THOMAS R. PAYNE v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 2, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2003-CA-000380-MR
THOMAS R. PAYNE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TOM McDONALD, JUDGE
INDICTMENT NO. 147073
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI and MINTON, Judges; and MILLER, Senior Judge.1
MINTON, Judge:
orders
of
the
Thomas Payne appeals from two opinions and
Jefferson
Circuit
Court:
one
entered
on
November 7, 2002, which denied his motion for relief pursuant to
Kentucky Rules of Civil Procedure (CR) 60.02, and one entered on
January 2, 2003, which denied his motion to alter, amend, or
vacate
the
CR 59.05.
1
November
7,
2002,
opinion
and
order
pursuant
to
After reviewing the record, we conclude that Payne
Senior Judge John D. Miller sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.
has
failed
extraordinary
to
demonstrate
relief
under
reasons
CR
60.02
relief by this court under CR 59.05.
sufficient
and
is
not
to
justify
entitled
to
Therefore, we affirm the
Jefferson Circuit Court.
On
May
24,
1972,
a
Jefferson
County
grand
jury
indicted Payne on one count of rape of a female over the age of
twelve, Kentucky Revised Statutes (KRS) 435.090, and one count
of detaining a female, KRS 435.110, for acts which occurred in
1971.2
When the indictment was returned, Payne was incarcerated
in Georgia for unrelated crimes.
On May 17, 1977, a Jefferson
County grand jury indicted Payne on two additional counts of
detaining a female, KRS 435.110, for acts which also occurred in
1971.
The two indictments were then consolidated for trial.
Payne was paroled by Georgia and released to Kentucky pursuant
to the interstate detainer agreement.
On September 7-8, 1977,
Payne was tried by jury in Jefferson Circuit Court on one count
of rape of a female over twelve and two counts of detaining a
female.3
The jury returned a guilty verdict on all three counts.
The circuit court entered a judgment against Payne and sentenced
him to life imprisonment for rape and five years each for both
2
Both KRS 435.090 and KRS 435.110 later were repealed with the
enactment of the Kentucky Penal Code, which became effective on
January 1, 1975.
3
The third count of detaining a female was not tried at this time
and was subsequently dismissed.
2
counts of detaining a female, with all sentences to run concurrently.
Payne
appealed
his
conviction
to
the
Kentucky
Supreme Court, which affirmed the conviction on April 1, 1980.
He then filed a motion for relief pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42.
circuit
court
on
September
This motion was denied by the
2,
1981,
and
the
motion was subsequently affirmed on appeal.
in 1983.
denial
of
this
Payne was paroled
In December 1986, he was convicted of another crime in
California and incarcerated there.
After being released from
custody in California in 2000, he returned to Kentucky to serve
out the remainder of his life sentence.
Payne filed a pro se CR 60.02 motion on February 8,
2001,
asserting
that
he
received
ineffective
assistance
of
counsel both at trial and on direct appeal and, alternatively,
that his sentence of life imprisonment for rape is unconstitutional.
In March 2001, Payne was appointed counsel from the
Department of Public Advocacy (DPA) for his CR 60.02 motion.
His appointed counsel filed a supplemental brief on behalf of
Payne reiterating and further developing Payne’s earlier pro se
motion.
At Payne’s request, an evidentiary hearing was con-
ducted on October 24, 2002, concerning his CR 60.02 motion.
On
November 7, 2002, the Jefferson Circuit Court entered an opinion
and
order
denying
Payne’s
motion
CR 60.02.
3
for
relief
pursuant
to
On November 18, 2002, Payne filed a CR 59.05 motion
requesting
the
circuit
court
to
alter,
November 7, 2002, opinion and order.
amend,
or
vacate
its
On January 2, 2003, the
Jefferson Circuit Court entered an opinion and order denying
Payne’s CR 59.05 motion.
Payne filed a notice of appeal of the
opinions and orders denying his CR 60.02 motion and CR 59.05
motion on January 16, 2003.
Relief under CR 60.02 is discretionary because it is
phrased permissively:
“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.”4
In Gross v. Common-
wealth,5 the Kentucky Supreme Court outlined the precise role of
CR 60.02 in the scheme of appellate review of criminal cases.
A
convicted individual defendant must first seek appellate review
then file a motion for relief under RCr 11.42 raising every
issue of which he should be aware before filing a motion for
relief under CR 60.02.6
which
it
replaced,7
extraordinary relief”8
CR 60.02, like the writ of coram nobis
is
designed
to
provide
“special,
rather than an opportunity to relitigate
4
CR 60.02.
5
Ky., 648 S.W.2d 853 (1983).
6
Id. at 857.
7
Id.
8
McQueen v. Commonwealth, Ky., 948 S.W.2d 415,416 (1997).
Emphasis added.
4
those
issues
which
reasonably
could
have
been
direct appeal or in an RCr 11.42 proceeding.
restricted to specifically named grounds.
following grounds:
presented
on
CR 60.02 relief is
Payne relies upon the
“(e) ...it is no longer equitable that the
judgment should have prospective application; or (f) any other
reason of an extraordinary nature justifying relief.”
A claim
that a conviction was obtained in violation of constitutionally
protected rights is considered to fall within the category of
“any other reason of an extraordinary nature justifying relief.”9
CR 60.02 also requires as a threshold to relief that “the motion
shall be made within a reasonable time.”
The Kentucky Supreme
Court has stated that “[w]hat constitutes a reasonable time in
which to move to vacate a judgment under CR 60.02 is a matter
that addresses itself to the discretion of the trial court.”10
On appeal, Payne argues that the circuit court abused
its discretion in denying his CR 60.02 motion.
He asserts that
he is entitled to relief under CR 60.02 because he received
ineffective assistance of counsel both at trial and on direct
appeal.
Specifically,
Payne
asserts
that
neither
his
trial
counsel nor appellate counsel informed him that, pursuant to
KRS 446.110, he could be sentenced according to the mitigating
provisions of the rape statute which was in effect at the time
9
Gross, 648 S.W.2d at 857.
10
Id. at 858.
5
of his 1977 trial rather than the rape statute that was in
effect when the rape was committed in 1971.
Payne was indicted,
convicted, and sentenced under KRS 435.090, rape of a female
over twelve.11
KRS 435.090 states that rape of a female over
twelve “shall be punished by death,12 or by confinement in the
penitentiary
for
life
without
privilege
of
parole,
or
by
confinement in the penitentiary for life, or by confinement in
the penitentiary for not less than ten (10) nor more than twenty
(20)
years.”
Effective
January
1,
1975,
KRS
435.090
was
repealed and KRS 510.040, rape in the first degree, went into
effect.
KRS 510.040(2) states that “[r]ape in the first degree
is a Class B felony unless the victim is under twelve (12) years
old or receives serious physical injury in which case it is a
Class A felony.”
Payne asserts, and the Commonwealth does not
dispute, that the victim of his rape did not sustain serious
physical injury.
We will assume this to be true solely for the
purpose of argument.
Because Payne was indicted, convicted, and
sentenced with committing the offense of “rape of a female over
11
This statute, effective June 13, 1944, remained in force and
unchanged until repealed by the adoption of the Kentucky Penal Code,
effective January 1, 1975.
12
Although this case does not involve the imposition of the death
penalty, we note that the United States Supreme Court subsequently
ruled that the imposition of the death penalty for rape of an adult
woman is excessive and violates the Eighth Amendment’s prohibition
against cruel and unusual punishment. Coker v. Georgia, 433 U.S. 584,
592, 987 S.Ct. 2861, 2866, 53 L.Ed.2d 982, 989 (1977).
6
twelve,” we know that the victim was twelve years of age or
older.
Therefore,
if
Payne
had
been
sentenced
under
KRS 510.040, he would have been sentenced as if he had committed
a Class B felony.
The sentencing range available for a Class B
felony is not less than ten (10) years imprisonment nor more
than twenty (20) years imprisonment.13
Notably, life imprison-
ment may not be imposed for a single, unenhanced class B felony.
Payne asserts that, pursuant to KRS 446.110, he should
have
been
sentenced
for
rape
according
to
the
more
lenient
sentencing range available under KRS 510.040 rather than the
applicable rape statute in effect in 1971 when the rape was
committed, KRS 435.090.
KRS 446.110 states as follows:
No new law shall be construed to repeal a
former law as to any offense committed
against a former law, nor as to any act
done, or penalty, forfeiture or punishment
incurred, or any right accrued or claim
arising under the former law, or in any way
whatever to affect any such offense or act
so committed or done, or any penalty,
forfeiture or punishment so incurred, or any
right accrued or claim arising before the
new law takes effect, except that the
proceedings thereafter shall conform, so far
as practicable, to the laws in force at the
time of the proceedings.
