RENDERED: DECEMBER 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0862-MR
JOHNNY COWHERD APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCY ANNE VANMETER, JUDGE
ACTION NO. 93-CR-00395
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, GOODWINE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Johnny Cowherd, pro se, appeals from an order of the
Fayette Circuit Court which denied his Kentucky Rules of Civil Procedure (CR)
60.02 motion. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
In 1993, Appellant was convicted on two counts of first-degree rape,1
four counts of first-degree sodomy,2 and one count of first-degree criminal
trespass.3 Appellant was sentenced to 104 years in prison.
Over the years, Appellant has filed numerous CR 60.02 motions. In
2020, Appellant filed his sixth, the one on appeal. In that motion, Appellant
argued that, pursuant to CR 60.02(e) and (f), the trial court should void an illegal
sentence. Specifically, he claims that he was wrongly convicted of two counts of
first-degree sodomy. Those counts stated that he committed first-degree sodomy
by forcibly putting his testicles in his victim’s mouth. Appellant argued that this
did not amount to first-degree sodomy, only first-degree sexual abuse.4 The trial
court held that this motion was untimely because it was raised almost twenty-seven
years after his conviction and after he had brought five other CR 60.02 motions.
This appeal followed.
1
Kentucky Revised Statutes (KRS) 510.040.
2
KRS 510.070.
3
KRS 511.060.
4
KRS 510.110.
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ANALYSIS
CR 60.02 states:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable
neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59.02; (c) perjury or falsified
evidence; (d) fraud affecting the proceedings, other than
perjury or falsified evidence; (e) the judgment is void, or
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.
A motion under this rule does not affect the finality of a
judgment or suspend its operation.
As previously stated, Appellant brought his current CR 60.02 motion
pursuant to CR 60.02 (e) and (f). Both of those sections require that a motion be
brought within a reasonable time.
Our standard of review of a trial court’s denial of a
CR 60.02 motion is whether the trial court abused its
discretion. The test for abuse of discretion is whether the
trial court’s decision was “arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.”
...
The decision as to whether to grant or to deny a motion
filed pursuant to the provisions of CR 60.02 lies within
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the sound discretion of the trial court. The rule provides
that a court may grant relief from its final judgment or
order upon various grounds. Moreover, the law favors
the finality of judgments. Therefore, relief may be
granted under CR 60.02 only with extreme caution and
only under the most unusual and compelling
circumstances.
Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011) (citations omitted).
We agree that Appellant’s motion was untimely. See Ray v.
Commonwealth, 633 S.W.2d 71, 73 (Ky. App. 1982), where this Court held that a
twelve-year delay in seeking CR 60.02 relief was untimely. Here, Appellant
waited almost twenty-seven years to raise this issue. It could have been raised in
one of his previous post-conviction motions.
We also believe that Appellant’s argument on appeal fails on the
merits. Appellant was convicted of two counts of first-degree sodomy for forcibly
putting his testicles in his victim’s mouth. Appellant claims that because his penis
did not go into her mouth, he should not have been convicted of sodomy. We
disagree.
KRS 510.070(1)(a) states that, “A person is guilty
of sodomy in the first degree when . . . [h]e engages in
deviate sexual intercourse with another person by
forcible compulsion[.]” As set forth in KRS 510.010(1),
“‘[d]eviate sexual intercourse’ means any act of sexual
gratification involving the sex organs of one person and
the mouth or anus of another[.]”
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Galloway v. Commonwealth, 424 S.W.3d 921, 924 (Ky. 2014). Testicles are part
of the male sex organs. By putting his testicles in the victim’s mouth, he was
engaged in deviate sexual intercourse. Deviate sexual intercourse by force is the
definition of first-degree sodomy; therefore, Appellant was properly convicted of
first-degree sodomy.
CONCLUSION
Based on the foregoing, we affirm the trial court’s denial of
Appellant’s CR 60.02 motion. The motion was not brought within a reasonable
time and Appellant’s criminal actions fit the definition of first-degree sodomy.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Johnny Cowherd, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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