BYRD (GARY WILFRED) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GARY WILFRED BYRD
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NOS. 00-CR-00316, 00-CR-00629 AND 00-CR-00629-0
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: Gary Wilfred Byrd appeals pro se from an order of the Warren
Circuit Court dismissing his post-conviction Kentucky Rules of Criminal
Procedure (RCr) 11.42 motion. Finding no error, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
In May 2000, Byrd was indicted for first-degree trafficking in a
controlled substance, a class C felony, and for being a persistent felony offender in
the first degree (PFO I). Several months later, a second indictment was returned
against Byrd charging him with the same offenses. As court proceedings
progressed, the trial court expressed a desire to give Byrd another chance, and to
prevent Byrd from being sent to prison despite the Commonwealth’s objections.
In due course and with the approval of the trial court, the
Commonwealth offered Byrd a plea agreement to resolve all of his charges. In
exchange for pleading guilty, the Commonwealth recommended that Byrd receive
ten years on each trafficking offense and that the PFO charges be dismissed. The
trafficking convictions would be served consecutively, for a total of twenty years’
Most significantly, the plea agreement provided Byrd with a unique
opportunity to avoid imprisonment if he successfully completed “judge court.”
“Judge court” was a unique program established by Judge Thomas R. Lewis.
Under the program, the court would accept a guilty plea but withhold final
sentencing subject to a defendant’s continued compliance with the conditions
established in his plea agreement, including weekly visits to court and continued
good behavior. If the defendant failed to comply with his plea agreement, the
court would sentence the defendant and remand him to the custody of the
Department of Corrections.
In February 2001, Byrd appeared in court under the influence of
cocaine, in violation of his plea agreement. Consequently, the court sentenced
Byrd to twenty years’ imprisonment.
On February 8, 2002, Byrd filed a pro se motion to vacate his
conviction pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. The
Department of Public Advocacy was appointed to represent Byrd, and appointed
counsel successfully obtained a reduction of Byrd’s sentence from twenty years to
ten years by reducing the trafficking charges to the statutory minimum. The order
reducing Byrd’s sentence was entered on December 17, 2002.
On April 23, 2004, Byrd filed another motion to vacate his ten-year
sentence pursuant to CR 60.02. After conducting a hearing, the trial court denied
his motion for relief on December 28, 2004. This Court affirmed that decision.
Byrd also filed a separate federal habeas action pursuant to 28 U.S.C. § 2254 in
Thereafter, on October 18, 2006, Byrd filed the instant RCr 11.42
motion. In its response, the Commonwealth argued Byrd’s motion should be
dismissed because it was untimely filed. Byrd was appointed counsel on his RCr
11.42 motion on January 29, 2007. In his supplemental motion, Byrd’s appointed
counsel conceded that the RCr 11.42 motion was filed outside the three-year
statute of limitations. Byrd also admitted that his motion was untimely at a hearing
before the trial court on May 14, 2007. Based on these admissions, the trial court
denied the motion. This appeal followed.
In his brief, Byrd reiterates his arguments as to the merits of his
motion but fails to address the issue of its untimely filing. However, RCr
11.42(10) clearly provides that “[a]ny motion under this rule shall be filed within
three years after the judgment becomes final[.]” Byrd’s initial judgment was
entered on February 20, 2001. No direct appeal was filed. However, an
amendment to the judgment was made on December 17, 2002, after Byrd received
relief under CR 60.02 and his sentence was reduced to ten years. Again, no direct
appeal was filed. By any measure, Byrd’s RCr 11.42 motion, filed on October 18,
2006, was clearly outside the three-year statute of limitations contained in RCr
Furthermore, Byrd makes no allegation that the underlying facts were
unknown or could not have been ascertained by reasonable diligence, or that the
motion concerned a new constitutional right that had arisen and held to apply
retroactively. Thus, the exceptions to the three-year limitation period contained in
RCr 11.42(10)(a)-(b) do not apply. Therefore, Byrd’s motion was clearly
Accordingly, the Warren Circuit Court’s denial of the motion for RCr
11.42 relief is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gary W. Byrd, pro se
Roederer Correctional Complex
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General