Opinion
NO. 2013-CA-001651-MR
12-11-2015
JUAN CARLOS GONZALES-BARBOZA APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda A. Smith Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 94-CR-00133 OPINION
REVERSING AND REMANDING BEFORE: J. LAMBERT, STUMBO AND TAYLOR, JUDGES. TAYLOR, JUDGE: Juan Carlos Gonzales-Barboza (Barboza) brings this appeal from an August 28, 2013, Order of the Henderson Circuit Court denying sundry postconviction motions for relief. We reverse and remand.
On August 2, 1994, Barboza was indicted upon the offense of first-degree rape. Some eight days later, on August 10, 1994, Barboza was assigned a public defender, and, thereafter, Barboza eventually filed a motion for an interpreter as Barboza possessed a very limited understanding of the English language. On September 23, 1994, Barboza entered a guilty plea to the amended charge of third-degree rape and was sentenced to five-years' imprisonment by judgment entered October 10, 1994. As Barboza pleaded guilty, DNA testing of semen recovered from the victim's rape kit was halted and not completed. Barboza eventually served out his sentence of imprisonment and was released on August 29, 1997. He was deported by the U.S. Immigration and Customs Enforcement on October 28, 1997.
The record reveals that semen was recovered from the victim shortly after the rape.
In June 2005, Barboza returned to the United States without permission and was arrested. He was indicted upon the Federal offense of illegal reentry following deportation after being convicted of a felony in violation of 8 U.S.C. § 1326(a) and (b)(2). After entering a guilty plea, he was sentenced to 41 to 51 months in Federal prison.
On July 23, 2013, the Kentucky Innocence Project filed a motion under Kentucky Rules of Criminal Procedure (RCr) 11.42, RCr 10.02, RCr 10.06 and Kentucky Rules of Civil Procedure (CR) 60.02 seeking to vacate the October 10, 1994, judgment and for a trial by jury. In support thereof, the Kentucky Innocence Project pointed out that a comparison of the DNA from the semen recovered from the victim's rape kit and from Barboza was never completed. The Kentucky Innocence Project caused a complete DNA analysis to be performed. The analysis revealed that the DNA recovered from the victim and from Barboza did not match. The Kentucky Innocence Project argued that this new DNA test result was pivotal evidence considering that the victim stated that she had not engaged in "consensual intercourse in the previous 72 hours" of the rape. In fact, the Kentucky Innocence Project claimed that the new DNA test result amounted to evidence of Barboza's actual innocence of the offence of rape.
By order entered August 23, 2013, the circuit court denied Barboza's motion by concluding:
Second, the Commonwealth argues that relief under RCr 11.42 is inappropriate because Mr. Gonzalez-Barboza is no longer in custody under the sentence imposed under this indictment, nor is he on probation, parole or conditional discharge. RCr 11.42(1). His sentence under this case is completely served, and relief under RCr 11.42 is unavailable even if this conviction is being used to enhance other penalties. Wilson v. Commonwealth, 403 S.W.2d 710 (Ky. 1966). The Court agrees with the Commonwealth that relief under RCr 11.42 does not appear to be available for Mr. Gonzalez-Barboza for this reason. However, again there is no such requirement under RCr 10.02 and CR 60.02.
Third, the Commonwealth argues that the motion is untimely under all three cited rules, as it has now been over eighteen years since Mr. Gonzalez-Barboza's conviction became final. A motion for relief under RCr 11.42 is to be made within three years after the judgment becomes final, but there is an exception to this rule when the facts upon which the movant's claim is predicated were unknown to him and could not have been ascertained by the exercise of due diligence. RCr 11.42(10). Under RCr 10.06, a motion for a new trial should be made within five days after the return of the verdict, or within one year after the entry of judgment if the grounds for relief is newly discovered evidence.
However, the Court may allow a motion at a later time if there is good cause. RCr 10.06(1); Bedingfield v. Commonwealth, 260 S.W.3d 805, 810-811 (Ky. 2008). Parts (a) - (c) of CR 60.02 have a one year time limitation. There is no time limit under CR 60.02(d) - (f), but a motion must be made "within a reasonable time." Ray v. Commonwealth, 633 S.W.2d 71 (Ky. App. 1982). However, the Court may consider a CR 60.02 motion at any time if there are "extraordinary circumstances" justifying relief. Bedingfield at 811.
Thus review of all three rules shows that there are exceptions to their time limitations if good cause is shown. In this case, Mr. Gonzales-Barboza argues that the good cause for revisiting his conviction is the recent DNA test results, which indicate that his DNA was not found on the victim and that there was other semen found on the victim, impeaching her statements that she had not had sexual intercourse with anyone but her attacker.
In Bedingfield, the Supreme Court found that such new DNA was good cause to review a conviction. However, the court specifically noted that "the DNA technology which gave rise to this newly discovered evidence did not exist in the time frame when [a motion] could have been timely brought under CR 60.02(b)." Id., 811. That does not appear to be the case here. Upon a review of the record it appears that the trial court ordered DNA testing in this case, but it was never completed, presumably because of the defendant's guilty plea. Before filing the present motion, counsel had to find a laboratory proficient in the old technology in order to get the DNA samples tested. So this is not an instance where the technology did not exist during the time frame where Mr. Gonzalez-Barboza could have timely filed the motion. The record shows that this technology did in fact exist before his guilty plea and conviction. If the defendant could have found this DNA evidence with due diligence during the three years to file an 11.42 motion or even a year after that, the Court cannot conclude that the present motion, filed over eighteen years after the defendant's conviction, was made within a reasonable
time or that there is a good cause to make an exception to the rule.Order at 2-5 (citation omitted). The Kentucky Innocence Project timely filed a notice of appeal from the order denying Barboza's motion pursuant to RCr 11.42, RCr 10.02, RCr 10.06, and CR 60.02.
In conclusion, the Court finds that the movant cannot have relief under RCr 11.42 because his sentence under this conviction is complete. Wilson[, 403 S.W.2d 710]. Further, the Court finds that this motion is untimely under RCr 11.42, RCr 10.06, and CR 60.02 and that, upon a review of the record, this case does not present a good cause or extraordinary circumstances which would justify an extension of the time limitations under those rules.
In his brief, Barboza contends that the circuit court erred by denying his motion under RCr 11.42, RCr 10.02, RCr 10.06, and CR 60.02 to vacate the October 10, 1994, Judgment of imprisonment upon his guilty plea. Barboza viewed the DNA test result as newly discovered evidence that could have reasonably affected his decision to plead guilty and ultimately the outcome of the proceedings. Based upon the new DNA test result, Barboza asserts his actual innocence to the offense of rape and seeks relief accordingly.
The conviction of an innocent person offends both social norms of justice and the laws embodied in our Constitution. One of the fundamental premises of the United States Constitution was the establishment and guarantee of justice for every citizen. Clearly, the conviction of an innocent person represents a serious and egregious violation of this constitutional guarantee. When a person previously convicted of a crime, whether by jury trial or guilty plea, can demonstrate his or her actual innocence, it is constitutionally incumbent upon the state to provide a post-conviction procedure to vacate the judgment and grant a new trial.
In particular, the conviction of an innocent person would violate the Eighth Amendment, Fifth Amendment and Fourteenth Amendment of the United States Constitution and Section 2 and Section 17 of the Kentucky Constitution. --------
In this Commonwealth, the proper post-conviction procedure to demonstrate actual innocence based upon newly discovered evidence is found in CR 60.02(b) or (f) and RCr 10.02. Considering the constitutional implications involved in a claim of actual innocence, a post-conviction procedure must be provided. Under the particular circumstances of this case, we believe CR 60.02 provides the more appropriate avenue of relief.
As more than one year has lapsed since entry of final judgment sentencing Barboza, CR 60.02(b) relief is unavailable. Therefore, Barboza must proceed under CR 60.02(f). See Foley v. Com., 425 S.W.3d 880 (Ky. 2014).
Pursuant to CR 60.02, the "court may, upon such terms as are just, relieve a party . . . from its final judgment . . . upon . . . (f) any other reason of an extraordinary nature justifying relief." To prevail under a claim of newly discovered evidence per CR 60.02(f), a claimant must demonstrate that the newly discovered evidence is "of such decisive value or force that it would, with reasonable certainty, have changed the result." Jennings v. Com., 380 S.W.2d 284, 285-86 (Ky. 1964) (quoting Ferguson v. Com., 373 S.W.2d 729, 730 Ky. 1963)). And, "newly discovered evidence is evidence that could not have been obtained at the time of the trial through the exercise of reasonable diligence." Foley, 425 S.W.3d at 887 (quoting Com. v. Harris, 250 S.W.3d 637, 642 (Ky. 2008)).
In the case sub judice, it is simply beyond question that the DNA test results would, with reasonable certainty, have changed the outcome of Barboza's plea process. The more troublesome issue is whether the DNA test results could have been obtained at the time of the guilty plea through the exercise of reasonable diligence. It appears that the DNA evidence was at the Kentucky Crime Laboratory for analysis, but the analysis was never fully completed because Barboza entered a guilty plea. The Kentucky Innocence Project subsequently caused the DNA from the victim's rape kit and from Barboza to finally be tested in February 2013. As previously set forth, the DNA test results showed that Barboza's DNA did not match the DNA retrieved from the victim's rape kit. Based upon the DNA test results, Barboza asserts his actual innocence to the offense of rape. It is clear that this DNA test result is new evidence and only obtained in February 2013 by the Kentucky Innocence Project. Barboza clearly did not possess the wherewithal to either obtain the DNA evidence or cause such evidence to be properly tested. Considering these unique facts, we conclude that the DNA test results constitute newly discovered evidence under CR 60.02(f). Hence, we are of the opinion that Barboza has demonstrated entitlement to relief under CR 60.02(f).
We view Barboza's remaining contentions as moot.
In sum, we reverse the August 28, 2013, order denying Barboza's motion under CR 60.02(f) and vacate the October 10, 1994, Judgment upon guilty plea. We remand for a jury trial upon the indicted offense of rape.
For the foregoing reasons, the Order of the Henderson Circuit Court is reversed and remanded for proceedings consistent with this Opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Linda A. Smith
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky