Adam Anthony Barker v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 18, 2022
• Docket: 2021 CA 000367
• Status: Unknown

Opinion

RENDERED: AUGUST 19, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0367-MR

ADAM ANTHONY BARKER APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCH PERRY, JUDGE ACTION NOS. 04-CR-003560, 05-CR-000239, AND 05-CR-001958

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND K. THOMPSON, JUDGES.

CETRULO, JUDGE: Adam Anthony Barker appeals from the Jefferson Circuit

Court order denying his motion for relief pursuant to Kentucky Rule of Civil

Procedure (“CR”) 60.02(d) and (f). Factual and Procedural History

Appellant Adam Anthony Barker (“Barker”) was charged in three

separate indictments in December 2004 and January 2005, with one of the

indictments stemming from an altercation on October 23, 2004. During that

altercation, Barker sprayed chemical mace in several individuals’ faces and

stabbed three individuals. One of the victims died, and several others were injured.

That night, Barker was accompanied by several friends, four of whom were later

indicted for murder and assault.

In March 2006, in Jefferson Circuit Court, Barker was tried by a jury

and convicted of one count of wanton murder, two counts of first-degree assault,

five counts of second-degree assault, and tampering with physical evidence.

Although Barker had been indicted with his four friends who were present during

the altercation, he was tried alone, and the others testified at his trial. The friends

were initially Barker’s co-defendants, but the prosecution had entered into an

agreement with them to sever their charges and to wait to proceed with their trial

until the conclusion of Barker’s trial. At trial, Barker claimed that he was acting in

defense of his friends during the altercation. However, Barker’s friends testified

that they did not believe they were at risk of death or serious injury and that

Barker’s actions were not necessary.

-2- After his conviction, Barker entered into a sentencing agreement with

the prosecution to resolve his remaining charges. Per the agreement, Barker was

sentenced to 40 years in prison, and he waived his right to appeal all issues

regarding the jury trial. After he was convicted and had entered into the sentencing

agreement, but before he was sentenced, the prosecution moved to dismiss the

charges against Barker’s four friends.

In April 2009, Barker, pro se, filed a motion to vacate judgment

pursuant to Kentucky Rule of Criminal Procedure (“RCr”) 11.42, alleging

ineffective assistance of counsel. The Jefferson Circuit Court denied the motion,

and this Court affirmed, finding that Barker did not overcome the presumption that

his counsel provided a reasonable trial strategy. See Barker v. Commonwealth, No.

2009-CA-001079-MR, 2011 WL 1327141 (Ky. App. 2011). In November 2011,

Barker, pro se, filed a CR 60.02(f) motion seeking to vacate one of his second

degree assault convictions due to extraordinary circumstances justifying relief.

The circuit court denied the motion, and this Court affirmed on appeal, finding that

Barker failed to show the presence of extraordinary circumstances or manifest

injustice which would warrant additional review under CR 60.02(f). See Barker v.

Commonwealth, No. 2012-CA-001657-MR, 2014 WL 1004628 (Ky. App. 2014).

In September 2020, approximately 14 years after he was convicted,

and nine years after his last motion, Barker, pro se, filed a motion under CR

-3- 60.02(d) and (f). In that motion, he claimed prosecutorial and judicial misconduct

based on the Commonwealth’s agreement to try his friends separately and the

eventual dismissal of their charges. Barker alleges that the Commonwealth’s

decisions resulted in his friends being referred to as “defendants” in front of the

jury rather than “victims,” which hindered his strategy of arguing that he acted in

defense of his friends. Barker also alleges that the circuit court engaged in

misconduct by conspiring with the Commonwealth’s prosecution.

Barker claims that he waited to bring his second CR 60.02 motion

because of “duress and fear” that prosecutors would go back on their immunity

deals and prosecute his friends. The circuit court denied Barker’s motion, finding

that Barker had “already had a bite at CR 60.02” and that he presented “zero

evidence of misconduct that . . . would entitle him to the type of special,

extraordinary relief that a second [CR] 60.02 motion would provide.” This appeal

followed.

Standard of Review

This Court reviews a trial court’s orders on CR 60.02 motions for

abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000)

(citation omitted). “The test for abuse of discretion is whether the trial judge’s

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

-4- principles.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation

omitted).

Analysis

Our Kentucky Supreme Court has held there is a “high standard for

granting a CR 60.02 motion,” because relief under CR 60.02 is meant to be

“special” and “extraordinary.” Barnett v. Commonwealth, 979 S.W.2d 98, 101-02

(Ky. 1998). Specifically, to succeed on his CR 60.02 motion under subsection (d),

Barker must show that fraud other than perjury or falsified evidence affected the

proceedings. To succeed on his CR 60.02 motion under subsection (f), Barker

must show any other reason of an extraordinary nature that justifies relief.