If any penalty,
forfeiture or punishment is mitigated by any
provision of the new law, such provision
may, by the consent of the party affected,
be applied to any judgment pronounced after
the new law takes effect.
13
KRS 532.060(2)(b).
7
Payne
asserts
statute,
choose
that,
pursuant
his
counsel
whether
to
should
be
to
have
the
last
sentence
of
this
him
that
he
could
according
sentenced
informed
to
the
old
rape
statute, KRS 435.090, or the mitigating provisions of the new
rape statute, KRS 510.040.
Courts are required to sentence a
defendant in accordance with the law that existed at the time
the
offense
was
committed,
unless
the
defendant
specifically
consents to the application of a subsequently-enacted law and
the new law is certainly or definitely mitigating.14
instant
case,
the
sentencing
definitely
mitigating
sentencing
range
which
are
KRS 510.040:
more
of
under
that
KRS
severe
structure
of
435.090
than
any
KRS
of
KRS
435.090
In the
510.040
because
included
three
penalty
available
is
the
sentences
under
death,15 life imprisonment without the possibility
of parole, and life imprisonment.
Payne
testified
at
his
evidentiary
hearing
that
neither his trial counsel nor appellate counsel informed him
that he could be sentenced under the more lenient sentencing
guidelines of KRS 510.040 pursuant to KRS 446.110.
went into effect in 1942.
KRS 446.110
KRS 510.040 went into effect in 1975.
Payne was tried, convicted, and sentenced in 1977.
He stated
that he first learned of these statutes in approximately 2000
14
Lawson v. Commonwealth, Ky., 53 S.W.3d 534, 550 (2001).
15
See supra note 11, at 6.
8
through a legal aid worker.
According to Payne, the legal aid
worker told him of an inmate named Daniel Jones who had been
sentenced in 1975 to life imprisonment without the possibility
of parole for rape but whose sentence had been reduced in 1998
by the Lyon Circuit Court to twenty years imprisonment pursuant
to the mitigating provisions of KRS 446.110 and KRS 510.040.
Even if Payne’s claims concerning the legal aid worker
and Jones are true, they do not provide grounds for relief under
CR 60.02.
KRS
Payne should have raised the issue of KRS 446.110 and
510.040
and
their
impact
on
his
sentencing
sooner.
Kentucky’s highest court has held that the fact that a party or
his counsel has misinterpreted or misunderstood the law is not
grounds for a new trial; the proper remedy is direct appeal.16
Moreover, the fact that Payne may not have had actual knowledge
about the statutes in question at the time of his direct appeal
is not relevant because “[e]very person is conclusively presumed
to know the law.”17
Because Payne knew the underlying facts and
was presumed to have knowledge of the relevant statutes at the
16
Hurd v. Laurel County Board of Education, Ky., 267 Ky. 730, 103
S.W.2d 277 (1937).
17
Oppenheimer v. Commonwealth, Ky., 305 Ky. 147, 202 S.W.2d 373,
375 (1947).
9
time of his direct appeal, he could have and should have raised
his claim then.18
Ordinarily, before addressing the merits of a motion
for relief under CR 60.02, we also would address the timeliness
of the motion since the rule requires that a motion for relief
“shall
be
made
within
a
reasonable
time.”
Curiously,
the
circuit court did not address the timeliness of Payne’s motion
in its opinion and order, despite the fact that it was filed
twenty-three years after his conviction.
Whether a motion under
CR 60.02 is timely is an issue to be decided by the circuit
court.19
Payne asserts that the fact that the circuit court
ordered an evidentiary hearing and then addressed the merits of
his argument in its order and opinion means that the circuit
court necessarily determined that his CR 60.02 motion was made
within a reasonable time.
We disagree with this assumption.
However, because Payne’s case may be resolved on other grounds,
we need not decide this issue.
We will assume for the purpose
of argument that the circuit court did determine that Payne’s
motion was filed within a reasonable time.
18
Payne’s claim of ineffective
appeal is addressed infra at 11-12.
19
Gross, 648 S.W.2d at 858.
