RENDERED: FEBRUARY 16, 2023

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0411-DG

COMMONWEALTH OF KENTUCKY APPELLANT 

V. 

ON REVIEW FROM COURT OF APPEALS

NO. 2019-CA-1549

TODD CIRCUIT COURT NO. 18-CR-00011 

THOMAS MOORE APPELLEE 

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

In accordance with his plea agreement, Appellee Thomas Moore was 

convicted of two class D felonies and of being a persistent felony offender in the 

second degree and sentenced to twenty years in prison. When Moore’s motion 

to vacate, challenging the plea agreement and his conviction and sentence, was

unsuccessful, Moore sought relief through the Court of Appeals. The Court of 

Appeals concluded that Moore’s sentence must be vacated because the circuit 

court committed palpable error. While the Court of Appeals’ treatment of 

Moore’s appeal as a direct appeal may be erroneous, the sentencing issue in 

this case supports the Court of Appeals’ decision that relief is warranted. 

However, we disagree with the Court of Appeals’ reversal of Moore’s probation 

revocation and we reverse that decision. Therefore, we affirm in part and 
2

reverse in part the Court of Appeals’ decision, and we remand this case to the 

Todd Circuit Court for further proceedings consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Following his indictment on various charges, Moore entered a guilty plea

to two class D felonies: (1) operating a motor vehicle under the influence of 

alcohol/drugs (DUI), fourth offense or greater within ten years, aggravating 

circumstances present;

1 and (2) operating a motor vehicle while license is 

suspended for driving under the influence and at the time of the offense,

operating the motor vehicle in violation of KRS 189A.010(1).

2,3 Moore also pled 

guilty to the amended charge of being a persistent felony offender in the second 

degree (PFO II).

4 Moore did not waive his right to appeal.

Moore memorialized his plea agreement with the Commonwealth on July 

18, 2018. A separate order which details the Commonwealth’s sentencing 

recommendation to the circuit court was contemporaneously entered into the 

record. For each class D felony, the Commonwealth recommended that Moore 

receive a prison sentence of three years enhanced to ten years due to being a 

PFO II and that these two ten-year sentences run consecutively. For the PFO II 

1 Kentucky Revised Statute (KRS) 189A.010(1) and (5)(d).

2 KRS 189A.090(1) and (2)(b).

3 Moore also pled guilty to the following charges for which he received a fine: 

careless driving, KRS189.290; no/expired registration plate, KRS 186.170; and failure 

of owner to maintain required insurance, first offense, KRS 304.39-080.

The possession of marijuana, KRS 218A.1422, and drug paraphernalia, KRS 

218A.500, charges were dismissed.

4 KRS 532.080(2).
3

charge, the Commonwealth noted “[twenty] years concurrent.” On the same 

day, the circuit court accepted Moore’s guilty plea and convicted Moore of the 

two class D felonies and of being a PFO II. As recommended by the 

Commonwealth, the circuit court fixed Moore’s punishment at twenty years in 

prison and probated the sentence for five years. Days later, on July 27, 2018, 

the Commonwealth’s Attorney filed a motion to revoke Moore’s probation.5 

Moore’s probation was revoked on August 15, 2018, and the circuit court 

entered its Final Judgment on Plea of Guilty and Sentence of Imprisonment 

(Final Judgment), imposing a twenty-year sentence. According to the Final

Judgment, for each class D felony, the circuit court imposed a three-year

prison sentence enhanced to ten years by the PFO II charge, and for the PFO II 

charge itself, the circuit court imposed twenty years. The Final Judgment 

states that all sentences run concurrently for a total of twenty years in prison.

6

After the circuit court denied Moore’s shock probation motion, Moore 

filed a pro se motion styled “Motion to Vacate Imposed Sentence and Request 

for New Trial Pursuant to RCr 10.26 and CR 61.02 Substantial Error Rules.”

7 

5 The grounds for the motion were that Moore failed to report to his Probation 

Officer as directed. Moore failed to appear for the August 1, 2018 revocation hearing. 

When Moore was arrested he tested positive for use of methamphetamine and 

benzodiazepines.

6 The amended Final Judgment entered September 20, 2018 did not change the 

sentence imposition.

