BILLY J. STONE, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 28, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000934-MR
BILLY J. STONE, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 95-CR-00854
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, McANULTY, AND TACKETT, JUDGES.
KNOPF, JUDGE:
This is an appeal by Billy J. Stone, Jr. from an
order of the Fayette Circuit Court denying his motion for postconviction relief pursuant to CR1 60.02.
Because the issues
raised by Stone do not entitle him to relief under CR 60.02, we
affirm.
On October 5, 1995, Stone was indicted for two counts
of first-degree rape2 and five counts of first-degree sexual
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes (KRS) 510.040.
abuse.3
The charges were brought as a result of allegations made
by Stone’s stepdaughter that he had engaged in sexual contact
with her, including intercourse, while she was less than twelve
years of age.
On November 17, 1995, in conjunction with a plea offer
by the Commonwealth, Stone filed a petition to enter a plea of
guilty.
Under the plea agreement, in exchange for Stone’s plea
of guilty to the amended charge of second-degree rape4 and two
counts of first-degree sexual abuse, the Commonwealth agreed to
dismiss the remaining counts.
On November 20, 1995, the trial
court entered a judgment accepting the plea agreement, but
reserving sentencing pending a presentence investigation.
On
February 12, 1996, the trial court entered final judgment
sentencing Stone to ten years on the second-degree rape charge
and five years on each of the two sexual abuse charges.
The
sexual abuse sentences were ordered to run concurrently with each
other, but to run consecutively with the rape sentence, for a
total of fifteen years to serve.
On June 20, 1997, Stone filed a motion captioned
“Motion to Correct Sentence Motion to Correct Illegal Sentence.”
The motion, citing RCr5 11.42, sought to have Stone’s sentences
run concurrently on the basis that the consecutive sentencing was
a violation of Stone’s constitutional rights, including a
violation of double jeopardy rules.
On July 15, 1997, the trial
3
KRS 510.110.
4
KRS 510.050.
5
Kentucky Rules of Criminal Procedure.
-2-
court entered an order denying the motion.
No appeal was taken
from this order.
On June 30, 1999, Stone filed a motion to “Modify-Amend
or Vacate Judgement Pursuant to RCr 13.04 and CR 60.02.”
The
motion alleged that the investigating officer violated Stone’s
Miranda rights, that his convictions were obtained without
sufficient evidence, and that his guilty plea was invalid because
it was not made knowingly, intelligently, and voluntarily.
The
filing also included a letter from the victim stating that Stone
had not raped her and that “[w]hat [she] thought was rape wasn’t
[because] there was no sexual intercourse.”
On August 10, 1999,
the trial court entered an opinion and order denying the motion.
Stone filed an appeal to this Court; however, on April 19, 2000,
the Court dismissed the appeal because Stone failed to file a
brief.6
In the meantime, on January 12, 2000, Stone filed a
“Motion for Permission to Refile CR 60.02 Under Newly Discovered
Evidence.”
On January 19, 2000, the trial court entered an order
granting the motion but holding the matter in abeyance pending
this Court’s ruling on the then pending appeal.
Apparently as a
result of the trial court’s granting of his motion to refile, on
February 23, 2000, Stone filed a “CR 60.02 Motion to Run
Sentences Concurrently.”
The motion sought to have his sentences
run concurrently on the basis that he received a sentence of “180
months [sic]” for the rape conviction whereas the “average length
of sentence handed down on rape convictions nationwide is roughly
6
See Court of Appeals Case No. 1999-CA-002060.
-3-
127 months[.]”
Stone also attached to the filing the notarized
affidavit of the victim which, again, recanted the rape
allegation.
The affidavit stated, in part, “Billy did NOT rape
me, and I’m not going to go into it any further than that.”
On March 23, 2001, the trial court entered an order
denying Stone’s motion on the basis that Stone had stated no
grounds and offered no proof for which relief may be granted
under CR 60.02.
On April 2, 2001, Stone filed a motion to vacate
the order denying CR 60.02 relief.
On April 10, 2001, the trial
court entered an order denying the motion to vacate.
