RENDERED: APRIL 16, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Comm onwealth o f Kentucky Court of Appeals

NO. 2019

- CA

- 0962

- MR

STEPHEN SCHOMAKER APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD , JUDGE ACTION NO. 16

- CR

- 00083

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: JONES, MAZE, AND TAY LOR , JUDGES

. MAZE , JUDGE: The single issue in this appeal is whether the Campbell Circuit Court erred in denying appellant Stephen Schomaker ’s motion to amend a judgment proscribing contact with minors, including his biological children. The judgment was based upon appellant’s guilty plea to two counts of first

- degree rape, ten counts of promoting a sexual performance by a minor, and twelve counts of- 2

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sexual abuse in the first degree

. Because the circuit court did not clearly err in denying the relief soug ht, w e affirm.

The victim in this case is the half

- sister of appellant’s biological
children. U pon appellant’s guilty plea to the crimes charge d , the trial court entered judgment on July 20 , 2017 , sentencing him to twenty years’ imprisonment and prohibit ing appellant from contact with “ minor s without permission of his probation officer or treatment provider. . .

. ” A ppellant attempted to challenge the

no - contact provision regarding his biological children at sentencing, but upon being advised of a Campbe ll Family Court case dealing with the issue of contact with his biological children, the trial court declined to address the issue and informed appellant he could raise it at a later time.

On October 17, 2018, appellant filed a motion to amend the judgmen t to permit him to correspond with his children, to be permitted to have telephone calls with his children; and to have access to his children’s school and medical
information. After conducting a hearing on the motion, the trial court entered an
order den ying the motion. This appeal followed.

Prior to considering the merits of appellant’s contentions for reversal , we must address the timeliness of app ellant’s October 17, 2018 motion to amend the judgment. As the Commonwealth points out, the motion to am end the judgment was filed well beyond one year after the trial court lost jurisdiction to- 3

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modify its July 20, 2017 judgment. The Commonwealth further argues that relief is not available by treating his CR 1 59.05 motion as one for relief under CR 60.02. We agree.
In Commonwealth v. Gross , our Supreme Court disposed of a nearly similar question regarding the application of CR 60.02:

As stated in previous opinions of this Court , the purpose of CR 60.02 is to allow the trial court a method to correct error s in judgments upon a showing of “facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were discovered after rendition of judgment without fault of the party seeking relief. ” Harris v. Commonwealth , Ky ., 296 S.W.2d 700, 701 (1956); see also Gross v. Commonwealth , Ky., 648 S.W.2d 853, 856 (1983). The trial court order modifying this sentence indicated that in its original sentencing hearing the required pre

- sentence investigation report opined that Gros s was not eligible for probation as a result of his convictions. This opinion was not challenged at that sentencing hearing nor was it challenged on direct appeal in his first appeal to the Court of Appeals. It is only after the passage of two years that Gross advanced the argument to which the trial court agreed that his convictions were in fact eligible for probation. Whether Gross was eligible for probation or not is immaterial in this adjudication in that the issue did appear on the face of the recor d and was not challenged by Gross at the sentencing hearing. Therefore , the issue appears to be barred from any collateral attack whether by CR 60.02 or otherwise. 936 S.W.2d 85, 88

- 89 (Ky. 1996) (emphasis added )

.

1 Kentucky Rule s of Civil Procedure.- 4

- Unlike the situation in Gross , however, appellant here raised the issue of contact with his biological children at sentencing and the trial court declined to address it, advis ing him that he could revisit the issue at a later time. Thus, although appellant did not request CR 60.02, we will con sider its applicability to his motion. CR 60.02 provides that a court may relieve a party from its final judgment upon a satisfactory showing that one of the following grounds has been established : (a) mistake, inadvertence, surprise or excusable neglect;

(b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) th e 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 rea son of an extraordinary nature justifying relief. The rule also specifically provides that “[t]he motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken.”

Subsections (a), (b), and (c) are inapplicable because appellant’s motion to amend the judgme nt was lodged more than one year after entry of the- 5

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judgment. No facts were alleged in the motion which would implicate s ubsections (d) and (e) . Thus, appellant’s only possible avenue for relief comes via subsection (f) which requires a showing of “a rea son of an extraordinary nature justifying

re lief .” That avenue is foreclosed as well.

As the Supreme Court reiterated in Gross , CR 60.02 is designed to remedy errors only upon a showing of “facts or grounds, not appearing on the face
of the record and no t available by appeal or otherwise, which were discovered after rendition of judgment without fault of the party seeking relief.” 936 S.W.2d at 88 (citation omitted). Even had appellant properly sought relief under this rule, he
could not satisfy its sta ndard for obtaining relief because : 1) the facts and grounds underpinning his CR 59 motion do appear on the face of the record; 2) he did have available other avenues of relief, including a timely motion to withdraw his guilty plea or through an appeal; and 3) the grounds for his requested relief were known to him at the time of judgment and were in fact addressed at sentencing. In addition, this precise issue is being addressed in proceedings in the Campbell Family Court.

Finally, even if we were to co nclude that Schomaker’s motion should be treated as one under CR 60.02 to avoid the timeliness issue, we would nevertheless affirm the denial of relief by the trial court. After conducting a hearing, the trial court made findings on the record including : 1) that it had- 6

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declined to consider appellant’s contact motion at sentencing because his family had acted aggressively toward the victim’s mother during that proceeding ; 2) that despite his guilty plea, appellant has never accepted responsibility for his actions; 3) that because the victim still lives in the same h ome as appellant’s biological children, contact would further complicate an already difficult family dynamic; and 4) that a parent’s wish concerning contact is not always what is in the
children ’s best interest. In addition to these factors, we note that appellant does not
argue that he has complied with the sentencing requirement s that he complete the Department of Corrections Sex Offender Treatment Program or that he attempted to obtain the pe rmission of his probation officer or treatment provide r . Without evidence that he complied with those sentencing requirements, his request for contact with his biological children would appear to be premature.

Accordingly, we affirm the judgment of the C ampbell Circuit Court denying appellant’s motion for contact with his biological children.

ALL CONCUR.- 7

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BRIEF FOR APPELLANT: Harry P. Hellings, Jr. Covington, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky
E. Bedelle Lucas Assistant Attorney General Frankfort, Kentucky