RENDERED: MARCH 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0635-MR
CHRISTOPHER GRIBBINS APPELLANT
APPEAL FROM MARION CIRCUIT COURT
v. HONORABLE DAN KELLY, JUDGE
ACTION NO. 12-CR-00128
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
GOODWINE, JUDGE: Christopher Gribbins appeals from the April 6, 2020 and
April 13, 2020 orders of the Marion Circuit Court denying his motion for relief
under CR1 60.02, CR 60.03, and the Eighth Amendment of the United States
Constitution. We affirm.
1
Kentucky Rules of Civil Procedure.
BACKGROUND
On July 17, 2014, a jury found Gribbins guilty of wanton murder.2
The trial court subsequently imposed a sentence of twenty years’ imprisonment.
The Kentucky Supreme Court affirmed Gribbins’ conviction on direct appeal.
Gribbins v. Commonwealth, 483 S.W.3d 370 (Ky. 2016). He then filed a motion
under RCr3 11.42 alleging ineffective assistance of counsel which remains pending
before the trial court.
On April 3, 2020, Gribbins filed a motion under CR 60.02(f), CR
60.03, and the Eighth Amendment requesting relief from the remainder of his
sentence due to his risk of contracting SARS-CoV-2 (“COVID-19”). Gribbins
alleges he is at increased risk of contracting COVID-19 due to his incarceration
and is in a high-risk category for complications from the virus because he is
currently being treated for cancer and is immunocompromised. On April 6, 2020,
the trial court denied the motion on all grounds. Upon Gribbins’ motion for
additional findings of fact, the trial court found, “[t]he court is not persuaded that
the defendant, on the facts alleged, is exposed to a greater risk of exposure to the
Covid 19 virus in the penitentiary [sic] than in the public in general.” Record
(“R”) at 372. This appeal followed.
2
Kentucky Revised Statutes (KRS) 507.020(1)(b), a capital offense.
3
Kentucky Rules of Criminal Procedure.
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STANDARD OF REVIEW
This Court reviews orders on CR 60.02 motions for abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation
omitted). A trial court’s denial of a CR 60.03 motion is also reviewed for abuse of
discretion. Rogers Group, Inc. v. Masterson, 175 SW.3d 630, 636 (Ky. App.
2005) (citations omitted). “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation
omitted).
Questions of constitutionality are reviewed de novo. Phon v.
Commonwealth, 545 S.W.3d 284, 290 (Ky. 2018) (citation omitted).
ANALYSIS
On appeal, Gribbins argues: (1) the trial court abused its discretion in
denying his motion under CR 60.02(f); (2) the trial court abused its discretion in
denying his motion under CR 60.03; (3) he is entitled to relief under the Eighth
Amendment; and (4) he is entitled to an evidentiary hearing on his motion.
First, Gribbins is not entitled to relief under CR 60.02(f). A trial court
may relieve a party from a final judgment upon a showing of a “reason of an
extraordinary nature justifying relief.” CR 60.02(f). This rule “functions to
address significant defects in the trial proceedings.” Ramsey v. Commonwealth,
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453 S.W.3d 738, 739 (Ky. App. 2014) (citing Wine v. Commonwealth, 699 S.W.2d
752, 754 (Ky. App. 1985)). To succeed on a claim under CR 60.02(f), “the movant
must specifically present facts which render the original trial tantamount to none at
all.” Foley, 425 S.W.3d at 885-86 (citation and internal quotation marks omitted).
This Court has determined “results of incarceration” are not proper
considerations under CR 60.02(f). Wine, 699 S.W.2d at 754. Later, in Ramsey,
453 S.W.3d at 739, this Court held physical ailments are not trial defects and do
not qualify as “claims of an extraordinary nature” entitling someone to relief under
CR 60.02(f). We are similarly persuaded that Gribbins’ risk of contracting
COVID-19 is not a proper consideration for relief under CR 60.02(f) because it
does not relate to trial proceedings. Therefore, the trial court did not abuse its
discretion in denying his CR 60.02 motion.
Next, Gribbins’ claim under CR 60.03 must fail.
Rule 60.02 shall not limit the power of any court to
entertain an independent action to relieve a person from a
judgment, order or proceeding on appropriate equitable
grounds. Relief shall not be granted in an independent
action if the ground of relief sought has been denied in a
proceeding by motion under Rule 60.02, or would be
barred because not brought in time under the provisions
of that rule.
CR 60.03. “This rule is intended as an equitable form of relief when no other
avenue exists.” Meece v. Commonwealth, 529 S.W.3d 281, 295 (Ky. 2017).
Because Gribbins’ argument on the same grounds fails under CR 60.02(f), it
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follows that he is also not entitled to relief under CR 60.03. See Foley, 425 S.W.3d
at 888.
Furthermore, Gribbins has failed to establish all necessary elements
for equitable relief under CR 60.03.
Generally, claimants seeking equitable relief through
independent actions must meet three requirements.
Claimants must (1) show that they have no other
available or adequate remedy; (2) demonstrate that
movants’ own fault, neglect, or carelessness did not
create the situation for which they seek equitable relief;
and (3) establish a recognized ground –such as fraud,
accident, or mistake –for the equitable relief.
Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005), abrogated on other
grounds by Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018). We agree with
the parties that Gribbins did not cause the COVID-19 pandemic.
Nonetheless, Gribbins cannot succeed under CR 60.03 because he has
failed to establish a recognized ground for equitable relief. While Gribbins is
correct that the rule does not limit potential grounds for equitable relief to fraud,
accident, or mistake, it does require that a movant establish a recognized ground
for relief. Gribbins makes only conclusory statements that he has met the
requirements set out in Bowling without identifying the recognized ground for
relief under which his claim is made. Such statements are an insufficient basis for
this Court to grant relief. Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018).
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As such, the trial court did not abuse its discretion by denying Gribbins’ motion
under CR 60.03.
Furthermore, Gribbins is not entitled to relief under the Eighth
Amendment. The Eighth Amendment is violated “when the State by the
affirmative exercise of its power so restrains an individual’s liberty that it renders
him unable to care for himself, and at the same time fails to provide for his basic
human needs –e.g., food, clothing, shelter, medical care, and reasonable safety.”
Griffith v. Franklin County, Ky., 975 F.3d 554, 566 (6th Cir. 2020) (citations
omitted). “[T]he treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.”
Helling v. McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 12 L. Ed. 2d 22 (1993).
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain . . . proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976) (citation omitted). The Eighth Amendment prohibits deliberate
indifference to prison conditions which may result in future harm to prisoners’
health. Helling, 509 U.S. at 33, 113 S. Ct. 2475.
However, “prison officials who actually knew of a substantial risk to
inmate health or safety may be found free from liability if they responded
reasonably to the risk, even if the harm ultimately was not averted.” Farmer v.
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Brennan, 511 U.S. 825, 844, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Sixth
Circuit recently considered an Eighth Amendment claim relating to COVID-19 in
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). Therein, the Sixth Circuit held,
despite an outbreak ultimately occurring at the prison in question, the Bureau of
Prisons had not been deliberately indifferent to the prisoners’ health and safety
because it responded reasonably to the risks posed by COVID-19 by implementing
a plan to reduce those risks. Id. at 840-41.
COVID-19 poses a significant threat to those living in confinement,
and there is an increased risk of complications for individuals with certain health
conditions, including cancer. However, Gribbins has not proven the prison has
been deliberately indifferent to his condition or the risks posed by COVID-19, nor
that he has been deprived of any necessary medical care. Instead, he admits the
Department of Corrections (“DOC”) has instituted protocols for responding to the
virus and the prison has complied with those measures. He further admits the
DOC has continued to transport him for cancer treatment. Gribbins’ subjective
belief that the DOC’s protocols are inadequate is insufficient to sustain an Eighth
Amendment claim. The trial court did not err in denying his motion.
Finally, we find no merit in Gribbins’ argument that he was entitled to
an evidentiary hearing. “Before the movant is entitled to an evidentiary hearing, he
must affirmatively allege facts which, if true, justify vacating the judgment and
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further allege special circumstances that justify CR 60.02 relief.” Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). As Gribbins alleges no such
facts or special circumstances, the trial court did not err in denying his request for
an evidentiary hearing.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Joshua R. Bolus Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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