RENDERED: APRIL 16, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of 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 TAYLOR, 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 
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sexual abuse in the first degree. Because the circuit court did not clearly err in 

denying the relief sought, we affirm.

The victim in this case is the half-sister of appellant’s biological 

children. Upon appellant’s guilty plea to the crimes charged, the trial court entered 

judgment on July 20, 2017, sentencing him to twenty years’ imprisonment and

prohibiting appellant from contact with “minors without permission of his 

probation officer or treatment provider. . . .” Appellant attempted to challenge the 

no-contact provision regarding his biological children at sentencing, but upon 

being advised of a Campbell 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 judgment 

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 denying the motion. This appeal followed.

Prior to considering the merits of appellant’s contentions for reversal, 

we must address the timeliness of appellant’s October 17, 2018 motion to amend 

the judgment. As the Commonwealth points out, the motion to amend the 

judgment was filed well beyond one year after the trial court lost jurisdiction to 
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modify its July 20, 2017 judgment. The Commonwealth further argues that relief 

is not available by treating his CR1 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 errors 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 Gross 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 record 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 Rules of Civil Procedure.
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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, advising him that he could revisit the issue at a later time. Thus, 

although appellant did not request CR 60.02, we will consider 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) 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. 

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 judgment was lodged more than one year after entry of the 
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judgment. No facts were alleged in the motion which would implicate subsections 

(d) and (e). Thus, appellant’s only possible avenue for relief comes via subsection 

(f) which requires a showing of “a reason of an extraordinary nature justifying 

relief.” 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 not 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 standard 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 conclude 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 
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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 home 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 requirements that he complete the 

Department of Corrections Sex Offender Treatment Program or that he attempted 

to obtain the permission of his probation officer or treatment provider. 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 Campbell Circuit Court 

denying appellant’s motion for contact with his biological children.

ALL CONCUR. 
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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