RENDERED: MAY 21, 2021; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0045-MR
MICHAEL WAYNE PRIDDY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCH PERRY, JUDGE ACTION NO. 07-CR-003446-01
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: Michael Wayne Priddy (Priddy) appeals from the
Jefferson Circuit Court’s order denying his CR1 60.02 motion seeking to void a
prior order in which the court determined he was subject to the conditional
discharge imposed upon those convicted of enumerated sexually based offenses
1 Kentucky Rule of Civil Procedure. pursuant to KRS2 532.043. Priddy argues that because he entered guilty pleas to
criminal facilitation, which is not an offense enumerated in KRS 532.043, the trial
court erred in sentencing him to serve conditional discharge once he completed the
sentence imposed for the offenses to which he pleaded. We agree with Priddy and
reverse the trial court. We remand for entry of an order consistent with this
Opinion.
FACTS AND PROCEDURAL HISTORY
In 2007, Priddy was charged in a multi-count indictment which
consisted of several sexually based offenses including rape and sodomy, both in
the first degree. Each of the charges was based on a complicity theory. The
charges arose after it was alleged that Priddy, along with another defendant, forced
their way into an apartment in Louisville and held the two occupants, a man and
woman, hostage. They then forced the female victim to engage in sexual acts, both
upon them and upon her partner.
Following several years of litigation, Priddy was offered, and he
accepted, a plea deal by the Commonwealth. In exchange for guilty pleas to
facilitation of rape, two counts of sodomy in the first degree, and kidnapping, as
well as complicity to robbery in the first degree, burglary in the first degree, assault
in the second degree, and wanton endangerment in the first degree, he was
2 Kentucky Revised Statute.
-2- sentenced to a total of fourteen (14) years’ imprisonment. He was required to
serve at least 85% of his sentence pursuant to KRS 439.3401(3)(a). The judgment
and sentence of the Jefferson Circuit Court imposed a five-year period of
conditional discharge pursuant to KRS 532.043. That judgment was entered in
2009.
After completing 85% of his sentence, Priddy, through counsel,
moved for an order pursuant to CR 60.02 voiding the portion of the judgment
which imposed the conditional discharge. Priddy’s argument was that as he had
entered guilty pleas to facilitation, a separate offense not enumerated in KRS
532.043, he was not found guilty of any offense which requires imposition of
conditional discharge. In support, he cited the fact that the Department of
Corrections had determined that he was not subject to KRS 532.043 as he was
convicted of facilitation of rape in the first degree and sodomy in the first degree,
an inchoate offense not enumerated in the statute as a sexually based offense which
would require the imposition of conditional discharge.
The Commonwealth, through the Jefferson Commonwealth’s
Attorney’s Office, responded and argued that the motion was time barred under CR
59.05. It argued the offenses that Priddy “committed” were sex offenses and the
fact that Priddy pleaded guilty to facilitation to commit the offenses was a
distinction of no import.
-3- The trial court issued a written order denying Priddy the relief. In the
order, the court determined that Priddy’s claim was not out of time, falling under
CR 60.02(e) or (f) as having been made “within a reasonable time” of the
“extraordinary circumstances” of his claim. The court found Priddy was
“technically correct that the facilitation offenses do not fall under the literal plain
language of any statute listed under KRS 532.043(1).” The court then went further
to find that although Priddy did not commit the actual crimes of rape in the first
degree or sodomy in the first degree, facilitation of those crimes was sufficient to
place Priddy under KRS Chapter 510 and, therefore, KRS 532.043(1). Priddy
appealed.
STANDARD OF REVIEW AND ANALYSIS
Procedural Question
Priddy filed a motion entitled “Motion to Void Prior Court Order
Requiring Defendant to do a Five (5) Year Period of [Conditional] Discharge Since
He is not a Sex Offender per the KRS nor the Kentucky State Police nor is He on
the Sex Offender Registry.” The original motion, filed some ten years after the
entry of the judgment imposing the conditional discharge, did not cite the rule
under which it was being filed. In his reply to the Commonwealth’s response,
-4- Priddy argued that the motion was made pursuant to CR 60.02(e) and (f).3 The
Commonwealth had argued that the motion was not timely under CR 59.05 and
argued that CR 60.02 grounds did not apply to the matter raised.
The trial court, after considering the written motion, response, and
reply, as well as arguments of counsel, entered a written order and opinion. The
court agreed with Priddy that the motion was timely filed and decided the matter
on the merits.
The Commonwealth did not file a cross-appeal as to the trial court’s
ruling that the motion was timely and appropriately filed pursuant to CR 60.02.
Nonetheless, we will briefly discuss the standard of review regarding motions
brought under CR 60.02. It is within the sound discretion of the trial court whether
to grant or deny relief pursuant to CR 60.02. Thus, we will reverse only upon a
finding of an abuse of that discretion.
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) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)). Therefore, we will affirm the lower court’s decision unless there is a showing of some “flagrant miscarriage of justice.” Gross [v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)].
3 Under CR 60.02, the trial court may relieve a party from a judgment on the following grounds: “(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.”
-5- Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014). We hold the trial court
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RENDERED: MAY 21, 2021; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0045-MR
MICHAEL WAYNE PRIDDY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCH PERRY, JUDGE ACTION NO. 07-CR-003446-01
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: Michael Wayne Priddy (Priddy) appeals from the
Jefferson Circuit Court’s order denying his CR1 60.02 motion seeking to void a
prior order in which the court determined he was subject to the conditional
discharge imposed upon those convicted of enumerated sexually based offenses
1 Kentucky Rule of Civil Procedure. pursuant to KRS2 532.043. Priddy argues that because he entered guilty pleas to
criminal facilitation, which is not an offense enumerated in KRS 532.043, the trial
court erred in sentencing him to serve conditional discharge once he completed the
sentence imposed for the offenses to which he pleaded. We agree with Priddy and
reverse the trial court. We remand for entry of an order consistent with this
Opinion.
FACTS AND PROCEDURAL HISTORY
In 2007, Priddy was charged in a multi-count indictment which
consisted of several sexually based offenses including rape and sodomy, both in
the first degree. Each of the charges was based on a complicity theory. The
charges arose after it was alleged that Priddy, along with another defendant, forced
their way into an apartment in Louisville and held the two occupants, a man and
woman, hostage. They then forced the female victim to engage in sexual acts, both
upon them and upon her partner.
Following several years of litigation, Priddy was offered, and he
accepted, a plea deal by the Commonwealth. In exchange for guilty pleas to
facilitation of rape, two counts of sodomy in the first degree, and kidnapping, as
well as complicity to robbery in the first degree, burglary in the first degree, assault
in the second degree, and wanton endangerment in the first degree, he was
2 Kentucky Revised Statute.
-2- sentenced to a total of fourteen (14) years’ imprisonment. He was required to
serve at least 85% of his sentence pursuant to KRS 439.3401(3)(a). The judgment
and sentence of the Jefferson Circuit Court imposed a five-year period of
conditional discharge pursuant to KRS 532.043. That judgment was entered in
2009.
After completing 85% of his sentence, Priddy, through counsel,
moved for an order pursuant to CR 60.02 voiding the portion of the judgment
which imposed the conditional discharge. Priddy’s argument was that as he had
entered guilty pleas to facilitation, a separate offense not enumerated in KRS
532.043, he was not found guilty of any offense which requires imposition of
conditional discharge. In support, he cited the fact that the Department of
Corrections had determined that he was not subject to KRS 532.043 as he was
convicted of facilitation of rape in the first degree and sodomy in the first degree,
an inchoate offense not enumerated in the statute as a sexually based offense which
would require the imposition of conditional discharge.
The Commonwealth, through the Jefferson Commonwealth’s
Attorney’s Office, responded and argued that the motion was time barred under CR
59.05. It argued the offenses that Priddy “committed” were sex offenses and the
fact that Priddy pleaded guilty to facilitation to commit the offenses was a
distinction of no import.
-3- The trial court issued a written order denying Priddy the relief. In the
order, the court determined that Priddy’s claim was not out of time, falling under
CR 60.02(e) or (f) as having been made “within a reasonable time” of the
“extraordinary circumstances” of his claim. The court found Priddy was
“technically correct that the facilitation offenses do not fall under the literal plain
language of any statute listed under KRS 532.043(1).” The court then went further
to find that although Priddy did not commit the actual crimes of rape in the first
degree or sodomy in the first degree, facilitation of those crimes was sufficient to
place Priddy under KRS Chapter 510 and, therefore, KRS 532.043(1). Priddy
appealed.
STANDARD OF REVIEW AND ANALYSIS
Procedural Question
Priddy filed a motion entitled “Motion to Void Prior Court Order
Requiring Defendant to do a Five (5) Year Period of [Conditional] Discharge Since
He is not a Sex Offender per the KRS nor the Kentucky State Police nor is He on
the Sex Offender Registry.” The original motion, filed some ten years after the
entry of the judgment imposing the conditional discharge, did not cite the rule
under which it was being filed. In his reply to the Commonwealth’s response,
-4- Priddy argued that the motion was made pursuant to CR 60.02(e) and (f).3 The
Commonwealth had argued that the motion was not timely under CR 59.05 and
argued that CR 60.02 grounds did not apply to the matter raised.
The trial court, after considering the written motion, response, and
reply, as well as arguments of counsel, entered a written order and opinion. The
court agreed with Priddy that the motion was timely filed and decided the matter
on the merits.
The Commonwealth did not file a cross-appeal as to the trial court’s
ruling that the motion was timely and appropriately filed pursuant to CR 60.02.
Nonetheless, we will briefly discuss the standard of review regarding motions
brought under CR 60.02. It is within the sound discretion of the trial court whether
to grant or deny relief pursuant to CR 60.02. Thus, we will reverse only upon a
finding of an abuse of that discretion.
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) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)). Therefore, we will affirm the lower court’s decision unless there is a showing of some “flagrant miscarriage of justice.” Gross [v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)].
3 Under CR 60.02, the trial court may relieve a party from a judgment on the following grounds: “(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.”
-5- Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014). We hold the trial court
did not abuse its discretion in finding that the motion was timely filed or that the
claim be considered filed pursuant to CR 60.02(e) or (f).
Pursuant to CR 60.02, there is no specific prescribed time within
which claims made pursuant to CR 60.02(e) or (f) must be filed. Rather, the rule
requires that the “motion shall be made within a reasonable time[.]” Id. We
cannot say that the trial court abused its discretion as Priddy filed the motion
within forty-five (45) days of the issuance of a letter from an employee of the
Department of Corrections indicating that the Department interpreted the law not
to include facilitation as an offense for which one would be considered subject to
conditional discharge under KRS 532.043(1). We therefore move on to the
decision of the trial court on the merits.
The Court Erred in Denying Relief
The question of whether Priddy, having been convicted of facilitation
to commit sexually based offenses, is subject to the conditional discharge
described in KRS 532.043 is a question of law. This Court reviews questions of
law de novo. “Because statutory interpretation involves questions of law, ‘our
review is de novo; and the conclusions reached by the lower courts are entitled to
no deference.’” Adams v. Commonwealth, 599 S.W.3d 752, 754 (Ky. 2019) (citing
Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011)).
-6- The court agreed with Priddy that the motion was properly filed
pursuant to CR 60.02 (e) and (f). However, the trial court found that despite
Priddy’s having pleaded guilty to facilitation of the offenses, “facilitation offenses
do not fall under the literal plain language of any statute listed under KRS
532.043(1).” It therefore concluded the statute should be disregarded and Priddy
should be considered a sex offender and subjected to conditional discharge.
The statute concerned here is very clear.
(1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510, 529.100 involving commercial sexual activity, 530.020, 530.064(1)(a), 531.310, or 531.320 shall be subject to a period of postincarceration supervision following release from:
(a) Incarceration upon expiration of sentence; or
(b) Completion of parole.
(2) The period of postincarceration supervision shall be five (5) years.
KRS 532.043(1)-(2). The General Assembly had every available opportunity to
include the inchoate offense of “facilitation” within the above statute, but it chose
not to do so.
Facilitation is simply not “a felony offense under Chapter 510” or any
of the other sections listed in KRS 532.043. Rather, criminal facilitation is itself a
separate criminal offense defined in KRS 506.080(1)-(2):
-7- (1) A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.
(2) Criminal facilitation is a:
(a) Class D felony when the crime facilitated is a Class A or Class B felony or capital offense;
(b) Class A misdemeanor when the crime facilitated is a Class C or Class D felony;
(c) Class B misdemeanor when the crime facilitated is a misdemeanor.
A person who is convicted of criminal facilitation, no matter what the
underlying offense, is convicted of facilitating the offense of another. Priddy
neither pleaded to nor was convicted of any sexually based offense enumerated in
KRS 532.043(1). It must be remembered that Priddy was offered the opportunity
to plead guilty to facilitation of both first-degree rape and first-degree sodomy by
the Commonwealth. The prosecution, if it intended Priddy be subject to KRS
532.043, had every opportunity to fashion its plea offer so that the statute would
apply, or opt to try Priddy if he refused such offer. The Commonwealth must be
held to the benefit of the bargain which it struck, just as any accused would be.
Facilitation is distinguished from complicity. The mens rea of a
facilitator is less culpable than the party who commits the crime. A facilitator is
-8- aware, or has knowledge, of the intent of the principal to commit the crime, and
assists the commission of the offense by the principal, but has no intention that the
crime be committed. A complicitor, on the other hand, shares the intent to commit
the crime with his accomplice.
The principal distinctions between the two offenses are that a) facilitation requires knowledge that another intends to commit a crime, while complicity requires an intention to promote or facilitate commission of the offense; and b) facilitation requires provision of means or opportunity for commission of the crime, while complicity requires either solicitation, conspiracy, assistance, counsel, etc.
Skinner v. Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993).
Thus, the complicit accused shares the mens rea required of the
offense, e.g., intent, and is therefore guilty of committing the offense as is his co-
complicitor. There is no offense of “criminal complicity” like there is “criminal
facilitation”; the person convicted of complicity is convicted of the underlying
crime and is subject to all the consequences thereof. Thus, a person convicted of
complicity to commit first-degree rape would be subject to KRS 532.043 because
that person would have been found to have the requisite intent and guilty conduct,
and because the offense was not “criminal complicity” but was complicity to
commit first-degree rape.
-9- It was error to deny Priddy the relief requested in his motion. He is
clearly not subject to the conditional discharge described in KRS 532.043. The
trial court erred in denying the post-conviction relief sought.
CONCLUSION
For the foregoing reasons, we reverse the order of the trial court
denying the motion and remand the matter for entry of an order consistent with this
MCNEILL, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
F. Todd Lewis Daniel Cameron Louisville, Kentucky Attorney General of Kentucky
Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
-10-