“[B]ecause of the desirability of according finality to judgments, CR 60.02(f) must

be invoked only with extreme caution, and only under most unusual

circumstances.” Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App.

2004) (citation omitted). Additionally, a CR 60.02 motion must be “made within a

reasonable time.” CR 60.02.

Barker claims he is entitled to relief because (1) the prosecution

allegedly conspired against him, and the presiding judge took part in that

conspiracy; and (2) the Commonwealth’s closing argument used improper modes

-5- of argument1 that rendered his trial fundamentally unfair. Additionally, Barker

argues the circuit court erred when it denied his second CR 60.02 motion without

holding an evidentiary hearing.

As a threshold matter, this Court finds that the circuit court did not err

in denying Barker an evidentiary hearing on his motion. In Gross v.

Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983), our Supreme Court held,

“[b]efore the movant is entitled to an evidentiary hearing, he must affirmatively

allege facts which, if true, justify vacating the judgment and further allege special

circumstances that justify CR 60.02 relief.” Barker has not alleged any facts

which, if true, justify vacating the judgment. Barker only provides the “fact” that

the prosecution severed his friends’ charges, and then dismissed their charges once

he was convicted. He speculates that this indicates a conspiracy between the

Commonwealth, his friends, and the court, but he does not allege any fact which, if

true, would support his claim. Barker also does not allege special circumstances

that would justify CR 60.02 relief, other than his unsupported claims of conspiracy.

Therefore, this Court finds that the circuit court did not err in denying Barker an

evidentiary hearing.

1 Specifically, Barker claims the prosecution referred to the victims as hardworking young men but referred to Barker and his friends as people who enjoyed hurting people. Barker claims the prosecution’s remarks were calculated to appeal to resentment the jury has towards the social problems of class bias and income inequality.

-6- Barker next claims that his CR 60.02 motion should be granted

because of prosecutorial and judicial misconduct. First, Barker’s CR 60.02 motion

fails because it was not made within a reasonable time. Barker filed this motion 14

years after his conviction, and nine years after his last motion. However, Barker

admits that he knew enough about the alleged conspiracy to raise his claims of

prosecutorial and judicial misconduct before he was sentenced in 2006. Barker

claims that “duress and fear” prevented him from raising this misconduct issue at

an earlier time. Specifically, Barker alleges that his defense counsel relayed a

threat to him that his friends would be prosecuted if he raised these claims. Barker

contends that he brought this motion now because he believed that he had waited

long enough to prohibit the Commonwealth from prosecuting his friends.

Although he claims that he wanted to protect his friends, Barker has

only had contact with one of the four men since 2006 and does not provide any

specific details about the extent of their relationship. None of the men have come

forward to support Barker’s claim of misconduct. Barker fails to provide evidence

that his defense counsel received a threat from the prosecution and does not

explain why Barker’s defense counsel would encourage him to protect his friends

over himself.

Our Supreme Court has held that “CR 60.02 is not intended merely as

an additional opportunity to relitigate the same issues which could reasonably have

-7- been presented by direct appeal or an RCr 11.42 proceeding.” Foley, 425 S.W.3d

at 884 (citation omitted). Barker’s “duress and fear” excuse, under these

circumstances, does not justify waiting 14 years to bring these claims, nor does it

excuse his failure to present these claims in either his earlier RCr 11.42 or the first

CR 60.02 motion.

This Court has held a delay of four years after entering a guilty plea to

be untimely in Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007).2

Our Supreme Court has also found a five year delay in filing a CR 60.02 motion to

be untimely, stating “[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.” Gross, 648 S.W.2d at 858. In Barker’s case, the Jefferson

Circuit Court exercised its discretion to determine 14 years after his conviction was

not within a reasonable time under the requirements of CR 60.02.

Our Supreme Court evaluated a 14-year delay in Baze v.

Commonwealth, 276 S.W.3d 761 (Ky. 2008). In Baze, the defendant believed the

circuit court had improperly transferred his trial to another county. Id. at 766. The

Kentucky Supreme Court held that any challenge could have, and should have,

2 Defendant had pled guilty and served his sentence without attempting to obtain post-conviction relief. Although Defendant argued that he should have been informed that he would be deported after serving his sentence, this Court did not accept the lack of knowledge as an excuse for the delay.

-8- been raised in a direct appeal or any of defendant’s other motions for post-

conviction relief. Id. at 768. Barker’s case is similar, as he waited 14 years to

raise the claim of conspiracy, but claimed he knew of the conspiracy at the time of

his trial. For these reasons, this Court finds that the circuit court did not err when it

found Barker’s CR 60.02 motion was procedurally barred because it was not

“made within a reasonable time.”

I. CR 60.02(d)

Barker’s CR 60.02(d) motion fails because he does not show that

fraud other than perjury or falsified evidence affected the proceedings. Barker

argues the Commonwealth fraudulently put forward throughout the proceedings

that the agreements it had entered into with his friends granted them separate trials,

not immunity. However, once Barker was convicted and had entered into a

sentencing agreement with the Commonwealth, they moved to dismiss all charges

against his friends. As mentioned, Barker’s trial strategy was to claim he acted in

defense of his friends. Barker claims the Commonwealth’s fraud, and the court’s

complicity, prevented him from fully presenting his theory of the case.

This Court has held CR 60.02(d) requires extrinsic fraud. Rasnick v.

Rasnick, 982 S.W.2d 218, 219 (Ky. App. 1998). Extrinsic fraud is typically

construed to mean truly egregious conduct, such as bribery of a judge or member

of the jury, fabrication of evidence, or counsel improperly attempting to influence

-9- the court. Id. at 219-20 (citing Wise v. Nirider, 261 Mont. 310, 862 P.2d 1128

(1993)). Our Kentucky Supreme Court has expanded the definition of extrinsic

fraud, stating that while finality of judgment is preferred, “it cannot take

precedence over the fair and equitable resolution of disputes.” Terwilliger v.

Terwilliger, 64 S.W.3d 816, 819 (Ky. 2002).

Barker may claim that the Commonwealth, the court, and his friends

engaged in fraud, but he provides no affirmative evidence that such a conspiracy

took place. The Commonwealth dismissed his friends’ charges once Barker, the

perpetrator of the stabbing, was convicted. Other than listing the actual events of

the trial, Barker provides no facts that would warrant relief under CR 60.02(d).

II. CR 60.02(f)

Barker’s CR 60.02(f) motion fails because he does not meet the

standards of “special” and “extraordinary” relief the subsection requires. Barker

alleges that the Commonwealth made a secret deal with his friends that prevented

him from using his “protection of others” defense, as planned. However, he

provides no evidence to support his claims. Barker uses two arguments to contend

that a conspiracy exists, but the arguments provide no proof of misconduct. One

argument states that the charges against Barker’s friends were dismissed because

they testified against Barker, and the other states that the charges were dismissed

after the friends agreed to testify. However, the fact that the friends testified

-10- against Barker, the perpetrator during the altercation, does not indicate that a secret

deal took place.

This Court has held that a defendant’s potential immigration problem3

is not a reason of extraordinary nature that justifies relief under CR 60.02(f).

Bustamonte, 140 S.W.3d at 583. In Bustamonte, the defendant had the opportunity

to make his CR 60.02(f) claim during the sentencing phase of his circuit court

proceeding, but his counsel failed to advise him of the consequences of his plea on

his immigration status. Id. In Barker’s case, a conspiracy that he cannot support

with facts does not satisfy the “extraordinary” requirement of CR 60.02(f).

Barker also claims that the trial judge “played along” with the

prosecution’s conspiracy, thereby engaging in judicial misconduct. However,

again, Barker has not provided any evidence indicating that the trial judge

conspired with the Commonwealth.

Finally, Barker maintains the trial prosecutor used specific words

during his/her closing argument to inflame the jury and tried to “create [a] class

bias that created prejudicial error[.]” However, Barker waived his right to pursue

all appeals regarding the jury trial in order to make the sentencing deal with the

3 The Court did not explicitly state what the potential immigration issue would be, only that it would be affected by the length of the defendant’s sentence.

-11- prosecution. Barker knew of the prosecutor’s closing argument at the time he

agreed to the deal; therefore, he waived his right to challenge it now.

Conclusion

The Jefferson Circuit Court did not abuse its discretion when it denied

Barker’s CR 60.02 motion. The circuit court did not abuse its discretion when it

determined that Barker presented no evidence that would entitle him to “special”

or “extraordinary” relief under his second CR 60.02 motion. The circuit court did

not err in denying Barker an evidentiary hearing on his CR 60.02 motion, because

he did not affirmatively allege facts which, if true, would justify vacating the

judgment. Barker failed to satisfy the “within a reasonable time” requirement and

presented no evidence of the alleged conspiracy. For all these reasons, we

AFFIRM the judgment of the Jefferson Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Adam Anthony Barker, pro se Daniel Cameron Sandy Hook, Kentucky Attorney General of Kentucky

Jeffrey A. Cross Frankfort, Kentucky

-12-