RENDERED: NOVEMBER 12, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0981-MR

JARAD MCCARGO APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 14-CR-01125

COMMONWEALTH OF KENTUCKY APPELLEE 

AND

NO. 2020-CA-1117-MR

JARAD MCCARGO APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 14-CR-01125

COMMONWEALTH OF KENTUCKY APPELLEE 
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OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

DIXON, JUDGE: Jarad McCargo was convicted by a jury of assault in the first

degree, leaving the scene of an accident (a misdemeanor), criminal mischief in the 

first degree, two counts of assault in the fourth degree, operating a motor vehicle 

while under the influence, and failure to maintain required insurance. He was 

sentenced to ten years’ imprisonment.

McCargo appealed to this Court, and his convictions were affirmed in 

a published opinion rendered on September 8, 2017. From that opinion, we 

borrow a recitation of the facts of the underlying crimes:

McCargo and his wife, Denise, went out for drinks one 

evening in Lexington. Denise, who drove her Ford 

Explorer SUV, described herself as the “designated 

driver.” According to McCargo, he had a mixed 

cranberry and vodka drink before they left home. The 

couple went first to the Euclid Avenue area of Lexington, 

at around 9:00 p.m. There were only a few people there 

at that time, and a bouncer at the Art Bar, a nightclub, 

recommended that they return in an hour. The couple 

went to another bar at the intersection of Newtown Pike 

and Georgetown Road. Because Denise had difficulty 

parallel parking the SUV, McCargo parked it for her.

The couple ordered margaritas at the bar where they 

stayed for about forty minutes before driving back to 

Euclid Avenue. 
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When they arrived, they looked for street parking near 

the Art Bar and spotted a parking space in front of 

another nearby bar, The Beer Trappe. Noel Espino, a 

captain in the Army National Guard, was standing 

outside the Beer Trappe, speaking with his wife on his 

mobile phone. McCargo switched seats with Denise in 

order to parallel park her vehicle. He tried to back into 

the parking space, but the SUV was at the wrong angle. 

He pulled out and backed in again at a sharper angle, 

then hit the gas pedal rather than the brake. The SUV 

accelerated in reverse and crushed Espino against the 

Beer Trappe building. Espino’s pelvis was crushed, his 

femurs were broken and his internal organs were 

damaged. He had to undergo dialysis because his 

kidneys had ceased to function. Ultimately, Espino’s leg 

and part of his pelvis had to be amputated. Peter Alvarez 

and Dutch Inman, two of Espino’s friends who were 

inside the bar, received minor injuries. The Beer Trappe 

sustained damages in the amount of $26,330 in repairs. 

Immediately following the accident, McCargo panicked 

and drove away. Denise urged him to return, but he kept 

going. After he turned right off Euclid Avenue, she 

grabbed the gearshift and stopped the SUV. She jumped 

out and ran back to the accident scene, and told police 

what had happened. McCargo meanwhile drove home. 

When the police arrived there to look for him, they found 

him hiding behind some garbage cans. McCargo claimed 

that he was unaware that he had even struck the building. 

A few hours after the crash, the police obtained a sample 

of McCargo’s blood, which showed a blood-alcohol level 

of .122%.

McCargo v. Commonwealth, 551 S.W.3d 439, 440-41 (Ky. App. 2017).
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McCargo sought discretionary review from the Kentucky Supreme 

Court, which was denied in 2018.

1

In 2021, McCargo sought relief from his sentence due to the outbreak 

of the novel coronavirus (COVID-19), filing a pro se motion “pursuant to 

[Kentucky Rules of Civil Procedure] (CR) 60.02, 60.03 and the Eighth and 

Fourteenth Amendments to the United States Constitution” in the Fayette Circuit 

Court, which was summarily denied. He subsequently, by and through counsel, 

filed a motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr)

11.42 alleging ineffective assistance of both trial and appellate counsel, which was 

also denied by the Fayette Circuit Court. He has appealed both orders, and the 

cases have been consolidated.

STANDARD OF REVIEW

We employ a de novo standard of review concerning the trial court’s 

determination of whether it had jurisdiction to consider either of McCargo’s 

motions for relief from his sentence because jurisdiction is a matter of the 

application of law. 

