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Court of Appeals of Kentucky.


NO. 2012–CA–000229–MR

Decided: May 31, 2013

BEFORE:  CAPERTON, COMBS AND DIXON, JUDGES. BRIEFS FOR APPELLANT:  M. Brooke Buchanan Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky



James Darwin Bumphis appeals an order of the Warren Circuit Court denying his motion to vacate his conviction pursuant to CR 60.02(e)-(f).  Appellant argues he was entitled to relief because, after his direct appeal was final, that decision was specifically overruled by the Kentucky Supreme Court in Hobson v. Commonwealth, 306 S.W.3d 478 (Ky.2010).   As a result, Appellant contends his conviction must be vacated because it is contrary to the law established by Hobson.   After careful review, we affirm.

Following a jury trial, Appellant was convicted of second-degree burglary and being a persistent felony offender (first-degree).   Pursuant to the jury's recommendation, he was sentenced to thirteen years' imprisonment.   Appellant appealed his conviction arguing, in part, that the trial court should have granted a directed verdict on the robbery charge because physical force was initiated by the victim.   On May 11, 2007, this Court, relying on Williams v. Commonwealth, 639 S.W.2d 786 (Ky.App.1982), rendered a published opinion affirming Appellant's conviction.  Bumphis v. Commonwealth, 235 S.W.3d 562 (Ky.App.2007).   The opinion set forth the following relevant details:

On July 12, 2005, Steve Miljan was eating lunch in the phone room located in the back of the Honey Baked Ham store that he owned.   Returning to his lunch after visiting the rest room, Miljan noticed that the back door of the store was open and saw a stranger, Bumphis, standing in the store's spare cooler.   Thinking Bumphis was a delivery driver, Miljan looked outside for a delivery van.   When he didn't see one, however, Miljan closed the door and turned back toward the cooler.   Miljan immediately saw his wife's and another employee's purses on the floor near Bumphis.   At this same moment, he also saw Bumphis in the process of stuffing a wallet down the front of his pants.   Seeing Miljan looking at him, Bumphis took the wallet out of his pants and threw it down.   Miljan then locked the back door and stood in front of it.

Bumphis approached Miljan stating that he wanted to buy a soft drink crate.   When Miljan accused him of stealing, Bumphis denied that he took anything.   Miljan responded by telling him not to leave and called out to his employees to call the police.   Bumphis then told Miljan that he was going to leave and started for the door.   At that point a scuffle ensued.   After a few moments, Miljan managed to restrain Bumphis in a bear hug and pin him against a wall while Bumphis repeatedly struck Miljan across the back with his hands.   The scuffle did not end until Miljan received assistance from his wife and another employee who were able to restrain Bumphis's arms until the police arrived.

Following their arrival, the police questioned Bumphis about the wallets and purses in the cooler.   Bumphis eventually admitted that he intended to steal the wallets, but contended that the physical altercation was solely the result of Miljan's use of force to prevent him from leaving the store.   The police arrested Bumphis, who was ultimately convicted of one count of second-degree robbery and one count of first-degree persistent felony offender.   This appeal followed.

Bumphis argues that the trial court erred by not granting his directed verdict motion at trial because the physical confrontation was instigated by Miljan.   Conversely, Bumphis contends that he did not use or threaten to use any physical force, a necessary prerequisite to a conviction for robbery.   In fact, Kentucky Revised Statute (KRS) 515.030(1) provides that ‘[a] person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.’   It is not clear from the record exactly who ‘struck the first blow’ in the scuffle between Miljan and Bumphis.   While it appears that the confrontation originated from simultaneous attempts by Bumphis to leave the store and Miljan to prevent him from doing so, our decision herein is not affected by who made first contact.

In Mack v. Commonwealth, 136 S.W.3d 434 (Ky.2004), our Supreme Court held that a defendant's use of physical force while attempting to escape following a theft was sufficient to sustain a conviction for first-degree robbery.   In so holding, the Supreme Court noted with approval the decision in Williams v. Commonwealth, 639 S.W.2d 786 (Ky.App.1982), wherein this Court affirmed a defendant's conviction for first-degree robbery after he used physical force while attempting to escape following a theft.   In so holding, we stated that

the fair import of the term ‘in the course of committing theft’ ․ include[s] the time, place and circumstances surrounding a theft or attempted theft.   This encompasses the escape stage.   We believe the fair import of the meaning of ‘escape stage’ ‘to be all steps or events in the process of escape which would fall within the active or continuous pursuit of the criminal actor.’

Id. at 788.   Thus, it is clear that the exercise of force by someone attempting to escape after the commission (or attempted commission) of a theft is sufficient to justify a robbery charge.   However, these decisions do not specifically address the question as to whether a robbery charge is appropriate when the exercise of force is in response to resistance initiated by the victim to prevent the suspect's escape.   Though we find no Kentucky decisions squarely addressing this issue, we believe that it is.

As discussed above, Kentucky law provides that the use (or threat of use) of force by a suspect while attempting to escape following the commission of a theft is sufficient to support elevation of the charge to robbery.   In Mack, supra, the victim was injured by the man who had stolen her purse after she chased the defendant to his car in an attempt to retrieve the purse.   In Williams, supra, the defendant, upon being discovered in a laundry by an employee, grabbed a handful of clothes and ran.   The laundry employee gave chase in an attempt to capture the defendant,Double but retreated when the defendant drew a knife.   In each case, because the defendant used or threatened force when his escape was impeded, the robbery charge was upheld.   In neither case did the victim exert physical force against the defendant.   However, had the circumstances been slightly different in Williams (e.g., suspect from laundry theft had no knife) it is certainly foreseeable that the victim might have attempted to physically subdue the thief.

