Opinion
NO. 2011-CA-001820-MR
08-03-2012
THOMAS BERRYMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Thomas Berryman, Pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE JR., JUDGE
ACTION NO. 04-CR-00120
OPINION
AFFIRMING
BEFORE: MOORE, STUMBO AND VANMETER, JUDGES. VANMETER, JUDGE: Thomas Berryman, pro se, appeals from an order of the Clark Circuit Court summarily denying his motion for post-conviction relief. For the following reasons, we affirm.
In November 2004, Berryman was driving on the Mountain Parkway with passenger, Michael Dunn, after picking up a package of illegally obtained Lortabs at a UPS station in Stanton, Kentucky. Berryman was driving ninety-eight miles per hour, more than thirty miles in excess of the speed limit and was distracted by Dunn's counting of the pills in the front seat as he passed other vehicles on the Parkway. Without making an effort to brake or slow down, Berryman ran into the back of a car, sending it into the median and flipping several times. The car was driven by Charles Deaton, who was killed in the accident, while Angela Deaton, a passenger, was severely injured. Toxicology reports performed after the accident showed Berryman tested positive for Xanax. Charles tested positive for Cardizem (diltiazem) and Benadryl (diphenhydramine).
The report did not indicate the amount of Cardizem in the victim's system but showed only trace amounts of Benadryl, less than 0.05MG/L.
Berryman was arrested and charged with wanton murder and first-degree assault. His counsel did not introduce the victim's toxicology report as evidence at trial. Following the jury trial, a judgment was entered in 2006 convicting Berryman of both counts. He received concurrent sentences of thirty years and fifteen years, respectively, for a total of forty-five years. His conviction was affirmed on direct appeal by the Kentucky Supreme Court in 2007. Berryman v. Commonwealth, 237 S.W.3d 175 (Ky. 2007). In 2011, Berryman sought CR 60.02(e) and (f) relief, which the trial court denied. This appeal followed.
Kentucky Rules of Civil Procedure.
Berryman claims that the trial court erred by denying his motion for CR 60.02 relief because if the toxicology report had been introduced, the trial outcome may have been different. We disagree.
Our standard of review for the denial of a CR 60.02 motion is whether the trial court abused its discretion. Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Under this standard, the trial court's decision will be affirmed unless we find a "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
In Kentucky, an organized and complete structure is in place for attacking a final criminal judgment. Id. at 856. A defendant must first directly appeal the judgment, stating every ground of error he or his counsel should reasonably know. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). If unsuccessful on direct appeal, a defendant is required to avail himself of RCr 11.42 for '"all grounds for holding the sentence invalid of which the [defendant] has knowledge.'" Gross at 856 (quoting RCr 11.42(3)). Only after availing himself of RCr 11.42 may a defendant fall back on CR 60.02 in seeking relief. Id. In other words, CR 60.02 provides for relief not otherwise available through direct appeal or under RCr 11.42. Id.
Kentucky Rules of Criminal Procedure.
Berryman raises his claim under 60.02(f) on the basis that he alleges new studies have shown Benadryl to impair the central nervous system. Specifically, he claims the toxicology report indicating Charles had Benadryl in his system at the time of the crash was relevant and could have changed the outcome of the case. He maintains his attorney was ineffective for failing to introduce the reports at trial and failing to research Benadryl's effects on the central nervous system prior to trial.
Berryman's claims regarding the deficiencies in his attorney's preparation for and performance at trial are ineffective assistance of counsel claims that needed to be made in a motion pursuant to RCr 11.42. However, Berryman failed to avail himself of RCr 11.42 as no motion was filed "within three years after the judgment [became] final." RCr 11.42(10). Thus, Berryman's failure to bring this ineffective assistance of counsel claim within the three-year limitation provided in the rule results in a waiver of his right to bring the claim and the claim is now time-barred.
Since he is time-barred from raising an RCr 11.42 motion, Berryman attempts to avail himself of CR 60.02(e) and (f) on the basis that new reports revealing the impairing effects of Benadryl indicate that the toxicology reports, if introduced at trial, would have changed the outcome. CR 60.02(f) allows a court to relieve a party from a final judgment for extraordinary circumstances.
CR 60.02(e) provides relief from judgments that are void, or have been satisfied, released, or discharged, or prior judgments that have been reversed or otherwise vacated, or are no longer equitable to have prospective application. Berryman mentions 60.02(e) as a provision for relief but cites nothing in his brief or attached memorandum that would support relief under such provision so the trial court summarily denying that motion was appropriate.
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To obtain a hearing on a CR 60.02(f) motion, the burden of proof falls on the movant to "affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Gross, 648 S.W.2d at 856. "To justify relief, the movant must specifically present facts which render the 'original trial tantamount to none at all.'" Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky.App. 2009) (quoting Brown, 932 S.W.2d at 361).
Berryman alleges that new studies concerning the impairing effects of Benadryl should justify vacating the judgment because the presence of this drug could have impaired the victim's ability to drive. Yet, Berryman failed to state any specific facts or findings of the new studies that would explain how the victim's driving played any role in the accident and how this trace amount of Benadryl would have resulted in a different outcome. Even though much leeway is afforded to pro se litigants, their pleadings must still state a sufficient factual basis for a claim to be found plausible on its face. See Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983) (explaining that pro se litigants' pleadings are not held to the same standard as legal counsel's pleadings); Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky.App. 2009) (holding that pro se litigants' pleadings must still conform to Kentucky Rules of Civil Procedure).
Berryman's mere speculation and broad assertions about the possibility of new evidence do not meet this standard and satisfy the burden required to prove extraordinary circumstances. See Jennings v. Commonwealth, 380 S.W.2d 284, 286 (Ky. 1964) ("The motion must, however, state facts in support. To require hearing on the basis of vaporous allegations would visit on the trial courts an intolerable imposition which we cannot encourage or condone[ ]"). The record reinforces that the victim's driving was not an issue in the accident and the Kentucky Supreme Court held that Berryman's conduct alone was sufficient to find him guilty of wanton murder. Berryman, 237 S.W.3d at 178-79. Berryman's excessive speed and the presence of Xanax in his system coupled with his inattentiveness to the road and his failure to apply the brakes before hitting the victim's car are not mitigated by new studies regarding possible side effects of Benadryl.
Thus, even if we assume the new studies regarding the effects of Benadryl on the central nervous system are legitimate, such evidence neither diminishes the responsibility that Berryman's actions played in the crash, nor provides evidence of fault on behalf of the victim, and does not justify CR 60.02(f) relief. See Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (holding that the inclusion of inadmissible evidence was not an extreme circumstance justifying relief under CR 60.02(f) when there was otherwise ample circumstantial evidence in the record upon which the jury could have based its verdict); Commonwealth v. Spaulding, 991 S.W.2d 651, 657 (Ky. 1999) (holding that conviction based on perjured testimony does not justify CR 60.02(f) relief when even absent that testimony, the weight of the evidence was clearly sufficient to support defendant's conviction). As a result, we fail to appreciate how these new studies could have had a reasonable probability to change the outcome of his conviction. Thus, we find no abuse of discretion on part of the trial court by summarily denying his CR 60.02(f) motion.
For the foregoing reasons, the order of the Clark Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas Berryman, Pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky