RENDERED: JUNE 18, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2020

- CA

- 0046

- MR

JUAN BERRY APPELLANT

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 08

- CR

- 0 01047

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

**   **  **
BEFORE: GOODWINE, MAZE, AND M c NEILL , JUDGES.
M c NEILL, JUDGE: Juan Berry (B erry ), pro se , appeals from the Jefferson Circuit Court’s order denying his CR 1 60.02 motion for resentencing

. We reverse and
remand for resentencing.

1 Kentucky Rules of Civil Procedure.- 2

- I. B ACKGROUND On March 26, 2008, Berry was indicted on charges of: 1) sodomy in the first degree, a Class B felony 2 ; 2) unlawful transaction with a minor in the first degree, a Class B felony 3 ; 3) sexual abuse in the first degree, a Class D felony 4 ; and 4) being a persistent felon y offender in the first degree. 5

Berry entered into a plea agreement with the Commonwealth. On June 11, 2008, the trial court entered a judgment and sentence consistent with that plea agreement. Berry was sentenced under amended charges of: 1) being a persistent felony offender in the second degree 6 ; 2) sodomy in the third degree, a
C lass D felony 7 ; 3) unlawful transaction with a minor in the second degree, a C lass D felony 8 ; and 4) the unamended charge of sexual abuse in the first degree, also a
C lass D felony. Berry was sentenced to five years on each count for the sodomy,
unlawful transaction with a minor , and sexual abuse charges. Each sentence was enhanced to ten years by the persistent felony offender conviction. Pursuant to the plea agreem ent, the three ten

- year sentences were to run consecutively.

2 Kentucky Revised Statutes (KRS) 510.070(1)(a)

. 3 KRS 530.064

. 4 KRS 510.110(1)(a)

. 5 KRS 532.080

. 6 KRS 532.080

. 7 KRS 510.090

. 8 KRS 530.065

.- 3

- In its judgment, the trial court noted, “The Commonwealth
recommends that these 10

- year sentences run consecutively for a total of 30 years to serve. [Berry] agrees to waive the statutory c ap on sentenc ing in exchange for more favorable parole eligibility resulting from this offer.” Later, the trial court entered an amended judgment, further clarifying the agreement regarding parole eligibility: Specifically, all parties have contemplated and agree that

this plea shall make [Berry] eligible for parole after serving twenty percent (20%) of this sentence and [Berry] is NOT to be classified as a violent offender for the purposes of determining his parole eligibility. On December 27, 2013, Berry moved the trial court for resentencing
under CR 60.02

. He maintained that pursuant to KRS 532.080(6)(b) and KRS 532.110(1) , the maximum total sentence for three multiple class D felony offenses was twenty years. The trial court denied the motion on November 2 5 , 2015. This
Court af firmed the trial court. See Berry v. Commonwealth , No. 2015

- CA

- 1897

- MR, 2017 WL 471277 7 (Ky. App. Oct. 20, 2017).

On January 8 , 201 9 , Berry filed a second motion pursuant to CR
60.02 , making substantially the same argument as his previous CR 60.02 motion

. In further support, however, Berry cited the Kentucky Supreme Court’s decision in
Phon v. Commonwealth , 545 S.W.3d 284 (Ky. 2018) , which was decided after the appeal of the order de nying his December 27 , 2013 CR 60.02 motion . The trial- 4

-

court denied Berry’s second CR 60.02 motion on October 25, 2019 . This appeal
followed.
II. S TANDARD OF R EVIEW

We review the trial court’s denial of a motion pursuant to CR 60.02
under an abuse of discretion standard. White v. Commonwealth , 32 S.W.3d 83, 86 (Ky. App. 2000). An abuse of discretion occurs when a “trial judge’s decision was arbitrary, unreasonable, unfair , or unsupported by sound legal principles

. ” Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 19 99 ).
III. A NALYSIS The relevant portion of CR 60.02 provides: 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:

. . . (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) a ny other reason of an extraordinary nature justifying relief. Berry argues that his sentence was illegal and therefore void under CR 60.02(e). He maintains, as he did in his previous appeal, that the maximum aggregate sentence for three Class D offense s under KRS 532.080(6)(b) and KRS 532.110(1) is twenty years.- 5

- Berry cites McClanahan v. Commonwealth , 308 S.W.3d 694, 701 (Ky. 2010) , for the proposition that the statutory maximums prevent a plea agreement such as his, where a defendant voluntarily waive s a statutory cap in exchange for other consideration s
. This argument was rejected in this Court’s previous opinion :

At the time Be rr y entered his guilty plea, the law in Kentucky was that “a defendant may validly waive the maximum aggregate sente nce limitation in KRS 532.110 (1)(c) that otherwise would operate to his benefit.” Myers v. Commonwealth , 42 S.W.3d 594, 597 (Ky. 2001), overruled by McClanahan v. Commonwealth , 308 S.W. 3d 694 (Ky. 2010).

. . . In the current case, Berry’s plea and sentence were lawful at the time it was entered, and the decision in McClanahan was rendered a few years after Berry’s sentence became final. Berry entered his plea voluntarily with full knowledge that the sentence exceeded the statutory sentencing terms with the express purpose of obtaining more favorable treatment for parole considerations. . . . Consequently, Berry has failed to show that there are strong equities requiring departure from the proscription against retroactive treatment of new decisions changing prior law or that failure to resentence him would constitute a flagrant miscarriage of justice. Berry , 2017 WL 471277 7 at * 2

- 3

. We noted then that no published cases at the
time addressed the retroactive application of McClanahan

. Berry , 2017 WL
471277 7 at * 2

.- 6

- Since this Court’s ruling o n Berry’s previous appeal, however, the Kentucky Supreme Court has rendered its opinion in Phon

. In Phon , the defendant appealed the denial of a CR 60.02 motion challenging the legality of his sentence
as bei ng outside the statutory framework. In re manding the case to the trial court with instructions to impose a legal sentence , the Court stated, “ We hold today that a sentence imposed beyond the limitations of the legislature as statutorily imposed
is unlawful and void.” Phon , 545 S.W.3d at 304. “It is because these sentences are void and unlawful that CR 60.02 provides the proper remedy for relief .” Id

. Further, “[i]t is logical that such illegal sentences are considered void and correctable at any time, as contrasted to an attack on the underlying conviction. If the sentence goes beyond the jurisdiction of the court imposing it, then it must b e considered a legal nullity.” Id . at 305.

While the Commonwealth argues, pursuant to Gross v.
Commonwealth , 648 S.W.2d 853 , 857 (Ky. 1983 ), that Berry cannot raise an issue
in a CR 60.02 motion which “ co uld reasonably have been presented” in a motion
under RCr. 11.42, the Kentucky Supreme Court also ruled in Phon that the necessity of correcting an illegal sentence overcomes any possible procedural bar

to a CR 60.02 motion. 545 S.W.3d 284. “Il legal sentences must always be
correctable. To hold otherwise would fly in the face of the separation of powers doctrine and grant the judiciary powers it was never intended to hold.” Id. at 307.- 7

- T he Commonwealth also argues that because the sentence was
considered legal at the time it was impose d under Myers and prior to the ruling in
McClanahan , it should be upheld

. However, the Kentucky Supreme Court
considered the identical argument in Phon . It held that a change in the interpretation of a statute which renders a previous sentence illegal applies retroactively, whereas a change to a statute itself does not. Phon , 545 S.W.3d at
301. Berry’s sentence is void because the thirty years’ imprisonment for
th ree Class D f

elonies exceeds the statutory maximum of twenty years pursuant to KRS 532.080(6)(b) and KRS 532.110(1). Based upon the guidance of Phon , we are compelled to conclude that the trial court abused its discretion when it denied Berry’s CR 60.02 m otion for resentencing. On remand, we direct the trial court to impose a sentence not to exceed the statutory maximum.
III. C ONCLUSION For the reasons set forth above, we reverse the Jefferson Circuit Court’s order denying Berry’s CR 60.02 motion and remand to the trial court with directions to impose a sentence of imprisonment in conformance with the Kentucky Revised Statutes

.

ALL CONCUR

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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Juan Berry, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky
E. Bedelle Lucas Assistant Attorney General Frankfort, Kentucky