Opinion
NO. 2016-CA-000865-MR
05-05-2017
JOHN PRICE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christie A. Moore John K. Bush Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NOS. 00-CR-00291 AND 00-CR-00068 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES. CLAYTON, JUDGE: John Price appeals from an order of the Hopkins Circuit Court that denied his Petition for Relief filed pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 and Kentucky Rule of Civil Procedure (CR) 60.02. We affirm.
The appellant titled the document as a "Petition," however, a request for relief under both rules RCr 11.42 and CR 60.02 should be raised by way of a Motion.
FACTUAL AND PROCEDURAL BACKGROUND
In the 1980s, Price became a full-time pastor at the Life Temple Church. F.P. began attending the Church when she was seven years old and became progressively more involved in church activities by going on numerous church sponsored trips to Africa and Europe and attending the church school. F.P. performed gratuitous domestic services such as cooking, cleaning, and helping care for Price's four children. In these duties, she frequently stayed overnight at the Price residence. Later, after graduating from school, F.P. worked as Price's full-time administrative assistant.
In April 2000, Price was charged in two indictments with numerous sexual offenses related to incidents involving F.P., which allegedly began in 1982 when she was fourteen years of age until she was twenty-two years old. Price's defense to the charges was that the sexual contact with F.P. was consensual. After a jury trial in October 2001, Price was convicted of five counts of sexual abuse in the first degree, one count of sodomy in the first degree, one count of attempted rape in the first degree, and two counts of rape in the first degree. In December 2001, the circuit court sentenced Price to sixty-nine years' imprisonment consistent with the jury's recommendation. Price filed a direct appeal to the Kentucky Supreme Court based on a claim that he was entitled to a directed verdict of acquittal on all counts because the prosecution failed to produce sufficient evidence establishing forcible compulsion. On August 21, 2003, the Supreme Court rendered an Opinion affirming the judgment of the circuit court.
Price v. Commonwealth, 2001-SC-001023, 2003 WL 21993641 (Ky. August 21, 2003).
In February 2004, Price filed his first motion for post-conviction relief pursuant to RCr 11.42 and CR 60.02. The circuit court granted the motion with respect to the sodomy in the first degree and vacated the conviction and twenty-year sentence on that count, which reduced his total sentence to forty-nine years. However, the circuit court denied the motion with respect to his challenge based on the sufficiency of the evidence of forcible compulsion as previously addressed by the Supreme Court. On appeal to this Court, we affirmed the circuit court and decided not to reconsider the Supreme Court's opinion based on the law of the case doctrine and the successive motion doctrine.
Commonwealth v. Price, 2006-CA-000454, 2007 WL 4553688 (Ky. App. December 28, 2007).
In February 2009, Price filed a Petition for Writ of Habeas Corpus in federal court pursuant to 28 U.S.C.A. § 2254 (1996) contending that the state courts unreasonably applied United States Supreme Court precedent in rejecting his sufficiency of the evidence claim. The federal district court granted the Writ as to two of the sexual abuse convictions because they involved surprise rather than forcible compulsion, but denied it as to the remaining offenses, and ordered those two convictions to be vacated. In April 2014, the Sixth Circuit Court of Appeals rendered an Opinion affirming the district court. In June 2014, the Hopkins Circuit Court entered an order expunging the convictions for the two counts of sexual abuse identified in the Sixth Circuit's opinion.
Price v. Haney, 562 Fed.Appx 334 (6th Cir. 2014).
On June 29, 2015, Price filed his petition pursuant to RCr 11.42 and CR 60.02 alleging his convictions violated due process because of insufficiency of the evidence based on the recent Kentucky Supreme Court case of Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014). On May 16, 2016, the circuit court entered an Opinion and Order denying the petition. This appeal followed.
See supra note 1. --------
STANDARD OF REVIEW
In order to be granted relief under RCr 11.42, the movant must demonstrate an error that "rise[s] to the level of a constitutional deprivation of due process." Johnson v. Commonwealth, 180 S.W.3d 494, 498 (Ky. App. 2005) (quoting Commonwealth v. Basnight, 770 S.W.2d 231, 237 (Ky. App. 1989)). Where the circuit court denies the motion without an evidentiary hearing, appellate review is confined to whether the RCr 11.42 motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction. Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000).
