirements of a CR 

60.02 motion. 

First, Caraway brought this CR 60.02 motion under subsections (d), 

(e), and (f), which require that the “motion shall be made within a reasonable 

time[.]” CR 60.02. What constitutes a reasonable time is a matter left to the 

discretion of the trial court. Gross, 648 S.W.2d at 858. Here, a final judgment was 

entered against Caraway in 2013; Caraway filed the present motion in 2021. The 

trial court found that Caraway waived his right to challenge the indictment by 

failing to raise the issue sooner. We agree. Eight years does not constitute a 

“reasonable time” under CR 60.02 (d), (e), and (f), especially considering Caraway 

could have had access to the grand jury indictment during discovery and heard 

Sherry’s testimony during the 2013 trial. See Graves v. Commonwealth, 283

S.W.3d 252 (Ky. App. 2009), where a seven-year delay between sentence and 

motion for relief from judgment of conviction was unreasonable. See also Reyna

v. Commonwealth, 217 S.W.3d 274, (Ky. App. 2007), where a defendant’s motion 

to vacate judgment of conviction on grounds of extraordinary circumstances that 

he was not informed of deportation consequences of his guilty plea, four years

after he entered his guilty plea, was untimely. Caraway attempted to explain his 

delay by stating that he did not receive the grand jury proceedings until June 2019. 

However, we find that argument unpersuasive – even confusing – because he also 
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argues that he relied on that grand jury evidence to his detriment; he stated when 

Sherry testified at trial – as to the “new” location of the illicit actions – he was

“blindsided” and “unprepared.” If he did not receive the grand jury specifics until 

2019, how did he rely on them to his detriment in 2013? Additionally, if Caraway 

was “blindsided” at trial by the change in location, he should have raised the issue 

at that time. “[A]t any time while the case is pending, the court may hear a claim 

that the indictment or information fails to invoke the court’s jurisdiction or to state 

an offense[.]” RCr 8.18(1)(b) (emphasis added). See also Thomas v. 

Commonwealth, 931 S.W.2d 446, 450 (Ky. 1996) (“As [appellant’s] indictment

gave the court jurisdiction and charged an offense, he has waived any defects in 

his indictment by not bringing those defects to the attention of the trial judge.”).

Further, “[t]he structure provided in Kentucky for attacking the final 

judgment of a trial court in a criminal case is not haphazard and overlapping, but is 

organized and complete.” Gross, 648 S.W.2d at 856. A CR 60.02 motion may be 

used to present additional claims not specifically available through direct appeals 

or RCr 11.42 motions. Gross, 648 S.W.2d at 856. On direct appeal, Caraway 

challenged juror selection, the admissibility of additional character evidence, and 

credit for time served. Caraway, 459 S.W. 3d 849. Then, Caraway appealed, 

through a motion pursuant to RCr 11.42, ineffectiveness of counsel as it related to 

jury instructions, jurisdiction, and venue. Caraway, 2017 WL 4464333. For an 
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additional appeal to be successful under CR 60.02, Caraway needed to demonstrate 

why he is entitled to special, extraordinary relief. CR 60.02. Also, he “must 

affirmatively allege facts which, if true, justify vacating the judgment and further 

allege special circumstances that justify CR 60.02 relief.” McQueen v.

Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (citing Gross, 648 S.W.2d at

856). Here, Caraway has not come close to this standard. Therefore, he does not 

get another bite at that appellate apple. 

Finally, the trial court should be afforded deference under the abuse of 

discretion standard of review, and we discern no such abuse. See Brown v.

Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (citation omitted).

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the order of the Harlan Circuit 

Court denying relief under CR 60.02.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Jeremy Caraway, pro se Daniel Cameron

West Liberty, Kentucky Attorney General of Kentucky 

Perry T. Ryan

Assistant Attorney General

Frankfort, Kentucky