KILGORE (JAMES) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: AUGUST 15, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2012-CA-000938-MR JAMES KILGORE v. APPELLANT APPEAL FROM CLINTON CIRCUIT COURT HONORABLE EDDIE C. LOVELESS, JUDGE ACTION NO. 10-CR-00066 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, COMBS, AND VANMETER, JUDGES. CAPERTON, JUDGE: James Kilgore appeals from the April 3, 2012, order of the Clinton Circuit Court. That order denied Kilgore s motion for Kentucky Rules of Civil Procedure (CR) 60.02 post-conviction relief from his charge of first-degree possession of a forged instrument. We affirm. On May 26, 2010, Kilgore cashed a United States Social Security check made payable to Rhonda Carroll and containing Carroll s purported signature. Carroll had passed away on April 14, 2010. On October 10, 2010, Kilgore was indicted for theft by unlawful taking or disposition; criminal possession of a forged instrument, first degree; and being a persistent felony offender, second degree. Pursuant to an agreement with the Commonwealth, Kilgore plead guilty to criminal possession of a forged instrument, first degree. The remaining two charges were dropped. Kilgore was sentenced to five years in the penitentiary, with sixty days to serve and the balance to be probated for five years. In addition, Kilgore was to pay $323 in restitution to the estate of Rhonda Carroll within 90 days of his release from incarceration. Kilgore s probation was revoked on October 17, 2011, for failure to pay the restitution. In 2012, Kilgore filed a pro se Petition for Writ of Coram Nobis. Therein, Kilgore argued that because the amount involved was less than $500, the highest class of crime with which he could be charged was possession of a forged instrument, third degree. That motion, which the trial court treated as a CR 60.02 motion, was denied. This appeal followed. CR 60.02 is the codification of the common law writ of coram nobis, which allows a judgment to be corrected or vacated based upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were not discovered until after rendition of judgment without fault of the parties seeking relief. -2- Barnett v. Commonwealth, 979 S.W.2d 98, 101 (Ky. 1998) (citation omitted). We review a trial court s disposition of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83 (Ky. App. 2000). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (citation omitted). Kilgore s sole argument on appeal is that the trial court abused its discretion when it denied his motion for CR 60.02. In support of his argument, Kilgore asserts that his actual conduct does not fall within the purview of the statute pursuant to which he was convicted. We disagree. The charge of criminal possession of a forged instrument in the first degree is governed by Kentucky Revised Statutes (KRS) 516.050, which states, in its entirety: (1) A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in KRS 516.020. (2) Criminal possession of a forged instrument in the first degree is a Class C felony. KRS 516.050 (emphasis added). KRS 516.020, which governs the crime of forgery in the first degree, reads: (1) A person is guilty of forgery in the first degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be or which is calculated to become or to represent when completed: -3- (a) Part of an issue of money, stamps, securities or other valuable instruments issued by a government or governmental agency; or (b) Part of an issue of stock, bonds or other instruments representing interests in or claims against a corporate or other organization or its property. (2) Forgery in the first degree is a Class C felony. KRS 516.020 (emphasis added). As can be seen above, KRS 516.020(1) has two main parts: identification of the conduct necessary for the crime of first-degree forgery and identification of the instrument necessary for the crime of first-degree forgery. For purposes of Kilgore s conviction under KRS 516.050, the only relevant portion of KRS 516.020 is that portion which identifies specific instruments, not the conduct itself. Nonetheless, Kilgore argues that because he did not participate in the conduct necessary for the implementation of forgery under KRS 516.020, he cannot be found guilty of possession of a forged instrument under KRS 516.050. Despite Kilgore s arguments to the contrary, we note that conviction under KRS 516.050, however, does not require the conduct outlined in KRS 516.020. Instead, KRS 516.050 simply cites to KRS 516.020 for the purpose of defining what instruments might be criminally possessed. Kilgore has improperly expanded the reading of KRS 516.050 and his argument is therefore without merit. Accordingly, we hold that the trial court did not abuse its discretion when it denied Kilgore s CR 60.02 motion. -4- For the foregoing reasons, the April 3, 2012, order of the Clinton Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Margaret Ivie Frankfort, Kentucky Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky -5-

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