ROSTRON (RANDAL J.) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JULY 16, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001938-MR
RANDAL J. ROSTRON
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 07-CR-00173
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, LAMBERT AND NICKELL, JUDGES.
NICKELL, JUDGE: Randal Rostron, pro se, has appealed from the Whitley
Circuit Court’s denial of his motion for post-conviction relief pursuant to CR1
60.02 without first holding an evidentiary hearing. For the following reasons, we
affirm.
1
Kentucky Rules of Criminal Procedure.
The facts of this matter are largely undisputed. On September 11,
2007, Rostron robbed an auto parts store in Corbin, Kentucky. Rostron and his
accomplice entered the store armed with handguns, locked the employees in a
restroom, and took nearly $2,300.00 in cash and over $100.00 in checks from the
business. On October 7, 2007, a Whitley County grand jury indicted Rostron on
one count each of robbery in the first degree,2 unlawful imprisonment in the first
degree,3 and theft by unlawful taking over $300.00.4 On January 22, 2008, the
Commonwealth made an offer on a plea of guilty which Rostron accepted. He
entered a plea to all counts that same day. On March 20, 2008, the trial court
sentenced Rostron in accordance with the Commonwealth’s offer to ten years’
imprisonment for the robbery and five years’ imprisonment each for the theft and
unlawful imprisonment charges. The trial court ordered all of the sentences to be
served concurrently for a total sentence of ten years. Rostron did not appeal from
his conviction.
On January 14, 2009, Rostron filed a motion for post-conviction relief
pursuant to CR 60.02 (e) and (f) requesting the trial court to amend his sentence.
Rather than an amendment to the length of his sentence, Rostron sought an
amendment of his conviction from robbery in the first degree to robbery in the
2
Kentucky Revised Statutes (KRS) 515.020, a class B felony.
3
KRS 509.020, a Class D felony.
4
KRS 514.030, a Class D felony.
-2-
second degree.5 In support of his motion, Rostron contended he had been coerced
into committing the crimes through “homosexual advances by his partner.” He
admitted he was aware of the coercion prior to entering his guilty plea but stated he
did not raise the issue out of shame. He did not deny his guilt in committing the
crimes for which he stood convicted. Rostron indicated he wished to have his
conviction amended so that he would serve less time in prison and be able to
participate in additional programs while incarcerated. Because robbery in the first
degree is classified as a violent offense under KRS 439.3401, Rostron must serve
85% of his sentence before being eligible for parole. However, robbery in the
second degree is not classified as a violent offense, meaning Rostron would only
be required to serve a maximum of 75% of his sentence before being eligible for
release, barring any disciplinary infractions or other violations of law.
In addition to his motion for post-conviction relief, Rostron requested
leave to proceed in forma pauperis, appointment of counsel, and an evidentiary
hearing. The trial court summarily denied Rostron’s motion to amend his sentence
on August 25, 2009, without convening an evidentiary hearing and without
appointing counsel. This appeal followed.
We review the denial of a CR 60.02 motion for an abuse of discretion.
White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). To warrant relief, the
trial court’s decision must have been “arbitrary, unreasonable, unfair, or
unsupported by sound legal principals.” Clark v. Commonwealth, 223 S.W.3d 90,
5
KRS 515.030, a Class C felony.
-3-
95 (Ky. 2007). A trial court may grant relief under CR 60.02 only if a movant
demonstrates “he is entitled to this special, extraordinary relief.” Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). We will affirm the trial court's
decision absent a “flagrant miscarriage of justice.” Id. at 858.
Before this Court, Rostron contends the trial court erred in failing to
consider the mitigating evidence he proffered and in denying his motion for relief
without holding an evidentiary hearing. We discern no error.
First, Rostron’s brief is devoid of any reference to the record or
citation to any authority supportive of his position. He offers no argument or
indication of how the trial court allegedly erred, merely stating an error or errors
occurred. Rostron simply restates his contention that he was victimized as a child,
thus making him more susceptible to coercion. Although he claims his realization
of the childhood events have only “come to light due to psychiatric treatment he is
receiving in prison,” he admits he “failed to produce this evidence prior to entering
his guilty plea, in part because of fear of disclosing a history of being victimized
by physical and sexual abuse to his wife.”
CR 60.02 is not a means of relitigating issues which could have been
raised in other proceedings. McQueen v. Commonwealth, 948 S.W.2d 415 (Ky.
1997). Rostron had the opportunity to appeal his conviction and attack the
judgment under RCr6 11.42 if he believed it had been incorrectly entered. Gross v.
Commonwealth, 648 S.W.2d 853, 855-56 (Ky. 1983). He did neither and is now
6
Kentucky Rules of Criminal Procedure.
-4-
foreclosed from attempting to raise this issue for the first time via CR 60.02. Id. at
857.
Further, Rostron clearly had the ability prior to sentencing to inform
the trial court of the mitigating circumstances he now asserts as the basis for relief.
It has long been held that CR 60.02 relief is unavailable in such situations as the
purpose of the rule is to provide relief upon facts or grounds not appearing in the
record and which were not, and could not have been, discovered until after the
judgment was rendered through no fault of the movant. Harris v. Commonwealth,
296 S.W.2d 700 (Ky. 1956). Clearly, Rostron was aware of the mitigating
conditions prior to sentencing. Thus, his motion for relief was improper.
Nevertheless, even if we were to ignore the above infirmities, Rostron
has failed to show he is entitled to the extraordinary relief he seeks. Trial courts
are without power to amend charges absent the consent of the Commonwealth,
Flynt v. Commonwealth, 105 S.W.3d 415, 425, and amending a judgment of
conviction to allow a defendant to have a shorter period of incarceration or so that
he might have more “perks” while incarcerated is simply inappropriate. There is
no legal or factual basis supporting Rostron’s request. The trial court clearly did
not abuse its discretion in denying Rostron’s motion for relief.
Finally, Rostron asserts that the trial court should have granted him an
evidentiary hearing on his CR 60.02 claims. “A movant is not entitled to a hearing
on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify
vacating the judgment and further allege[s] special circumstances that justify CR
-5-
60.02 relief.” White, 32 S.W.3d at 86 (citation and internal quotation marks
omitted). There is no automatic entitlement to a hearing. Stanford v.
Commonwealth, 854 S.W.2d 742, 744 (Ky. 1993). Only if there is an issue of fact
that cannot be determined on the face of the record must the trial court allow an
evidentiary hearing. Id. at 743-744. If the record refutes his claims of error, there
is no basis for holding an evidentiary hearing. Id. at 743 (citing Glass v.
Commonwealth, 474 S.W.2d 400, 401, (Ky. 1971)). The trial court correctly
determined, based solely on the record, that Rostron’s CR 60.02 claims were not
well-taken. Thus, because Rostron asserted no facts supportive of invalidating or
amending his conviction, the circuit court did not err in disposing of Rostron’s
motion without holding an evidentiary hearing.
For the foregoing reasons, the judgment of the Whitley Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Randal Rostron, pro se
Burgin, Kentucky
Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.