RENDERED: APRIL 2, 2021; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2020

- CA

- 0767

- MR
JAMES HENRY BERRY APPELLANT

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE A. C. MCKAY CHAUVIN, JUDGE

ACTION NO. 87

- CR

- 000192

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: DIXON, KRAMER, AND M CNEILL, JUDGES. DIXON, JUDGE: James Henry Berry appeals the order of the Jefferson Circuit
Court denying his fifth CR 1 60.02 motion , entered November 20 , 2019. After careful review of the record, briefs, and law, we affirm.

1 Kentucky Rules of Civil Procedure.- 2

- FACTS AND PROCEDURAL BACKGROUND In 1987, Berry was tried and convicted of murder 2 and being a persistent felony offender (PFO) in the first degree. 3 On direct appeal, the PFO
conviction was vacated , and the matter was remanded with instructions that Berry be resentenced to life imprison ment on the murder conviction

. Berry v.
Commonwealth , 782 S.W.2d 625 (Ky. 1990) , overruled by Chestnut v.
Commonwealth , 250 S.W.3d 288 (Ky. 2008)

. After resentenc ing , Berry appealed arguing a double jeopardy violation. The conviction was affirmed. Berry v.
Commonwealth , No. 19 90

- SC

- 000 794

- MR (Ky. Jan. 16, 1992).

Since his conviction, Berry has filed four other CR 60.02 motions , t he
denial s of which this Court has affirmed each time. 4 Notably, in his third CR 60.02 motion filed in 2006, Berry argue d his sentence was illegal because his trial did not
include a penalty phase at which he could have presented mitigating evidence. In affirming the denial of the motion , a panel of this Court noted that Berr y was precluded f

rom claiming error where : (1) he created the alleged error by his

2 Kentucky Revised Statute s (KRS) 507.020 , a capital offense.

3 KRS 532.080. Persistent felony offender is a status which requires enhanced sentencing provisions.

4 See Berry v. Commonwealth , No. 19 95

- CA

- 0403

- MR (Ky. App. Sep t . 6, 1996); Berry v. Commonwealth , No. 2000

- CA

- 001121

- MR (Ky. App. June 1, 2001); Berry v. Commonwealth , 2008 WL 612457, No. 2007

- CA

- 001094

- MR (Ky. App. Mar. 7, 2008) ; and Berry v. Commonwealth , 322 S.W.3d 508 (Ky. App. 2010).- 3

-

successful objec tion to the application of KRS 532.055, which mandates the bifurcation of felony trials into guilt and penalty phases ; and (2) he failed to timely
raise the issue on direct appeal or by previous collatera l attacks

. Berry v.
Commonwealth , 2008 WL 612457, * 3

- 4 (Ky. App. Mar. 7, 2008). The Court further held that Berry’s sentence was not illegal because life imprisonment is a penalty authorized by KRS 532.030. Id. at * 3.

On February 11, 2019 , Berry filed his fifth CR 60.02 motion , which is the subject of this appeal. Therein, Berry again attacked the legality of his sentence where he did not have a penalty phase at trial, as required by KRS 532.025 and 532.055, and argue d for the first time that he receiv ed ineffective assistance of trial and appellate counsel ( for waiving the penalty phase and failing to raise the error on appeal, respectively )

. The court denied the motion, and Berry timely appealed. Additional facts will be introduced as they become re levant.
STANDARD OF REVIEW
We review the denial of CR 60.02 motions for abuse of discretion. Young v. Richardson , 267 S.W.3d 690, 697

- 98 (Ky. App. 2008). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonab le, unfair, or unsupported by sound legal principles.” Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999).- 4

- ANALYSIS Berry argues the court abused its discretion in denying him relief
where his conviction wa s void or illegal and , further, that he was denied effective
assistance of counsel. 5 We need not address Berry’s arguments in depth because
his claim s are not properly before the Court.

“The structure provided in Kentucky for attacking the final judgment
of a trial court in a criminal case is not haphazard and overlapping, bu t is organized and complete. That structure is set out in t h e rules related to direct appeals, in
RC r [ 6 ] 11.42, and thereafter in CR 60.02.” Gross v. Commonwealth , 648 S.W.2d 853, 856 (Ky. 1983) (footnote added)

. Relevantly, CR 60.02(e)

- (f) provides that a
court may relieve a movant from a judgment if it is void , or for other reasons of an extraordinary nature . However, CR 60.02 is only for relief that is not available by direct appeal or under RCr 11.42

. Gross , 648 S.W. 2d at 856. Moreover , a defendant is precluded from raising claims which were, or reasonably could have been, raised in prior proceedings

. Id. at 857

.

5 We note that while Berry characterizes his sentence as illegal, his claim is that he was wrongfully denied an opportunity to present mitigating evidence , not th at his sentence was outside the penalties authorized by statute , which would be subject to correction at any time pursuant to Phon v. Commonwealth , 545 S.W.3d 284, 302 (Ky. 2018). Further, we reaffirm our prior holding that Berry’s sentence is not illegal as it was expressly authorized by KRS 532.030.

6 Kentucky Rules of Criminal Procedure.- 5

- Herein, Berry previously litigated his claim that the denial of a penalty phase rendered hi s sentence illegal in his 2006 CR 60.02 motion. Accordingly, this argument is barred as successive. As for Berry’s new contention that he was deprived effective assistance of counsel with regard to the lack of a penalty phase,
this claim is barred as wel l because , beyond a ny doubt , it could have been raised in
the 2006 motion. Accordingly, the court did not abuse its discretion in denying Berry relief. As a final matter, t he Commonwealth argues that Berry’s repeated,
meritless CR 60.02 motions necessitate instructing the circuit court to deny Berry
in forma pauperis status as to any further attempts to collaterally attack his
conviction. In support, t he Commonwealth cites to Cardwell v. Commonwealth , 354 S.W.3d 582, 585 (Ky. App. 2011), wherein a panel of this C ourt stated,
“where a pro se litigant files repetitious and frivolous claims, a court may bar prospective filings to prevent the deleterious effect of such filings on scarce judicial resources.” Berry did not respond by way of a reply br ief.

T he Commonwealth’s request is well taken. Similar to Cardwell , Berry has filed multiple meritless motions and has been previously advised , by way of the Court’s 200 1 and 2008 opinions , that it i s not permissible to relitigate
issues which were , or r easonably could have been , raised in prior proceedings. As- 6

-

such, we direct the circuit court to deny Berry any future request s t o proceed in forma pauperis on collateral attack s of this conviction.
CONCLUSION Therefore, and for the foregoing reasons, the o rder of the Jefferson Circuit Court denying Berry’s CR 60.02 motion is AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT: James Berry , pro se Burgin, Kentucky BRIEF FOR APPELLEE:
Daniel Cameron Frankfort, Kentucky Ken W. Riggs Frankfort, Kentucky