The standard of review involving the denial of a CR 60.02 motion is abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," the trial court should be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
ANALYSIS
A. Price's Motion under RCr 11.42 was untimely.
The circuit court held that Price's RCr 11.42 motion was time barred. RCr 11.42(10) requires that any motion under the rule be filed within three years after the judgment becomes final unless the movant proves: (a) the facts upon which the motion is predicated were unknown and could not have been ascertained by the exercise of due diligence; or (b) the fundamental constitutional right being asserted was not established within the period provided for and has been held to apply retroactively. We agree with the circuit court that neither of these exceptions to the three-year limitation applies to the current case and the unpublished cases cited by Price to support his position are distinguishable. In fact, in Miller v. Commonwealth, 2009-CA-001559, 2011 WL 579067 (Ky. App. February 18, 2011), the Court noted that pursuant to Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), case law involving a new rule should not be applied retroactively, but it could possibly be so applied where the RCr 11.42 motion is pending when the new case was decided. In the current situation, Price's conviction became final in August 2003 and the RCr 11.42 motion at issue in this appeal, his second such motion, was filed in June 2015, long after the three-year limitation period and after Yates was decided. Thus, it is untimely and not subject to review under RCr 11.42 at this time.
B. Price's Motion under CR 60.02.
Price raises the same issues presented in his earlier post-conviction proceedings, but contends that the Kentucky Supreme Court in Yates, supra, significantly altered the law involving the statutory interpretation of the law related to his convictions. He argues that both the prior Kentucky Supreme Court decision affirming the convictions and the federal cases denying his federal habeas corpus petition relied on the state Supreme Court case of Yarnell v. Commonwealth, 833 S.W.2d 834 (Ky. 1992), which Price claims was overturned by Yates. He maintains that applying the analysis of Kentucky Revised Statutes (KRS) 510.040(1)(a), the forcible compulsion statute applicable to first-degree sexual offenses, as discussed in Yates results in the conclusion that there was insufficient evidence to support his convictions. "Forcible compulsion" is defined as a "threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under [KRS Chapter 510]." Yates, 430 S.W.3d at 889.
In Yarnell, the defendant was convicted of several first-degree sexual offenses involving his two stepdaughters occurring over several years under circumstances where they were afraid of him and did not offer significant resistance. The Court found that the stepchildren's fear of what Yarnell may have done to their mother, coupled with emotional, verbal and physical duress, constituted sufficient evidence of forcible compulsion. 833 S.W.2d at 836-37.
In Yates, the defendant was convicted of one count of Rape I and one count of Sexual Abuse I occurring on one night after he had threatened to tell his 14-year-old stepdaughter's mother about her relationship with her 18-year-old boyfriend, which he indicated could cause him to go to jail for being in a relationship with a minor. The victim stated that she had agreed to have sex with Yates because of the threat to tell her mother about her boyfriend. 430 S.W.3d at 887. The Supreme Court held that there was insufficient evidence of forcible compulsion by physical force because the victim voluntarily acquiesced in sex with the defendant. Id. at 892. It further held there was insufficient evidence of forcible compulsion by implied or express threat because the threat did not place the victim in fear of immediate death or physical injury to herself or another, i.e., the fear of harm to her boyfriend was too tenuous and extended to be immediate. Id. at 893.
Price relies on language in Yates where the Court stated that the court in Yarnell "drifted astray from the language of the statute." 430 S.W.3d at 894. However, the Court in Yates also stated:
Our decision in Yarnell drifted astray from the language of the statute and created confusion about what types of threats are sufficient to satisfy the definition of forcible compulsion. Regardless, when this Court examines the facts of Yarnell according to the language of the statute, there is little doubt that the result of that case was correct. The children testified to a constant fear of physical abuse. This constant fear translates to a continual fear of immediate physical injury. The children clearly perceived they could be hurt at any time by the defendant so they went along with his sexual demands.
But this case is distinguishable from Yarnell because the
fear of physical injury to the victim's boyfriend was too attenuated and not immediate. The victims in Yarnell feared immediate retribution at the hands of the defendant based on a long pattern of behavior and family dynamic. Here, however, by Sally's own admission, whatever harm might come to Austin would not be immediate, coming instead at some unspecified and unknowable time in the future.Id. at 894-95. The Court in Yates did not state that it was overturning Yarnell, and in fact, it is consistent with Yarnell. Yates did not represent a significant change in the interpretation of the law.