Because the issue of whether the trial court had 

jurisdiction to grant Settles’ motion for shock probation 

is a question of law, we review it de novo. See Hidalgo 

v. Commonwealth, 290 S.W.3d 56, 58 (Ky. 2009) (“De

novo review is generally the proper standard where the 

lower court is alleged to be acting outside its jurisdiction, 

 

1

 Jarad McCargo v. Commonwealth, No. 2018-SC-0082-D.
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because jurisdiction is generally only a question of 

law[]”); Brown v. Commonwealth, 326 S.W.3d 469, 471 

(Ky. App. 2010) (“Whether the trial court acted outside 

its jurisdiction in amending the judgment of conviction 

and sentence is a question of law, which we review de

novo[]”).

Commonwealth v. Settles, 488 S.W.3d 626, 629 (Ky. App. 2016).

ANALYSIS

Denial of reduction of sentence due to pandemic

McCargo first argues that the trial court erred by denying his CR 

60.02 and CR 60.03 motion to amend his final judgment to reduce his sentence 

because the coronavirus pandemic converted his sentence into cruel and unusual 

punishment. 

CR 60.02 provides a trial court with the power to grant relief for 

errors related to the matter which were not previously presented to the trial court. 

McCargo argues that it is CR 60.02(f)2 which entitles him to relief, but his request 

for relief due to the pandemic and his particular susceptibility to its ravages is not 

related to his conviction and cannot vest jurisdiction to amend his sentence. 

In Wine v. Commonwealth, the appellant sought a reduction in his 

sentence because his teenaged son had been adversely affected by his father’s 

 

2

“[A]ny other reason of an extraordinary nature justifying relief.”
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incarceration. This Court, while sympathetic, held that CR 60.02 simply does not 

provide for consideration of such reasons:

The Court in Gross v. Commonwealth, Ky., 648 

S.W.2d 853, 856 (1983), stated:

CR 60.02 was enacted as a substitute for the 

common law writ of coram nobis. The purpose of 

such a writ was to bring before the court that 

pronounced judgment errors in matter of fact 

which (1) had not been put into issue or passed on, 

(2) were unknown and could not have been known 

to the party by the exercise of reasonable diligence 

and in time to have been otherwise presented to the 

court, or (3) which the party was prevented from 

so presenting by duress, fear or other sufficient 

cause.

In Harris v. Commonwealth, Ky., 296 S.W.2d 700 

(1956), the Court held that CR 60.02 does not extend the 

scope of the remedy afforded through coram nobis nor 

provides any additional grounds for relief. Thus, the 

grounds for relief on a motion pursuant to CR 60.02 are 

essentially those stated in Gross, supra.

The appellant asserts that the family hardships were 

unknown to him at the time of his guilty pleas and were 

not an issue at his sentencing. The appellant admits that 

whether such hardship amounts to a reason of an 

extraordinary nature has not been decided in Kentucky, 

but urges that we adopt that position. We refuse to do so.

In general, the reasons behind CR 60.02 listed in Gross,

supra, and in the rule itself have to do with some 

significant defect in the trial proceedings or evidence at 

trial, etc., such that “a substantial miscarriage of justice 

will result from the effect of the final judgment.” Wilson 

v. Commonwealth, Ky., 403 S.W.2d 710, 712 (1966). 

The hardships cited by the appellant have no relation to 
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the trial proceedings or any additional undiscovered 

evidence not presented at trial but only concern the 

adverse effect the appellant’s incarceration is having on 

his family. In all likelihood, the family of every 

defendant sentenced to a prison term suffers some degree 

of adversity from the defendant’s incarceration. 

Although the hardships on the appellant’s family may be 

greater than the average, we simply fail to see how 

family hardships of any severity are so extraordinary that 

a “substantial miscarriage of justice” will result and relief 

under CR 60.02(f) would be justified.

Further, if changes in family or other conditions were 

viewed as proper grounds for relief under CR 60.02(f), 

great uncertainty would arise surrounding the finality of 

judgments.

Wine v. Commonwealth, 699 S.W.2d 752, 753-54 (Ky. App. 1985). For the same 

reasons, we find that CR 60.02 simply is not available to McCargo because of a 

worldwide pandemic, which is unrelated to his conviction and sentence. 

