CAPERTON, JUDGE.
The Appellant, Tommy Allen Sparks, appeals the April 7, 2011, order of the Franklin Circuit Court denying his untimely pro se motion to vacate his judgment of conviction and sentence pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
In March of 1993, Sparks was indicted for the offenses of murder, first-degree burglary, kidnapping, and violation of a protective order. The indictment alleged that the offenses occurred on or about February 28, 1993, when he forcibly entered the apartment of his former girlfriend,
Sparks stated that prior to this incident, after the on-again, off-again relationship with Harper had taken yet another tumultuous turn, he decided to purchase a gun on February 27, 1993, with the intention of killing himself in front of Harper. Sparks stated that he went to Harper's apartment afterwards and left a note for her as she was not home. Sparks testified that at that time, he was not acquainted with the victim, Paul Feck, or the fact that Harper was with him that evening. Harper and Feck returned to the home later that evening and discovered the note.
According to Harper, after she and Feck went to bed, she heard someone beating on the door and discovered that it was Sparks. Harper testified that Sparks then broke down the door, put a gun to her head and cursed her. She further testified that Sparks realized someone else was in the apartment and went down the hallway where he shot through the bedroom door. Harper testified that she then heard Feck begging, followed by more shots. Sparks confirmed that after entering the apartment, he knew someone was with Harper, asked where "he" was located, and then found him in the bedroom closet and shot him. Sparks then ordered Harper to get dressed and accompany him to his sister's home. He then asked for the police to be called and the crime reported.
Sparks hired a psychologist, Dr. Schilling, to examine him for purposes of trial and to serve as an expert witness to testify in detail about Sparks's history, his relationship with his former girlfriend, the state of his mental health, the fact that he allegedly suffered from borderline personality disorder, and that the actions of his former girlfriend had allegedly driven him to take the actions that led to the death of Feck and the kidnapping that followed. Dr. Schilling was allowed to testify in detail as to Sparks's actions and the fact that they were allegedly the result of extreme emotional disturbance, though he was not allowed to use that specific legal phrase in his testimony.
Sparks's trial was held in April of 1994. At the conclusion, Sparks was found guilty of murder, first-degree burglary, and first-degree unlawful imprisonment. The jury then recommended a sentence of life imprisonment on the murder charge, with a recommendation of fifteen years on the burglary charge and one year on the unlawful imprisonment charge. The sentences with a fixed number of years were ordered to run concurrently with each other, but consecutively to the life sentence.
Sparks appealed and his case was remanded to the trial court for resentencing because the Kentucky Supreme Court had ruled in Bedell v. Commonwealth, 870 S.W.2d 779 (Ky. 1994), that a term of years cannot be ordered to run consecutively to the life sentence. Pursuant to the opinion remanding, the Franklin Circuit Court entered an order amending sentence on January 16, 1997, ordering all of Sparks's sentences to run concurrently to the life sentence.
Thereafter, in October of 1996, Sparks filed a post-conviction motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and CR 60.02. That motion was denied in February of 1997. Sparks then filed another motion to vacate in July of 1998. No further actions were apparently taken with respect to that motion. Approximately thirteen years later, on March 14, 2011, Sparks filed a motion to vacate, set aside, or correct his sentence pursuant to CR 60.02(e) and (f), along with an accompanying memorandum.
Therein, Sparks alleged that caselaw had changed, and that pursuant to Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997), an expert witness is now allowed to testify on matters relating to the "ultimate issue," herein that claim related to whether Sparks may have committed the crime while suffering from extreme emotional disturbance. Sparks claimed that this change in the law was ground for reversal of his convictions and sentences because his expert witness was not allowed to speak the specific words "extreme emotional disturbance" when testifying at his trial. The Commonwealth filed a response, and the court below entered an order on April 7, 2011, denying the motion. Sparks now appeals to this Court.
On appeal, Sparks makes only one argument; namely, that the trial court erred to his substantial prejudice and denied him due process of law by overruling his CR 60.02 motion without an evidentiary hearing. Specifically, in light of Stringer, Sparks asserts that the trial court's ruling failed to directly address the expert witness's inability to testify with specificity that it was his belief that Sparks suffered from extreme emotional disturbance at the time of the crime.
In making this argument, Sparks notes that in denying his motion, the trial court erroneously held that he could have raised the issue via direct appeal. Sparks asserts that in making this finding, the trial court failed to realize that the relief requested was unavailable at the time of his direct appeal and also unavailable at the time his original RCr 11.42 and CR 60.02 motions were filed. Sparks now argues that in light of Dr. Schilling's expert opinion, Sparks was, in fact, suffering from extreme emotional disturbance at the time that he shot and killed the victim, and in light of his inability to testify to that fact in front of the jury, using that specific phrase, a new trial should have been ordered or, at a minimum, an evidentiary hearing should have been held before the trial court decided the issue.
Sparks asserts that had Dr. Schilling been allowed to use the specific phrase "extreme emotional disturbance," there is a reasonable probability that Sparks would have been convicted of first-degree manslaughter instead of murder. While acknowledging that Dr. Schilling was allowed to testify using jargon familiar to mental health professionals about manifestations of borderline personality disorder, impulse control, and the like, it was not equivalent to being able to actually use the phrase "extreme emotional disturbance."
Sparks argues that although Dr. Schilling was allowed to testify concerning mental disorders, extreme emotional disturbance is different from a mental illness. Sparks asserts that "extreme emotional disturbance" was a phrase that the jurors would have readily recognized via the jury instructions, unlike the other terms used by Dr. Shilling. Sparks argues that the fact the jury was given an extreme emotional disturbance instruction was rendered meaningless in the absence of the expert witness being able to give his opinion that Sparks was suffering from extreme emotional disturbance at the time of the shooting.
Sparks asserts that this specific issue has never been previously raised or litigated, and could not have been previously raised in a direct appeal because of the state of the law at that time. He notes that it was not until the Stringer opinion was issued that a witness could have testified to the "ultimate issue," and that it was not until 1999 that the "ultimate issue" logic was made retroactive.
In response, the Commonwealth argues that Sparks's motion was not brought within a reasonable time, as is required by CR 60.02(e) and (f). The Commonwealth argues that Sparks's most recent CR 60.02 motion was brought approximately seventeen years after his conviction on the underlying charges, nearly thirteen years after the last of the filings of his previous post-conviction motions, and twelve years after the changes in the law which serves as the basis for his motion sub judice. The Commonwealth argues that in light of the protracted period of time which has passed, the court was well within its discretion to deny Sparks's motion.
Secondly, the Commonwealth asserts that Sparks's CR 60.02 motion sub judice is a successive collateral attack appeal, and should be procedurally barred. Despite acknowledging that the law changed after Sparks's case had culminated and his direct appeal resolved, the Commonwealth nevertheless argues that Sparks should have raised the issue in his previous direct appeal despite the fact that there was no caselaw to support the claim. The Commonwealth argues that Sparks's claim is not based upon new facts that have just recently come to light, but instead upon the facts that have remained unchanged from the time of his trial and that his failure to raise this issue in an earlier proceeding should preclude him from raising it now.
Alternatively, the Commonwealth argues that Sparks's claim should fail on the merits and that the court was correct to deny his motion without an evidentiary hearing. It argues that the record supports the finding that the jury did in fact hear from Sparks's expert witness at trial, and received in-depth information concerning Sparks, his history and mental condition, and how those things could have impacted him at the time of the crimes. The Commonwealth thus asserts that although Dr. Schiller was not permitted to use the actual words, "extreme emotional disturbance," there was extensive testimony on Sparks's behalf relating to this defense even if the exact words were not said.
Moreover, the Commonwealth states that the jury received an instruction on extreme emotional disturbance and nevertheless chose to convict him of murder. Further, it argues that the trial court correctly applied the law relating to the testimony of witnesses as it stood at the time of Sparks's trial. Accordingly, the Commonwealth asserts that the trial court did not abuse its discretion in denying Sparks's CR 60.02 motion, or in denying an evidentiary hearing. Having reviewed the record, the arguments of the parties, and the applicable law, we are compelled to affirm.
In addressing the arguments of the parties, we note that this Court reviews the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). "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).
Prior to addressing the substance of the arguments before us, we briefly address the arguments of the Commonwealth concerning the timeliness of Sparks's motion. The Commonwealth argues that the motion was not brought within a "reasonable time" as required by CR 60.02. In making this argument, the Commonwealth notes that Sparks waited twelve years after the latest change in caselaw applicable to this claim before filing the instant motion. We note that our Kentucky Supreme Court has previously held that for good cause shown, time limitations may be waived. Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008).
In the case sub judice, particularly as Sparks is acting pro se, and certainly not being consistently updated on the state of the law in the Commonwealth, we do not find it unreasonable that he filed his motion upon the discovery of caselaw which he believed would support it. Further, we are not persuaded by the Commonwealth's argument that the instant appeal is a successive collateral attack that should be procedurally barred.
The Commonwealth correctly notes that CR 60.02 exists for relief that is not available by direct appeal or via RCr 11.42. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). The Commonwealth argues that because Sparks previously filed a direct appeal, in which he did not argue that Dr. Schiller should have been able to testify to the ultimate issue, he cannot do so now.
We decline to preclude Sparks from raising this issue now because he failed to raise the issue previously, in light of the fact that at the time he made his initial direct appeal the caselaw did not exist to support the argument that he is now attempting to make, albeit one that is ultimately unsuccessful. While the Commonwealth correctly notes that the facts of Sparks's case have not changed since the time of his trial, the law of this Commonwealth has changed. Accordingly, we believe that the appeal was both proper and timely filed, and we believe a review of the arguments on their merits is appropriate.
In reviewing this issue, we acknowledge that Sparks correctly notes that in Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997), our Kentucky Supreme Court squarely addressed the issue of expert testimony concerning the ultimate issue, stating:
Stringer at 891-92.
Subsequently, in Alexander v. Commonwealth, 5 S.W.3d 104 (Ky. 1999), our Kentucky Supreme Court held that, "The admissibility of evidence is governed by the Kentucky Rules of Evidence and is procedural in nature. Thus, the Stringer decision resulted in a procedural rather than substantive change in the law. As such, the Court of Appeals erred in determining that Stringer does not have retroactive application." In his arguments to this Court, Sparks relied upon the holding in Alexander to assert that the Stringer decision should apply retroactively to his case. We disagree, and for this reason, determine that Sparks's appeal must ultimately fail.
While Sparks is correct in asserting that Alexander made the holding of Stringer retroactive, such was the case only with respect to direct appeals. The matter sub judice, however, is a post-conviction collateral attack pursuant to CR 60.02 on a judgment which achieved finality many years ago. Accordingly, we find that the holding of Alexander concerning the retroactivity of Stringer is inapplicable to the instant claim.
Indeed, since the holding in Alexander, our Kentucky Supreme Court adopted the position of our United States Supreme Court as set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). As our Kentucky Supreme Court held in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), there is a general proscription against applying new rules retroactively once a judgment is final on direct review.
Ultimately, this Court is of the opinion that the holding of Stringer simply does not satisfy the criteria set forth in either Teague or Leonard for retroactivity insofar as collateral attacks are concerned. We find that the restriction concerning the "ultimate issue" testimony which was in place at the time of Sparks's trial did not violate any constitutional right or deny a fundamentally fair trial. Thus, we ultimately conclude that any such limitation was not prejudicial to a fair trial so as to justify granting a belated CR 60.02 motion and, accordingly, we believe that the court below properly denied same.
Wherefore, for the foregoing reasons, we hereby affirm the April 7, 2011, order of the Franklin Circuit Court overruling Sparks's CR 60.02 motion.
ALL CONCUR.