Similarly, a review of the record indicates that there was sufficient evidence to support the convictions of Price even under the requirements expressed in Yates. Price focuses on F.P.'s testimony involving retribution from God. Price's claim that his convictions were based solely on F.P.'s fear of some future, uncertain harm fails to acknowledge the whole extent of F.P.'s testimony and the other evidence of her situation.
In Price's direct appeal, the Kentucky Supreme Court described the evidence as to each count with respect to both components of forcible compulsion, physical injury and implied and express threats. With respect to physical injury, the Court stated:
The evidence indicated that Appellant physically pushed F.P.'s head to his penis, forcefully grabbed her breast and held back her body in the course of engaging in the above described sexual acts with her. Moreover, she testified that she did struggle to break free of Appellant's grasp by collapsing away from him or breaking his grasp.2003 WL 21993641, at *10-11.
With respect to fear caused by the threat of injury, the Court said:
The jury could have believed that the environment in which F.P. was immersed at Life Temple Church was one that caused her to be in fear of imminent death or injury, and thus the jury could reasonably find that Appellant committed the acts charged by means of forcible compulsion. Appellant in this case underwent a swift assent to head pastor of Life Temple Church. The congregation had recently endured a heated church split, and Appellant preached to his followers that the members who left would suffer terrible consequences and would ultimately go to hell. F.P. testified that Appellant's temper was common knowledge; he once became so angry with another church member that he choked him and he once smashed her windshield after discovering that a man had invited her to Florida for a visit. Moreover, he subjected F.P. to constant abuse by verbally berating her, insisting that it was she who wanted the sexual advances to continue.Id., at *11.
Similarly, the Sixth Circuit rejected Price's federal due process argument that there was insufficient evidence of forcible compulsion. The Court noted that F.P. testified to circumstance showing that she submitted to Price's advances because she lived in continued fear that Price would physically harm her. Price v. Haney, 562 Fed.Appx at 338. The Court also rejected Price's claim the threat was not sufficiently immediate.
Price counters the import of this forcible-compulsion evidence, arguing that, because F.P. testified that she feared God's physical punishment, no evidence shows that she feared Price—and according to him, a fear of God alone cannot sustain convictions for forcible compulsion. The record reasonably reflects, however, that F.P. also feared physical abuse at Price's hands. He
painfully touched her multiple times. When asked by the prosecutor at trial whether she was "afraid he would hurt" her during one incident, she responded "Yes, I didn't know what he would do. If he would do this, I didn't know what the man would do." (R. 67-1, Trial Tr. at 37.) Her response shows that, though not knowing precisely how Price could harm her, she nevertheless feared physical abuse.Id. at 339-40. Both decisions by the Kentucky Supreme Court and the Sixth Circuit are consistent with the interpretation of the forcible compulsion statute expressed in Yates. Therefore, the circuit court did not abuse its discretion in denying the CR 60.02 motion.
In addition, even if Yates represented a significant change in the law, Price would not be entitled to relief. CR 60.02 is designed to correct factual, not legal errors. See Leonard v. Commonwealth, 279 S.W.3d 151, 161 (Ky. 2009). Moreover, "[a] change in the law simply is not grounds for CR 60.02 relief except in 'aggravated cases where there are strong equities.'" Id. at 162 (quoting Reed v. Reed, 484 S.W.2d 844, 847 (Ky. 1972)). See also Campbell v. Commonwealth, 316 S.W.3d 315 (Ky. App. 2009). As the Court in Campbell noted, the prescription against applying new rules retroactively once a judgment is final on direct review makes sense, given the interest in finality of judgments. "To permit otherwise would wholly vitiate the finality of judgments in that each change in the law would allow or require relitigation of the facts and law of every case." Id. at 320. In this case, Price received direct and collateral review in the state courts, as well as habeas corpus review in the federal courts. His original convictions by the jury were reduced by the state courts and the federal courts, some of which had been based on lack of evidence. He has not shown that the equities weigh in favor of providing relief based on a change of law.
For the foregoing reasons, we affirm the order of the Hopkins Circuit Court.
DIXON, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Christie A. Moore
John K. Bush
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky