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NOT TO BE PUBLISHED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-001047 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

REVERSING AND REMANDING

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BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.

McNEILL, JUDGE: Juan Berry (Berry), pro se, appeals from the Jefferson Circuit 

Court’s order denying his CR1 60.02 motion for resentencing. We reverse and 

remand for resentencing. 

 

1 Kentucky Rules of Civil Procedure.
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I. BACKGROUND

On March 26, 2008, Berry was indicted on charges of: 1) sodomy in 

the first degree, a Class B felony2; 2) unlawful transaction with a minor in the first 

degree, a Class B felony3; 3) sexual abuse in the first degree, a Class D felony4; 

and 4) being a persistent felony 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 degree6; 2) sodomy in the third degree, a 

Class D felony7; 3) unlawful transaction with a minor in the second degree, a Class 

D felony8; and 4) the unamended charge of sexual abuse in the first degree, also a 

Class 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 agreement, 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.
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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 cap on sentencing 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 25, 2015. This 

Court affirmed the trial court. See Berry v. Commonwealth, No. 2015-CA-1897-

MR, 2017 WL 4712777 (Ky. App. Oct. 20, 2017).

On January 8, 2019, 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 denying his December 27, 2013 CR 60.02 motion. The trial 
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court denied Berry’s second CR 60.02 motion on October 25, 2019. This appeal 

followed.

II. STANDARD OF REVIEW

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. 1999). 

III. ANALYSIS 

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) any 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 offenses under KRS 532.080(6)(b) and KRS 

532.110(1) is twenty years. 
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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 waives a statutory cap in 

exchange for other considerations. This argument was rejected in this Court’s 

previous opinion: 

At the time Berry entered his guilty plea, the law in 

Kentucky was that “a defendant may validly waive the 

maximum aggregate sentence 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 4712777 at *2-3. We noted then that no published cases at the 

time addressed the retroactive application of McClanahan. Berry, 2017 WL 

4712777 at *2.
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Since this Court’s ruling on 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 being outside the statutory framework. In remanding 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 be 

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 “could 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. “Illegal 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.
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The Commonwealth also argues that because the sentence was

considered legal at the time it was imposed 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 

three Class D felonies 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 motion for resentencing. On remand, we direct the trial court to 

impose a sentence not to exceed the statutory maximum. 

III. CONCLUSION

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