Rollin v. Commonwealth

• Docket Number: 2022-CA-1389-MR
• Decision Date: 22 December 2023
• Parties: TIMOTHY ROLLIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

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TIMOTHY ROLLIN APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

No. 2022-CA-1389-MR

Court of Appeals of Kentucky

December 22, 2023

NOT TO BE PUBLISHED

APPEAL FROM HARDIN CIRCUIT COURT HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 18-CR-00950

BRIEFS FOR APPELLANT: Timothy Rollin, pro se

BRIEF FOR APPELLEE: Daniel Cameron, Matthew F. Kuhn, Bryan D. Morrow.

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.

OPINION

KAREM, JUDGE:

Timothy Rollin, pro se, appeals from the Hardin Circuit Court's denial of his motion to vacate judgment and sentence pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(f). Rollin entered a plea of guilty to second-degree burglary in 2019 and now claims he could not have been convicted because he was the tenant of the apartment he was charged with burglarizing. Upon careful

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review, we agree with the trial court that the motion is procedurally barred and substantively without merit; consequently, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to Rollin, he and Brooke Shoemaker began dating in May 2018 and lived together sporadically in his apartment in Elizabethtown. Rollin's mother leased the apartment and Rollin is listed as a resident on the lease document in the record. Rollin claims Shoemaker would stay at the apartment for a week at a time and at one point stayed there for three weeks. She had a key to the apartment and kept clothes and toiletries there.

On July 9, 2018, Shoemaker obtained an emergency protective order (EPO) against Rollin that prohibited him from coming within 500 feet of the apartment or entering it. The EPO was subsequently vacated in an order entered on July 19, 2018, upon the trial court finding no domestic violence.

Rollin was arrested on August 27, 2018, for violating the EPO and committing burglary by knowingly entering and remaining unlawfully in the apartment on July 13, 2018. The warrant alleged that he kicked in the door and damaged several items in the apartment, including some items belonging to Shoemaker.

Rollin was indicted for burglary in the second degree and for violating the provisions of the EPO. On January 29, 2019, he entered a plea of guilty to the

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charges. He received a sentence of five years for the burglary charge and twelve months for the violation of EPO charge, to be run concurrently for a total sentence of five years, probated for five years.

On November 25, 2019, Rollin filed a motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, alleging his attorneys were ineffective for failing to present evidence that would have resulted in the dismissal of his case: specifically, the testimony of eyewitnesses that he was not in the area when the alleged burglary took place and a copy of the apartment lease showing he was a resident.

On January 13, 2020, Rollin filed a motion to vacate judgment pursuant to CR 60.02(f), claiming his arrest was invalid because the arrest warrant was unsigned.

On February 4, 2020, following a hearing, Rollin's probation was revoked for committing a new felony offense and for his admission to continuing methamphetamine use and manipulation of court-ordered treatment.

On October 6, 2021, the trial court entered an order denying Rollin's RCr 11.42 and CR 60.02(f) motions. Rollin appealed from the order but did not file an appellant's brief. This Court provided him with additional time to file a motion for extension of time and tender the brief, but he failed to do so, and his appeal was dismissed.

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On April 28, 2022, Rollin filed his second CR 60.02(f) motion, which is the subject of the present appeal. He repeated the claim made in his RCr 11.42 motion that he was entitled to extraordinary relief because he could not have been convicted of burglarizing his own home. The trial court denied the motion on the grounds that Rollin was not legally allowed to enter the home under the terms of his EPO, and he intended to commit a crime upon entering the apartment. The trial court further held that the motion was procedurally barred because Rollin could have raised the present arguments in his previous CR 60.02 motion and in his RCr 11.42 motion. This appeal by Rollin followed.

STANDARD OF REVIEW

We review the denial of a CR 60.02 motion for an abuse of discretion. Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citations omitted). Absent a "flagrant miscarriage of justice[,]" we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).

ANALYSIS

"The structure provided in Kentucky for attacking the final...