10
assistance
of
counsel
on
direct
The standard for an ineffective assistance of counsel
claim, as set forth in Strickland v. Washington20 and adopted by
the Kentucky Supreme Court in Gall v. Commonwealth,21 requires
the movant to show that counsel’s performance was deficient and
that the deficient performance prejudiced the defense.
to
show
prejudice,
possibility
that
the
the
movant
jury
must
would
demonstrate
have
a
reached
a
In order
reasonable
different
result.22
Regarding
appeal
also
Payne’s
provided
claim
that
ineffective
his
counsel
assistance
of
on
direct
counsel,
the
United States Supreme Court has stated that the standard for
ineffective assistance of counsel for a matter-of-right, first,
direct
appeal
Strickland.23
later
stated
“[i]neffective
in
a
criminal
case
is
the
same
as
stated
in
Notwithstanding this, the Kentucky Supreme Court
unequivocally
assistance
in
of
Lewis
appellate
cognizable issue in this jurisdiction.”24
v.
Commonwealth
counsel
is
that
not
a
Despite this apparent
conflict in the law, we are bound by Rule 1.030(8)(a) of the
20
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693
(1984).
21
702 S.W.2d 37, 39 (1985).
22
Bowling v. Commonwealth, Ky., 981 S.W.2d 545, 551 (1998).
23
See Smith v. Robbins, 528 U.S. 259, 285-89, 120 S.Ct. 746, 76466, 145 L.Ed.2d 756, 780-81 (2000).
24
42 S.W.3d 605, 614 (2001).
11
Rules of the [Kentucky] Supreme Court to apply Lewis regardless
of our evaluation of its correctness.
Therefore, we hold that
Payne’s ineffective assistance of appellate counsel claim is not
cognizable in Kentucky.
Even if it were, however, Payne’s claim
would fail on the merits because it is based on the same facts
as his ineffective assistance of trial counsel which fails on
the merits for the reasons noted herein.
In the instant case, Payne has failed to show that his
trial
counsel’s
representation
objectively unreasonable.
for
Payne’s
trial
was
deficient,
meaning
It was not objectively unreasonable
counsel
to
fail
to
inform
him
of
the
mitigating provisions of KRS 446.110 and KRS 510.040 because, as
a
matter
of
statutory
advantage
of
these
following
restrictions
law,
Payne
provisions.
on
the
was
KRS
not
eligible
500.040
sets
applicability
of
the
Penal Code:
(1)
The provisions of this code shall not
apply to any offense committed prior to
January 1, 1975, notwithstanding the provisions of KRS 446.110.
Such an offense must
be construed and punished according to the
provisions of law existing at the time of
the commission thereof in the same manner as
if this code had not been enacted.
. . . .
(3)
For purposes of this section, an
offense shall
be
deemed
to
have
been
committed prior to January 1, 1975, if any
12
to
take
forth
the
Kentucky
element
of
thereto.25
the
offense
occurred
prior
Based on the plain meaning of this statute, a criminal defendant
who is charged with an offense, any element of which occurred
before January 1, 1975, may not take advantage of KRS 446.110 to
request
sentencing
according
to
a
mitigating
statute
in
the
Kentucky Penal Code adopted subsequent to the commission of his
crime.
Instead, he must be sentenced according to the law in
effect at the time the crime was committed.
Supreme
Court
retroactive.”26
has
stated,
“[t]he
As the Kentucky
Penal
Code
is
not
It is undisputed that the acts for which Payne
was indicted and convicted all occurred in 1971, prior to the
1975 adoption of the Penal Code.
KRS 510.040, however, became
effective on January 1, 1975, with the adoption of the Penal
Code.
Therefore, even if Payne had been informed of KRS 446.110
and the more lenient sentencing provisions of the subsequentlyenacted rape statute in effect at the time of his 1977 trial,
KRS 510.040, it would have made no difference.
The court was
required by KRS 500.040(1) to sentence Payne in accordance with
the sentencing provisions of the rape statute in effect in 1971
when he committed the crime, KRS 435.090.
Payne’s reliance
25
Emphasis added.
26
Cole v. Commonwealth, 553 S.W.2d 468, 472 (1977).
13
upon Commonwealth v. Phon,27 in which the Kentucky Supreme Court
held that the sentence of life without the possibility of parole
could be imposed as a mitigating provision even though it did
not
exist
at
misplaced.
the
time
the
capital
offense
was
committed
is
Phon dealt with crimes which occurred in 1996, after
the adoption of the Penal Code.28
Payne alleges that his counsel
did not inform him of KRS 446.110 and KRS 510.040.
