Adam Anthony Barker v. Commonwealth of Kentucky ( 2022 )

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NOT TO BE PUBLISHED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.
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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
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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
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