7 Because Kentucky Rule of Criminal Procedure (RCr) 10.26 and Kentucky Rule 

of Civil Procedure (CR) 61.02 are identical and interpreted the same, Nami Resources 

Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018), the 

remainder of this Opinion cites the criminal rule, RCr 10.26, only when referencing 

Moore’s arguments.
4

Pertinently, Moore argued that it was palpable error and an abuse of discretion 

for the circuit court in its Final Judgment to list the PFO II conviction as an 

independent criminal offense, to sentence him to twenty years for that offense, 

and then to order that twenty-year sentence on the PFO II charge to be served 

concurrently to the two ten-year concurrent sentences. Moore requested the 

circuit court to vacate its judgment and sentence and to set his case for a new 

trial. The circuit court appointed counsel for Moore.

Over the course of several hearings, the circuit court discussed the 

merits of Moore’s motion with appointed counsel and the Commonwealth’s 

Attorney. Early on, appointed counsel expressed his belief that there was merit 

in Moore’s illegal sentence argument. At the March 6, 2019 hearing, appointed 

counsel presented Moore’s argument raised in his filed motion. At the final 

hearing on June 26, 2019, in addition to arguing that the twenty-year sentence 

imposed based upon the PFO II charge was illegal, because the two ten-year 

enhanced class D sentences could not run consecutively and that the Final 

Judgment did not state that the ten-year sentences run consecutively,

8

8 At the final hearing on June 26, 2019, the primary discussion in regard to 

Moore’s illegal sentence argument was whether Moore’s PFO II status could enhance 

both class D felonies and if so, whether the enhanced ten-year sentences could run 

consecutively. Without providing a citation to the circuit court, appointed counsel 

described a case provided by the Commonwealth supportive of the conclusion that a 

defendant with a PFO II status, being found guilty of two class D felonies, may have 

the enhanced ten-year sentences run consecutively. Appointed counsel, however, also 

advocated that because the Final Judgment did not state that the ten-year sentences 

were to run consecutively, the ten-year sentences run concurrently. Responding to 

the circuit court’s question, appointed counsel further stated that if both class D 

felonies could be enhanced by the PFO II status, twenty years is the maximum 

sentence Moore could receive, which would also be the maximum sentence if he pled 

guilty to the PFO I charge.
5

appointed counsel presented a probation sentencing argument on Moore’s 

behalf. The circuit court denied Moore’s motions and entered a final and 

appealable order.

Moore acted pro se before the Court of Appeals.

9 Rather than presenting 

his preserved illegal plea agreement and illegal sentence arguments, Moore 

presented both preserved and unpreserved arguments related to his probation

sentencing and its revocation.

The Commonwealth did not address Moore’s briefed arguments. Instead, 

the Commonwealth argued that Moore’s motion to vacate pursuant to RCr 

10.26 was procedurally improper because RCr 10.26’s standard of review may 

be utilized only on direct appeal and does not provide an avenue for a 

defendant to collaterally attack his convictions. The Commonwealth argued 

that because Moore failed to raise each of his issues in a prior proceeding, by 

way of an RCr 11.42 motion or a CR 60.02 motion, the failures amounted to a 

fatal procedural bar for consideration of his arguments and that the Todd 

Circuit Court should be affirmed.

The Court of Appeals first concluded that Moore was entitled to relief 

from the circuit court’s imposition of a twenty-year sentence because that 

sentence was solely and improperly based on Moore’s PFO II charge. The Court 

9 Although a defendant who enters an unconditional guilty plea typically waives 

his right to appeal, it was determined in the course of Moore’s appeal to the Court of 

Appeals that he did not waive that right. However, even if Moore had waived his right 

to appeal, this Court has recognized some exceptions to the general rule, one of which 

is the appealability of so-called sentencing issues, which applies to this case. Windsor 

v. Commonwealth, 250 S.W.3d 306 (Ky. 2008). 
6

of Appeals explained, citing Commonwealth v. Jones,

10 that Moore is entitled to 

relief under the RCr 10.26 palpable error standard. The Court of Appeals 

concluded the imposition of the twenty-year sentence was a plain error under 

existing law, particularly KRS 532.080; was more likely than ordinary error to 

have affected the judgment because without the invalid separate sentence for 

the PFO charge, Moore would have been sentenced to ten years in prison; and 

the error seriously affected the fairness of the proceedings and is 

“jurisprudentially intolerable.”