However,
pursuant to KRS 510.040(1), Payne is in the class of persons
specifically excluded from relying on the mitigating provisions
of
KRS
446.110
because
his
adoption of the Penal Code.
crimes
were
committed
before
the
Counsel’s failure to inform Payne
of a partial defense which was not available to him as a matter
of law is far from objectively unreasonable.
Therefore, Payne
has failed to demonstrate any deficiency in his representation
at trial.
Likewise, Payne has not established prejudice, meaning
a reasonable probability that a different result would have been
reached in his case but for his counsel’s failure to inform him
of KRS 446.110 and KRS 510.040.
As noted above, even if Payne
had known of these statutes and had requested to be sentenced
according
to
KRS
510.040,
the
trial
court
would
have
required to deny his request pursuant to KRS 500.040(1).
27
Ky., 17 S.W.3d 106, 108 (2000).
28
Id. at 107.
14
been
Payne
would inevitably have been sentenced for rape under KRS 435.090
and,
hence,
eligible
to
receive
the
life
sentence
which
he
received.
Payne also asserts that the circuit court abused its
discretion in denying his motion for relief under CR 60.02(e)
because,
due
sentence
of
Similarly,
to
changes
life
he
argues
in
social
imprisonment
that
these
norms
has
same
and
the
become
changes
law,
his
inequitable.
entitle
him
to
relief under CR 60.02(f) because they have rendered his sentence
excessive and, hence, cruel and unusual punishment in violation
of the Eight Amendment.
legislature
enacted
Payne focuses on the fact that when the
the
Kentucky
Penal
Code,
it
changed
the
penalty range for rape of a victim twelve years of age or older
who received no serious physical injury to ten to twenty years
imprisonment,
death,
life
imprisonment.
eliminating
imprisonment
the
harsher
without
possible
benefit
of
penalties
parole,
or
of
life
Payne asserts that this change in the maximum
allowable sentence, which occurred more than two years before he
was sentenced, reflects a change in the social norms about what
is an acceptable punishment for the crime he committed.
Payne
also relies in part upon Workman v. Commonwealth,29 in which
Kentucky’s highest court held that life imprisonment for the
29
Ky., 429 S.W.2d 374 (1968).
15
crime of rape is cruel and unusual punishment when applied to
juvenile offenders.30
court
Workman
However, Payne ignores the fact that the
expressly
limited
its
holding
to
juvenile
offenders, stating that life without the possibility of parole
for the crime of rape “remains the law of this jurisdiction and
in our opinion validly so when applied to adults.”31
an adult when he committed the crime at issue.
Payne was
Also, Payne was
not sentenced to life without the possibility of parole but,
rather,
the
lesser
sentence
of
imprisonment.32
life
Payne’s
arguments concerning the alleged inequity or unconstitutionality
of his sentence of life imprisonment for rape fail, however,
because
claim
the
that
Kentucky
the
Supreme
sentence
Court
of
life
has
already
rejected
the
imprisonment
without
the
possibility for parole for rape is cruel and usual punishment or
so
inequitable
appellants
statute
as
sentences.
in
as
that
Payne,
to
case
KRS
relief.33
justify
were
convicted
435.090,
and
Significantly,
under
received
the
same
even
the
rape
harsher
Therefore, we find that Payne’s claims that he is
30
Id. at 377.
31
Id.
32
In fact, Payne was paroled for these crimes in 1983. He lost his
freedom when he was convicted of a felony in California in 1986. He
was incarcerated there until 2000 before returning to Kentucky to
serve the remainder of his life sentence.
33
Land v. Commonwealth, 986 S.W.2d 440, 442 (1999).
16
entitled
to
imposition
relief
of
under
his
CR
sentence
60.02(e)
is
no
because
longer
the
continued
equitable
or,
alternatively, that he is entitled to relief under CR 60.02(f)
because his life imprisonment is excessive and, hence, cruel and
unusual
punishment
in
violation
of
the
Eighth
Amendment
we
affirm
the
are
without merit.
For
Circuit
the
Court’s
foregoing
November
7,
reasons,
2002,
opinion
and
Jefferson
order
denying
Payne’s motion for relief pursuant to CR 60.02.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas R. Payne, Pro se
Central City, Kentucky
Albert B. Chandler III
ATTORNEY GENERAL
Janine Coy Bowden
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
17
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