McCargo likewise invokes CR 60.03, but such presupposes an 

independent action, not alternative grounds. Simply put, a CR 60.03 motion which 

is accompanied by a motion pursuant to other grounds, such as CR 60.02, is 

incongruous. CR 60.03 motions are independent actions, not accompanied by any 

other grounds, because any other grounds do not exist. CR 60.03 clearly prohibits 

relief when one has been denied CR 60.02 relief, and as both the trial court and this 

Court have denied McCargo CR 60.02 relief, albeit for disparate reckonings, he is 

not entitled to relief pursuant to CR 60.03: 
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Rule 60.02 shall not limit the power of any court to 

entertain an independent action to relieve a person from a 

judgment, order or proceeding on appropriate equitable 

grounds. Relief shall not be granted in an independent 

action if the ground of relief sought has been denied in a 

proceeding by motion under Rule 60.02, or would be 

barred because not brought in time under the provisions 

of that rule.

CR 60.03.

McCargo also purports to be requesting relief from his sentence 

pursuant to the Eighth and Fourteenth Amendments. However, the amendments 

themselves, of course, provide no procedural mechanism nor act to grant 

jurisdiction for the trial court to grant the requested relief. 

Purported RCr 11.42 motion

Next, McCargo contends he was entitled to relief for ineffective 

assistance of both trial and appellate counsel under RCr 11.42. The trial court 

herein rendered a lengthy and well-reasoned opinion denying McCargo’s RCr 

11.42 motion. However, we need not address the merits of McCargo’s motion as 

he failed to comply with the mandates of the rule which state:

(2) The motion shall be signed and verified by the 

movant and shall state specifically the grounds on which 

the sentence is being challenged and the facts on which 

the movant relies in support of such grounds. Failure to 

comply with this section shall warrant a summary 

dismissal of the motion.
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RCr 11.42(2) (emphasis added). McCargo’s RCr 11.42 motion did not comply 

with this rule because he failed to sign or verify his motion.

It is true that our Supreme Court softened the severity of subsection 

(2) in Cleaver v. Commonwealth, 569 S.W.2d 166, 169 (Ky. 1978), holding:

[t]he procedure for obtaining relief pursuant to the 

provisions of RCr 11.42 must be complied with. The 

motion for relief must be in writing, verified by the 

movant, and state specifically the grounds of challenge 

and the facts in support thereof. . . . It is jurisdictional 

that the terms and provisions of RCr 11.42 must be 

complied with, even though a substantial, and not an 

absolute, compliance is adequate.

Nevertheless, herein, McCargo not only failed to verify his motion but also failed 

to sign it. As such, there is no evidence in the record to support a finding that 

McCargo even alleges error conferring jurisdiction. Consequently, the failure of 

McCargo to sign or verify his RCr 11.42 motion mandates dismissal.

CONCLUSION

For the foregoing reasons, both orders of the Fayette Circuit Court

denying McCargo’s post-conviction motions are AFFIRMED.

THOMPSON, L., JUDGE, CONCURS.

CALDWELL, JUDGE, DISSENTS IN PART AND FILES 

SEPARATE OPINION.

CALDWELL, JUDGE, DISSENTING IN PART: While I concur 

with the majority in the analysis and conclusion concerning McCargo’s CR 60.02 
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motion seeking relief from his sentence due to the outbreak of the novel 

coronavirus and his perceived particular susceptibility to its ravages, I must dissent 

from the portion of the Opinion concerning the RCr 11.42 motion for ineffective 

assistance of both trial and appellate counsel. While I do not disagree with the 

ultimate outcome of the majority in denying McCargo relief, I find that the trial 

court did not enjoy jurisdiction to even consider the motion for a failure of 

substantial compliance with the rule.

RCr 11.42 requires verification of the allegations made therein: 

(2) The motion shall be signed and verified by the 

movant and shall state specifically the grounds on which 

the sentence is being challenged and the facts on which 

the movant relies in support of such grounds. Failure to 

comply with this section shall warrant a summary 

dismissal of the motion.

The meaning of the last sentence, requiring summary dismissal for 

failure to comply with the requirements of the section, has been interpreted by the 

majority to require dismissal, and that as long as the conclusion of the 

consideration of a non-complying motion is a denial of relief, such dismissal has 

occurred. I disagree. I find that a “summary dismissal” requires no analysis and 

should occur because the failure to comply with the dictates of the section ends in a 

failure to grant jurisdiction to the trial court to even consider the motion.
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Whether substantial compliance with the requirements of RCr 11.42 

has been met, particularly as verification is considered, the following cases distill 

the question to whether the movant was represented, in fair measure.