The Court of Appeals also considered Moore’s probation revocation 

arguments, finding merit particularly in an unpreserved argument. Finding 

that the circuit court did not make specific written findings as to the essential 

elements of KRS 439.3106 in its revocation order, and that it was unclear from 

the record whether the circuit court properly considered KRS 439.3106’s 

criteria when revoking Moore’s probation, the Court of Appeals reversed the 

circuit court’s probation revocation order and remanded the case for further 

revocation proceedings.

Lastly, in a conclusory manner, the Court of Appeals addressed the 

Commonwealth’s procedural argument. The Court of Appeals stated that 

contrary to the Commonwealth’s assertions, Moore’s appeal serves as a direct 

appeal and does not necessarily preclude a later, appropriate RCr 11.42 

collateral attack.

10 283 S.W.3d 665, 668 (Ky. 2009).
7

The Commonwealth moved this Court for discretionary review, which we 

granted. The Commonwealth complains that the Court of Appeals improperly 

determined that Moore could collaterally attack his final judgment by filing a 

motion under RCr 10.26 and that under this standard, the Court of Appeals 

determined that the circuit court committed palpable error when it sentenced 

Moore to twenty years in prison. Consistent with its motion for discretionary 

review, the Commonwealth’s arguments to this Court do not seek to reverse on 

the merits the Court of Appeals’ decision that the circuit court erred by 

sentencing Moore to twenty years in prison on the PFO II conviction. In 

addition to maintaining the RCr 10.26 procedural argument as a reason to 

reverse the Court of Appeals and affirm the circuit court, the Commonwealth 

advances other arguments, including (1) because Moore waived his sentencing 

claim by failing to brief it, the Court of Appeals improperly looked to RCr 10.26 

as a basis to reverse the circuit court’s denial of Moore’s motion to vacate and 

(2) the Court of Appeals improperly considered Moore’s KRS 439.3106 noncompliance argument because Moore did not raise it before the circuit court.

ANALYSIS

I. Even if the Court of Appeals erred by treating Moore’s appeal from 

the denial of his motion to vacate as a direct appeal, the Court of 

Appeals’ conclusion that the circuit court committed reversible 

error is not erroneous.

The Kentucky Constitution provides a convicted defendant a right to at 

least one appeal or review of the trial court proceedings leading to his 

conviction to determine whether the proceedings were carried out according to 
8

law.

11 This “direct appeal,”12 is generally based upon the trial court record

alone.

13 The review is designed for preserved issues, claimed errors brought to 

the trial court’s attention upon which the trial court had the opportunity to 

rule.14 However, as prescribed by RCr 10.26,15 an appellate court may review 

and grant relief from certain unpreserved issues. For these unpreserved 

issues, they “can only be reviewed as palpable error on appeal, which requires 

a finding of manifest injustice to prevail.”16 Nevertheless, even if a defendant is 

unsuccessful on the direct appeal of his conviction and sentence, other civil 

and criminal rules allow a criminal defendant to seek post-conviction relief

from judgment.

17 In particular, a criminal defendant may seek post-conviction 

relief through RCr 11.4218 and CR 60.02.19

11 Ky. Const. § 115.

12 See Howard v. Commonwealth, 364 S.W.2d 809, 810 (Ky. 1963).

13 Id.

14 See Fischer v. Fischer, 348 S.W.3d 582 (Ky. 2011).

15 RCr 10.26 states in full:

A palpable error which affects the substantial rights of a party may be 

considered by the court on motion for a new trial or by an appellate court on 

appeal, even though insufficiently raised or preserved for review, and 

appropriate relief may be granted upon a determination that manifest injustice 

has resulted from the error.

16 Fischer, 348 S.W.3d at 589.

17 See Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).

18 Pertinently, RCr 11.42(1) states: 

A prisoner in custody under sentence or a defendant on probation, parole 

or conditional discharge who claims a right to be released on the ground that 

the sentence is subject to collateral attack may at any time proceed directly by 

motion in the court that imposed the sentence to vacate, set aside or correct it.

19 CR 60.02 states in full:
9

The interplay of RCr 11.42 and CR 60.02 with the direct appeal process

is well-settled.

20 “The structure provided in Kentucky for attacking the final 

judgment of a trial court in a criminal case is not haphazard and overlapping, 

but is organized and complete. That structure is set out in the rules related to 

direct appeals, in RCr 11.42, and thereafter in CR 60.02.”21 “RCr 11.42 

provides a procedure for a motion to vacate, set aside or correct sentence for ‘a 

prisoner in custody under sentence or a defendant on probation, parole or 

conditional discharge.’ It provides a vehicle to attack an erroneous judgment 

for reasons which are not accessible by direct appeal.”22 CR 60.02 “is for relief 

that is not available by direct appeal and not available under RCr 11.42. The 

movant must demonstrate why he is entitled to this special, extraordinary 

relief.”23

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: (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 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. A motion under this rule does not affect the 

finality of a judgment or suspend its operation.

20 See e.g., Howard, 364 S.W.2d at 810 (discussing direct appeal and CR 

60.02); Gross, 648 S.W.2d at 856 (discussing direct appeal, CR 60.02 and RCr. 11.42).

21 Gross, 648 S.W.2d at 856.

22 Id.

23 Id. at 853.
10

The Commonwealth relies primarily upon Gross, Parrish v. 

Commonwealth,

24 McQueen v. Commonwealth,25 and more recently decided 

Commonwealth v. Dulin,

26 to support its argument that Moore’s use of RCr 

10.26 to collaterally attack his final conviction is procedurally barred. In Dulin, 

we concluded that KRS 533.040(2) operated to extend Dulin’s term of probation 

by tolling its expiration for at least six months beyond the original expiration 

date and consequently the circuit court was not divested of jurisdiction to 

revoke his probation.27 That conclusion disposed of the case, but we briefly 

discussed the procedural arguments advanced by the Commonwealth for 

reversing the Court of Appeals.

Pertinently, Dulin did not appeal the revocation order.28 Instead, two 

years after the revocation order was entered, relying upon CR 60.02 and RCr 

10.26, Dulin moved to vacate his sentence of imprisonment arguing that the 

circuit court lacked jurisdiction to revoke his probation.29 While recognizing 

that under certain circumstances CR 60.02 may afford relief to an incarcerated 

former probationer, we stated that RCr 10.26 “is not intended as an 

independent source under which an aggrieved party may bring a motion for 

relief challenging an alleged error in a proceeding in which there has been a 

24 272 S.W.3d 161, 176 (Ky. 2008).

25 948 S.W.2d 415, 416 (Ky. 1997).

26 427 S.W.3d 170, 178 (Ky. 2014).

27 Id. at 172.

28 Id. at 173.

29 Id.
11

final judgment entered.”30 The Commonwealth complains that the Court of 

Appeals’ disregarded Dulin’s guidance and determined that Moore could 

collaterally attack his final judgment under RCr 10.26.

While it appears that the procedural question raised by the 

Commonwealth is relatively straightforward, that the differences between a 

challenge to a conviction and sentence by direct appeal to an appellate court 

and a post-conviction challenge by motion to the trial court easily resolves that 

Moore’s appeal from his motion to vacate is not what is traditionally thought of 

as a direct appeal, and that Moore’s post-conviction motion which was not 

brought pursuant to RCr 11.42 or CR 60.02 was not properly before the circuit 

court, this case goes beyond the traditional analysis. Although not addressed 

by the parties, this case involves a sentencing issue, an issue which alters the 

procedural analysis.

Specifically, a “sentencing issue” is a claim that a sentencing decision is 

contrary to statute, such as when an imposed sentence is longer than allowed 

by statute for the crime, or a claim that the decision was made without fully 

considering the statutorily-allowed sentencing options.31 As we noted in Phon 

v. Commonwealth,

32 “this Court’s language in McClanahan [v. Commonwealth33]

implies that the mode of attack or time when the attack is brought are 

30 Id. at 178 (citing Gross, 648 S.W.2d at 856).

31 Grigsby v. Commonwealth, 302 S.W.3d 52, 54 (Ky. 2010) (citations omitted).

32 545 S.W.3d 284, 307 (Ky. 2018).

33 308 S.W.3d 694 (Ky. 2010).
12

immaterial when the issue is an illegal sentence. ‘[S]entences falling outside 

the permissible sentencing range cannot stand uncorrected.’”34

“Our review of unpreserved ‘sentencing issues’ is based on protection of 

the defendant from being subjected to an illegal sentence, ‘since all defendants 

have the right to be sentenced after due consideration of all applicable law.’”35 

The appellate court will automatically treat an unpreserved sentencing issue as 

though it was preserved for appellate review.36 Furthermore, because the trial 

court and appellate court have inherent authority to correct an unlawful 

sentence at any time,37 a defendant may raise a sentencing issue through any 

of the following relief mechanisms: direct appeal, with the standard of review 

being abuse of discretion even when the sentencing issue is not preserved;38

RCr 11. 42; CR 60.02; or a writ of habeas corpus.39

Despite the Court of Appeals’ likely good intention of construing Moore’s 

motion and appeal in a manner which would not keep him from seeking RCr 

11.42 relief, because of the manner in which we think of a direct appeal – an 

appeal directly from the final judgment and not an appeal from a post34 545 S.W.3d at 307 (quoting McClanahan, 308 S.W.3d at 700) (emphasis 

added in Phon).

35 Martin v. Commonwealth, 576 S.W.3d 120, 122 (Ky. 2019) (quoting Hughes v. 

Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994)).

36 Webster v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014).

37 See, e.g., Phon v. Commonwealth, 545 S.W.3d 284, 308 (Ky. 2018), and Jones 

v. Commonwealth, 382 S.W.3d 22, 27 (Ky. 2011).

38 Jones, 382 S.W.3d at 27-28; McClanahan, 308 S.W.3d at 698.

39 Myers v. Commonwealth, 42 S.W.3d 594, 596 (Ky. 2001), overruled on other 

grounds by McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010).
13

conviction motion attacking a final judgment through RCr 11.42 or CR 60.02, 

we do not view Moore’s appeal as a direct appeal. Nevertheless, even if the 

Court of Appeals’ treatment of Moore’s appeal was erroneous, the 

Commonwealth’s procedural argument is not a basis to reverse the Court of 

Appeals’ decision that Moore’s sentence must be vacated and to affirm the 

circuit court. While Moore describes his case as an anomaly and likely it is so, 

“[i]n Kentucky, a court speaks through the language of its orders and 

judgments”

40 and given the involvement of a sentencing issue, like the Court in 

Howard v. Ingram,

41 we decline to engage in “useless ‘circuity of motion,’”42,43

requiring Moore to file an additional post-conviction motion seeking relief when

this procedural issue was not raised before the circuit court and the 

Commonwealth does not dispute the fact that the twenty-year sentence based 

on the PFO II charge is erroneous. Whether the circuit court’s denial of 

Moore’s motion to vacate his sentence is reviewed under an abuse of discretion 

40 Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644, 

648 (Ky. 2007).

41 452 S.W.2d 410 (Ky. 1970).

42 Id. at 411.

43 In Ingram, although the defendant’s original judgment of conviction fixed his 

sentence at one year in prison, upon his probation revocation, the trial court 

sentenced him to two years. Id. After the defendant served more than thirteen 

months, his petition for habeas corpus was sustained, and the defendant was released 

from prison. Id. The state reformatory superintendent appealed, arguing that the 

defendant should have brought an RCr 11.42 motion to vacate. Id. While the 

appellate court agreed with the superintendent, it noted that it would be useless 

‘circuity of motion’ to reverse the judgment, since it could only result in the necessity 

of reincarcerating the defendant, thereby reestablishing his eligibility to proceed under 

RCr 11.42. Id. at 411-12.
14

standard44 or as considered by the Court of Appeals here, the palpable error 

standard, Moore is entitled to relief.

The Commonwealth also argues that the Court of Appeals erred by 

considering Moore’s illegal sentence claim under RCr 10.26 because it was not 

briefed by Moore. “Implicit in the concept of palpable error correction is that 

the error is so obvious that the trial court was remiss in failing to act upon it 

sua sponte.”

45 Nevertheless, pertinent to the Commonwealth’s argument, this 

Court has stated that “[a]bsent extreme circumstances amounting to a 

substantial miscarriage of justice, an appellate court will not engage in 

palpable error review pursuant to RCr 10.26 unless such a request is made and 

briefed by the appellant.”46

An erroneous sentence is injurious to a defendant’s substantial rights.

47

By applying the preceding standard, under which we conclude Moore’s case fits 

easily within the exception, we simply may recognize that appellate briefing is 

not required for a defendant to be granted relief from an illegal sentence. 

In sum, we cannot view the circumstances of this case as not warranting 

relief.48 Accordingly, we remand this case to the circuit court for Moore’s 

resentencing. The illegal twenty-year sentence for the PFO II charge is vacated. 

44 McClanahan, 308 S.W.3d at 698.

45 Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017).

46 Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).

47 Peyton v. Commonwealth, 253 S.W.3d 504, 512 (Ky. 2008).

48 The Court of Appeals did not address Moore’s defective plea agreement claim. 

Moore does not raise that issue before this Court.
15

However, it is unclear from the record on appeal what sentence was imposed 

upon Moore for the two class D felonies.

49 In consideration of precedent 

respecting final judgments, see e.g., Machniak v. Commonwealth, 351 S.W.3d 

648 (Ky. 2011), the circuit court is directed to resentence Moore on the two 

class D felonies, pursuant to KRS 532.110 and KRS 532.080.

II. The Court of Appeals erred by reversing the circuit court’s probation 

revocation order.

Finally, the Commonwealth claims that the Court of Appeals erred by 

improperly using RCr 10.26 to review the probation-revocation order because 

Moore did not raise this claim before the circuit court.

As noted previously, Moore’s appellate brief to the Court of Appeals 

addressed preserved and unpreserved probation sentencing and probation 

revocation arguments. The probation issue which the Court of Appeals relied 

upon to reverse the circuit court’s revocation order – failure to comply with 

KRS 439.3106 – was not an issue presented to the circuit court. Moore argued 

before the Court of Appeals that the circuit court failed to make the mandatory 

findings pursuant to KRS 439.3106(1) because the circuit court did not include 

any findings on its calendar order other than the conclusive statements related 

to the statutory criteria. Despite the issue being unpreserved and at most, 

subject to palpable error review, the Court of Appeals concluded that the 

circuit court abused its discretion by revoking Moore’s probation without 

49 Moore certified for appeal the motion to vacate hearings only and the 

Commonwealth did not supplement the record to clarify Moore’s proper sentence on 

the two class D felonies.
16

making written findings in its orders about the statutory criteria under KRS 

439.3106(1)(a), i.e., whether Moore posed a significant risk to prior victims or 

the community at large and whether Moore could be appropriately managed in 

the community. 

There are two documents in the record related to Moore’s probation 

revocation: the revocation hearing docket sheet/calendar order and the 

subsequent order revoking Moore’s probation. The circuit court wrote its 

findings of fact and conclusion of law, including its conclusion that Moore was 

not capable of supervision and was a danger to the community, on the docket 

sheet. The order revoking Moore’s probation references the revocation hearing 

proof generally and identifies that Moore violated the terms of his probation by 

failing to report to Probation and Parole as ordered and by using 

methamphetamine and benzodiazepines.

Under RCr 10.26, if an unpreserved error is found to be palpable and if it 

affects the substantial rights of the defendant, the appellate court may grant 

appropriate relief if manifest injustice has resulted from the error. An error is 

palpable when it is “easily perceptible, plain, obvious and readily noticeable.”50 

The error must be “so manifest, fundamental and unambiguous that it 

threatens the integrity of the judicial process.”51 Upon review of the record, we 

find no palpable error in regard to the circuit court’s compliance with KRS 

50 Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).

51 Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
17

439.3106(1). We agree with the Commonwealth that the Court of Appeals 

erred by reversing Moore’s probation revocation.52

CONCLUSION

For the foregoing reasons, the Court of Appeals’ decision is affirmed in 

part and reversed in part. This case is remanded to the Todd Circuit Court for 

proceedings consistent with this Opinion.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

Bryan Morrow

Assistant Attorneys General

COUNSEL FOR APPELLEE:

Jennifer Wade

Assistant Public Advocate

52 As noted above, Moore raised other probation related arguments, but those 

issues were not addressed by the Court of Appeals: (1) the circuit court abused its 

discretion by placing Moore on probation before he served the 240 days in jail 

mandated by KRS 189A.010(5)(d), or (2) the circuit court committed palpable error by 

failing to consider lesser sanctions than revocation under KRS 439.3107. Moore does 

not raise those issues before this Court.