No. 2014-CA-001625-MR.


Court of Appeals of Kentucky.

Attorney(s) appearing for the Case

Paul Moore, pro se West Liberty, Kentucky, Briefs for Appellant.

Jack Conway , Attorney General of Kentucky, Jeffrey R. Prather , Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.




ACREE, Judge.

At sentencing, a defendant, or his counsel, must be advised of the factual contents and conclusions of the written presentence investigation report (PSI) and afforded a fair and reasonable opportunity to controvert any inaccuracies contained therein. KRS1 532.050. Appellant Paul Moore, through counsel, received and reviewed his PSI before being sentenced to life in prison after pleading guilty to murder and third-degree burglary. Twenty-seven years later, Moore filed a motion in the Shelby Circuit Court to amend his PSI. The circuit court denied Moore's motion as untimely. We agree and affirm.

On September 7, 1986, Moore broke into the apartment of his ex-wife, Charlotte Moore. He stabbed Charlotte, killing her.

A grand jury indicted Moore for murder and third-degree burglary. The circuit court ordered Moore to undergo a psychological evaluation, the results of which classified him as being of limited intellect, but competent to stand trial.

In 1987, Moore pleaded guilty to the indicted charges. For these crimes, the circuit court sentenced Moore to life in prison.2

Almost three decades later, on September 11, 2014, Moore, pro se, filed a motion to correct the PSI that had been prepared and used in connection with his 1987 sentencing. Moore argued the PSI contained factual inaccuracies that impeded his ability to obtain favor with the parole board.

The motion failed to identify any authority, statute, or rule authorizing the circuit court to reopen the contents of a PSI twenty-seven years after entry of the final judgment. In deference to Moore's pro se status, the circuit court construed his motion as made pursuant to CR3 60.02 and KRS 532.050. The circuit court ultimately denied Moore's motion as untimely by order entered September 24, 2014. Moore appealed.

As he did before the circuit court, Moore argues there are mistakes in his PSI concerning the sequence of events leading up to the murder of his ex-wife. These mistakes, Moore asserts, prevented him from receiving a fair hearing before the parole board.4 He contends the circuit court abused its discretion when it denied his motion to correct his PSI and he urges us to remedy the error.

We review the denial of a CR 60.02 motion for an abuse of discretion. Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014). To amount to an abuse of discretion, the circuit court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," we will affirm the circuit court's decision. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).

CR 60.02, when properly invoked, may afford a party relief from a final judgment. It has multiple subsections, but only two are relevant in this case: subsections (a) and (f).

CR 60.02(a) affords relief from a final judgment upon proof of "mistake, inadvertence, surprise, or excusable neglect." This subsection is certainly fitting, at least facially so, since Moore is claiming there are mistakes in his PSI justifying relief. But a motion invoking CR 60.02(a) must be made within one year after judgment is entered. Failure to do so is a bar to relief. Id.

In this case, the final judgment against Moore was entered in 1987. His motion to correct his PSI was filed twenty-seven years later, on September 11, 2014, far beyond the one-year limitations period. Any possible recourse under CR 60.02(a) is time-barred.

Post-judgment relief may also be available under CR 60.02(f). This subsection is the "catch-all" provision of CR 60.02 and aims "to provide relief where the reasons for the relief are of an extraordinary nature." U.S. Bank, N.A. v. Hasty, 232 S.W.3d 536, 541 (Ky. App. 2007) (citation omitted). Unlike CR 60.02(a), a CR 60.02(f) motion is freed of the one-year time constraint. It need only be filed "within a reasonable time." CR 60.02.

Moore contends the first time he ever reviewed his PSI was on July 29, 2014, in consultation with his correctional case manager. He claims his counsel failed to provide certain explanations to him at final sentencing in 1987, failed to allow him to review the PSI, and, during sentencing, the circuit court only asked Moore's counsel questions related to the PSI, not Moore. Moore argues his limited intellect restricted his ability to participate in and understand the nature of the proceedings against him. Moore claims all of these factors, along with the factual inaccuracies contained in his PSI, taken as a whole, amount to "extraordinary circumstances" justifying relief under CR 60.02. Our review convinces us otherwise.

First, the circuit court found, and we agree, that Moore's motion was not filed within a reasonable time. What constitutes a reasonable time is a fluid concept subject to the individualized facts of each particular case. Gross, 648 S.W.2d at 858. The question of timeliness "addresses itself to the discretion of the trial court." Id.

Moore suggests his motion was timely filed because he never saw or read the PSI until July 2014. His motion for relief was filed a mere three months later. His argument rests on the premise that he had no knowledge of the PSI's contents until 2014. But the record reflects the circuit court asked Moore and his counsel about the PSI's factual contents in 1987. At final sentencing, the following exchanged occurred:

Circuit Court: Have you had an opportunity to examine the presentencing investigation report? Moore's Trial Counsel: Yes, your honor. Circuit Court: Any factual errors? Moore's Trial Counsel: None that we could find.

(R. at 230). Moore was indisputably present at final sentencing, with his attorney. He was provided with an opportunity to review his PSI, and was given the opportunity to report any factual errors when questioned at that time. He chose not speak up. While Moore may be of limited intellect, we are not convinced he was unable to appreciate the nature of this exchange. This was his moment to take issue with the PSI's factual findings. He did not do so.

Even if Moore was precluded from reviewing his PSI at sentencing, nothing precluded him from doing so in the intervening years post-sentencing. Moore readily admits he was allowed to review his PSI. Moore's delay of twenty-seven years between his judgment and the filing of his motion cannot be considered "reasonable." We agree with the circuit court's conclusion that Moore's motion was not filed in a timely fashion.

Second, the circumstances of this case are not so extraordinary as to warrant CR 60.02(f) relief. CR 60.02(f) "is to be invoked `only with extreme caution, and only under most unusual circumstances.'" Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329, 332 (Ky. 2007) (citations omitted). We are not convinced that these facts qualify as "extraordinary" or "most unusual."

As previously indicated, trial courts must allow an offender fair opportunity to controvert alleged inaccuracies in the offender's PSI: "[b]efore imposing sentence, the court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation . . . and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them." KRS 532.050. The record in this case, as sketched above, demonstrates the circuit court fully complied with the statute. A PSI was prepared. Moore's counsel was provided a copy of the PSI. Moore's counsel reviewed the PSI, familiarizing himself with its factual contents and conclusions. And Moore's counsel affirmed on the record that the PSI contained no factual errors. Neither Moore nor his counsel requested additional time to examine the PSI's particulars or an opportunity to challenge its contents.

Moore is displeased that the circuit court never asked him directly about the contents of the PSI, but only asked his attorney. This is permissible under the plain language of KRS 532.050. Id. ("[T]he court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation[.]" (Emphasis added)). We see nothing in the circumstances of this case that are so unusual or extraordinary as to justify relief under CR 60.02(f).

Lastly, as to the issue of the timeliness of request for relief, we will read the brief generously as requesting that this Court apply the doctrine of equitable tolling to qualify his motion. The doctrine of equitable tolling has been "a measure applicable to prisoners who attempt to get documents timely filed, yet fail." Hallum v. Commonwealth, 347 S.W.3d 55, 58 (Ky. 2011). The "critical inquiry remains whether the circumstances preventing a petitioner from making a timely filing were both beyond the petitioner's control and unavoidable despite due diligence." Commonwealth v. Carneal, 274 S.W.3d 420, 429 (Ky. 2008) (citations omitted). Moore has failed to demonstrate the presence of any circumstances or expressions of any such due diligence over the past twenty-seven years which prohibited the filing of the present motion within a reasonable time. The circumstances related to his PSI were fully within his control. We find this argument to be without merit.

In sum, we find the circuit court did not abuse its considerable discretion in reaching its decision. Accordingly, we affirm the Shelby Circuit Court's September 24, 2014 Order denying Moore's motion to correct his PSI.



1. Kentucky Revised Statute
2. Moore received a concurrent sentence of twenty years' imprisonment for the first-degree burglary conviction.
3. Kentucky Rules of Civil Procedure.
4. Moore claims, at his recent parole hearing in July 2014, the parole board took issue with his explanation for his crimes based, in large part, on the factual inaccuracies contained within the PSI, and became frustrated with him when he tried to explain that the PSI was "simply wrong."


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