This appeal
followed.
On appeal, Stone contends that his sentence should be
modified to run his sentences concurrently because his sentence
is excessive when compared to the sentences received by other
persons convicted of similar crimes, and because the sworn
affidavit of the victim states that he did not rape her or have
sexual intercourse with her.
CR 60.02 provides as follows:
On motion a court may, upon such terms as are
just, relieve a party or his legal
representative from its final judgment,
order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise
or excusable neglect; (b) newly discovered
evidence which by due diligence could not
have been discovered in time to move for a
new trial under Rule 59.02; (c) perjury or
falsified evidence; (d) fraud affecting the
proceedings, other than perjury or falsified
evidence; (e) the judgment is void, or has
been satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (f) any
other reason of an extraordinary nature
justifying relief. The motion shall be made
within a reasonable time, and on grounds (a),
-4-
(b), and (c) not more than one year after the
judgment, order, or proceeding was entered or
taken. A motion under this rule does not
affect the finality of a judgment or suspend
its operation.
Grounds for relief based upon the purported statistical
study does not clearly fall within any of the subsection
categories of CR 60.02.
However, rather than attempt to classify
which category of the rule this grounds falls within and whether
the grounds falls within the one year limitations period, we will
simply note that Stone’s allegation that his sentence is
excessive in comparison with other convicted rapists is based
upon a flawed analysis.
While we do not in any way accept the
purported statistical study as valid, we note that Stone contends
that the average length of a sentence handed down in a rape
conviction nationwide is approximately 127 months.
In fact,
pursuant to the plea agreement, Stone was sentenced to 120 months
for his second-degree rape conviction, which, according to the
statistics advanced by Stone, is less than the national average.
Hence, based upon the study relied upon by Stone, his rape
sentence is less than the national average, and the study weighs
against his argument that he is entitled to relief because of an
excessive sentence.7
The recantation evidence most closely falls within CR
60.02(c), perjured or falsified evidence, and a motion for relief
upon this ground was required to be brought within one year of
7
In arriving at the 180 month figure, Stone apparently added
the 60 months he received for the two first-degree sexual abuse
convictions to the 120 months he received for the rape
conviction. This is obviously not a valid calculation to
determine the sentence he received for the rape conviction.
-5-
the judgment.8
Final judgment was entered on February 12, 1996,
and the present CR 60.02 motion was filed on February 23, 2000 well beyond the one year limitations period.
Further, the
victim’s initial recantation letter was filed into the record on
November 18, 1997.
Stone failed to file a CR 60.02 motion even
within one year of the date of the original recantation.9
Moreover,
[t]he general rules are that recanting
testimony is viewed with suspicion; mere
recantation of testimony does not alone
require the granting of a new trial; only in
extraordinary and unusual circumstances will
a new trial be granted because of recanting
statements; such statements will form the
basis for a new trial only when the court is
satisfied of their truth; the trial judge is
in the best position to make the
determination because he has observed the
witnesses and can often discern and assay the
incidents, the influences and the motives
that prompted the recantation; and his
rejection of the recanting testimony will not
lightly be set aside by an appellate court.10
We construe the trial court’s denial of Stone’s CR
60.02 motion as, in part, a rejection of the victim’s
recantation.
We discern no basis for disturbing the trial
court’s disposition of the issue.
8
CR 60.02.
9
Pursuant to Commonwealth v. Spaulding, Ky., 991 S.W.2d 651
(1999), a conviction based on perjured testimony can be a reason
of an extraordinary nature justifying relief pursuant to CR
60.02(f), and therefore not subject to the one year limitations
period, if the perjury resulted in a violation of due process of
law. Here, however, Stone knowingly and voluntarily entered a
guilty plea to second-degree rape, and in conjunction therewith,
his due process rights were rigorously observed. We are not
persuaded that the circumstances of this case invoke CR 60.02(f).
10
Thacker v. Commonwealth, Ky., 453 S.W.2d 566, 568 (1970).
-6-
For the foregoing reasons the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Billy J. Stone, Jr., pro se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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