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Court of Appeals of Kentucky.


NO. 2009-CA-002264-MR

Decided: March 11, 2011

BEFORE:  TAYLOR AND STUMBO, JUDGES;  SHAKE, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Jaron S. Teague, pro se Lebanon, Kentucky BRIEF FOR APPELLEE:  Jack Conway Brandon Roberts Frankfort, Kentucky



Jaron S. Teague appeals pro se from the Jefferson Circuit Court's order denying his motion to vacate his sentence.   After careful consideration of the parties' arguments and the record, we affirm.

On September 30, 1998, a grand jury indicted Teague on charges of escape in the second degree and for being a persistent felony offender (“PFO”) in the first degree.   The charges stemmed from Teague's July 9, 1998 escape from the River City Corrections detention facility while on work release.   Teague was serving a 365-day sentence for a misdemeanor charge.

Thereafter, at an August 20, 1999 pre-trial conference, Teague accepted the Commonwealth's offer on a plea of guilty.   The Commonwealth recommended a five-year sentence on the Escape II charge, enhanced to ten years for the PFO I charge, and also recommended probation.   If the trial court chose not to grant probation, the Commonwealth reserved the right to amend the PFO I charge to a PFO II charge and recommend a five year sentence.

The trial court accepted Teague's guilty plea and sentenced Teague to the enhanced sentence of ten years, but also placed him on probation for five years on the condition that he strictly comply with several requirements, including the requirement that he commit no other offenses, refrain from using alcohol or drugs, and enroll in a treatment program.

Teague subsequently failed to report to the treatment program as he was required to do.   Instead, he was arrested for shoplifting, possession of cocaine, possession of drug paraphernalia, and resisting arrest.   Teague's probation was revoked, and he was ordered to serve his ten year sentence.   This Court affirmed the judgment of the trial court on direct appeal.   Thereafter, Teague served out his ten year sentence and was released on December 1, 2006. Double

Teague filed a motion with the trial court on January 6, 2009 relating to his indictment for Escape II and being a PFO I. It is uncertain what kind of motion Teague intended to file or the type of relief that he was demanding, though the motion was titled, at least in part, as a motion for relief under Kentucky Civil Rule (CR) 60.02.   The motion was denied by the trial court, in which order the trial court noted that it could not address the motion, it could not comprehend the motion, and that Teague was not entitled to relief.   Teague has appealed the trial court's order.

After much consideration, this Court is unable to detect any legal argument or position to which a response is possible.   As evidenced by its order, the trial court apparently encountered the same situation in its assessment of Teague's original motion.

This Court has refused to create arguments for a pro se litigant when a brief is so fundamentally defective, stating that:

While we are willing to overlook inartful pleading by a pro se litigant, we are not willing to create an argument for him.   A shotgun blast of random legal jargon and indiscriminate reference to a hodgepodge of legal authority does not a focused or articulate argument make, and such abusive practice misses any reasonable appellate mark or purpose.

Grant v. Lynn, 268 S.W.3d 382, 391 (Ky.2008).

This Court notes that pro se litigants are not generally held to the same level of legal proficiency as trained counsel.   However, the Court in Grant held that, as a pro se litigant, Teague nevertheless shoulders some of the responsibility of presenting some form of a reasonable argument.   Because Teague has not presented any argument justifying reversal of the trial court, we affirm.

Additionally, to the extent that Teague's motion can be described as a CR 60.02 motion, it was properly denied as it was not filed within a reasonable time. Double Teague's motion before the trial court was titled a “Motion Petition for Notice of Appeal by Way of Extra-ordinary Nature Belated Appeal and CR 60.02(A) Thru (F) ․ [.]” CR 60.02 provides as follows:

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.

(Emphasis added).

A motion for relief pursuant to CR 60.02 is not made within a reasonable time when the motion is made after the sentence has been served.   See Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky.App.2007) (holding that the motion was not filed within a reasonable time when it was filed after completion of sentence and four years after entry of guilty plea);  Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky.App.2004) (“[l]ogic would dictate that a sentence cannot be amended after it has been served”).

Teague served his sentence for the Escape II and PFO I charges and was released on December 1, 2006.   His motion was not filed until January 6, 2009, more than two years after the sentence was served and more than eleven years after entry of the guilty plea.   Thus, the motion was not filed within a reasonable time under CR 60.02.

For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.