In Cleaver v. Commonwealth, 569 S.W.2d 166 (Ky. 1978), cited in 

the Opinion, the motion was never reduced to writing, so it could not be verified.

The procedure for obtaining relief pursuant to the 

provisions of RCr 11.42 must be complied with. The 

motion for relief must be in writing, verified by the 

movant, and state specifically the grounds of challenge

and the facts in support thereof. In the instant case, there 

being no written motion, there could be no compliance 

with the provisions of RCr 11.42, not even a substantial 

compliance. It is jurisdictional that the terms and 

provisions of RCr 11.42 must be complied with, even 

though a substantial, and not an absolute, compliance is 

adequate. Therefore, even had RCr 11.42 been an 

appropriate remedy in this instance, in the absence of an 

appropriate motion as required by RCr 11.42, the 

Johnson Circuit Court would not have had the authority 

to enter an order granting the appellant any relief.

Id. at 169 (emphasis added).

The Kentucky Supreme Court was clear that compliance with the 

requirements of being reduced to writing and verified are jurisdictional 

considerations. Here, McCargo’s motion was filed in the trial court by counsel. 

This is remarkable for two reasons. First, substantial compliance is really more of 

a matter of grace for those proceeding pro se. When counsel is involved, members 

of the bar are required to comply with the rules. See Haines v. Kerner, 404 U.S. 
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519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972) (“We cannot say with 

assurance that under the allegations of the pro se complaint, which we hold to less 

stringent standards than formal pleadings drafted by lawyers[.]”). Second, when a 

pro se litigant files a motion pursuant to RCr 11.42, they sign as the filer, even if 

they fail to sign verifying the contents. Such would be “substantial compliance.” 

Here, however, counsel failed to follow the rule and have the motion 

verified by his client, and McCargo, not having filed pro se, did not sign the 

pleading so as to substantially comply. By the very nature of the allegations of an 

RCr 11.42 motion, the movant is alleging facts not in the record, “my attorney told 

me X,” “the witness lied,” etc. The allegations are, by and large, not supported by 

the record and, therefore, must be “verified” by the movant per the rule. When a 

pro se movant fails to specifically “verify” the motion, but signs it as the movant, 

and is the author of the allegations contained therein, there is reason to grant 

substantial compliance. However, where, as here, the motion is authored by and 

filed by counsel, with no signature appearing anywhere by the movant, such 

simply cannot be countenanced as substantial compliance.

In Hurt v. Commonwealth, rendered last year, a panel of this Court 

specifically held that failure to verify was fatal to granting jurisdiction to the trial 

court. In Hurt, the pro se movant failed to file a motion and did not sign the 

memorandum he did file. The Court held that fatal.
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A trial court loses jurisdiction ten (10) days after the 

entry of a judgment or order. Bowling v. Commonwealth, 

964 S.W.2d 803, 804 (Ky. 1998). If Hurt had followed 

the dictates of RCr 11.42 and filed a verified pleading, 

jurisdiction could have been reinvested in the Perry 

Circuit Court. However, he failed to do so. No motion 

pursuant to RCr 11.42 whatsoever filed by him appears 

in the record as certified. Such failure to file a verified 

motion could be forgiven, due to his pro se status at that 

time, had he verified the “Memorandum” he filed, also 

pro se. However, the memorandum was likewise 

unverified. As there was a lack of conformity with RCr 

11.42, the Perry Circuit Court did not have jurisdiction to 

consider the pleading.

Hurt v. Commonwealth, No. 2018-CA-001637-MR, 2020 WL 5592606, at *1 (Ky. 

App. Sep. 18, 2020), discretionary review denied (Feb. 9, 2021).

In conclusion, the fact that the movant signed no document – no 

motion, no memorandum – which contained factual allegations of which he and he 

alone would have knowledge, the failure to have the motion verified is fatal and 

jurisdiction was not conferred. Allowing unverified motions would unleash a 

hornet’s nest of spurious allegations against counsel, as there would be no 

consequences to abject character assassination. The requirement to verify holds 

with it the threat of a perjury charge. It is important and must be upheld. I 

therefore dissent in part.
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BRIEFS FOR APPELLANT:

2020-CA-0981-MR:

Jarad McCargo, pro se

West Liberty, Kentucky

2020-CA-1117-MR:

Reginald Thomas

Lexington, Kentucky

BRIEFS FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

James Havey

Assistant Attorney General

Frankfort, Kentucky