In the present matter, Miljan, like the victims in Mack and Williams, attempted to prevent Bumphis's escape.   Rather than choosing to accept his fate after being discovered, Bumphis instead opted to force his way through the door blocked by Miljan.   However, because Bumphis lacked the means to prevent him from doing otherwise, Miljan physically stopped Bumphis from fleeing.   Under these circumstances, it would be unjust to reverse Bumphis's conviction for robbery while sustaining a conviction in a case where the defendant successfully prevented resistance through striking first or drawing a weapon.   Thus, while no Kentucky decision has directly addressed this question, we hold that a charge of robbery is established when a defendant, in the course of committing a theft, exercises or threatens physical force during an attempted escape in an effort to prevent or otherwise overcome resistance exerted by the victim.

Id. at 563–65.   Thereafter, the Kentucky Supreme Court denied discretionary review, and Appellant's conviction became final on October 24, 2007.

In March 2010, the Supreme Court rendered Hobson v. Commonwealth, 306 S.W.3d 478 (Ky.2010), which specifically overruled the Williams and Bumphis cases.  Hobson states, in relevant part:

Thus, like Williams, Bumphis holds that the ‘force with intent to accomplish a theft’ element may be satisfied even if the force is used after the defendant has abandoned his plans to commit a theft.   Unlike Mack, but similar to Williams, Bumphis's only use of force occurred after he had abandoned his attempt to steal property, and his only apparent objective was escape.

We agree with Williams, Mack, and Bumphis to the extent they recognize that an act of theft extends through the thief's getaway attempt, or escape.   This interpretation is consistent with the Model Penal Code's conception of robbery, the Official Commentary to KRS 515.020, and the plain language of the statute.   Thus, if a defendant commits or attempts to commit a theft (obtains property of another with the intent to deprive the owner, KRS 513.010 et seq.) without using or threatening to use force against another, [ ] and does so for the first time only in the escape phase, while still intending to accomplish the theft, the elements of robbery are met, as we held in Mack. The escape is still ‘in the course of committing theft.’   But, we are not at liberty to divorce that phrase from the remainder of the sentence.   The statute could not be clearer on that point.   As previously noted, it reads as follows:

(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft․

KRS 515.020;  KRS 515.030.  (Emphasis added) If the literal language of a statute is clear and unambiguous, it must be given effect as written.   Bailey v. Commonwealth, 70 S.W.3d 414, 416 (Ky.2002).

If, at the time a defendant first uses or threatens force, he has abandoned his intention to accomplish a theft, the plain language of the robbery statutes constrains us to conclude that the elements of robbery are not met.   The language admits to no interpretation other than that the force (or threat of force) be contemporaneous with an intent to accomplish the theft.   It follows that once the intent to accomplish a theft is abandoned, any force used would not be for the purpose of accomplishing a theft, and, in the usual case would be for the unrelated purpose of effecting an escape.   Under such circumstances, the use of force to accomplish a theft element is simply not met.   In Williams, and consequently in Bumphis, the Court of Appeals misconstrued the penal code commentary and misinterpreted the language of the robbery statute, and are accordingly, overruled.  Mack represents a proper application of the law.

Id. at 482–83.

In July 2010, Appellant filed a pro se motion to vacate his conviction pursuant to CR 60.02(e)-(f), arguing that Hobson should apply retroactively to his case.   The trial court appointed counsel to assist Appellant, and a supplemental CR 60.02 motion was filed.   In January 2012, the court rendered an order denying Appellant's motion, and this appeal followed.

We review the lower court's denial of a CR 60.02 motion under the abuse of discretion standard.  White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000).   Accordingly, we will not disturb the court's judgment unless it “was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”  Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).   In Leonard v. Commonwealth, 279 S.W.3d 151, 160 (Ky.2009), the Kentucky Supreme Court explained that “[q]uestions of retroactivity usually involve a new rule that would be applied in the course of a direct appeal, ․ which is part of the reason such rules are not to be retroactively applied in the context of collateral attacks.”   The Court further stated:

Finally, Appellant claims that this Court's own procedural rules allow him to avoid the general rule against retroactive application of a decision.   He first argues that the purpose of CR 60.02, under which the motion giving rise to this appeal was filed, is to allow a court to correct a mistake.   Thus, he claims barring retroactive application would undermine the purpose and language of the rule.   This is incorrect.   As Appellant correctly notes, CR 60.02 replaced the common law writ of coram nobis.   That writ, however, was aimed at correcting factual errors, not legal errors.  Barnett v. Commonwealth, 979 S.W.2d 98 (Ky.1998).   Appellant is not seeking remediation of a factual error;  rather, he is seeking to correct the legal decision that his ineffective assistance claims were procedurally barred, a decision that was correct under the case law in existence at the time.

Id. at 161.

Although Appellant's conviction was final in 2007, he asserts that the trial court was obligated to apply Hobson retroactively to vacate his robbery conviction.   According to Appellant, retroactively applying Hobson is permissible because Hobson did not announce a new rule;  rather, Hobson set forth the “correct” interpretation of the statute and merely clarified the prior erroneous interpretation.   Appellant emphasizes that in Hobson, supra, the Supreme Court stated, “In Williams, and consequently in Bumphis, the Court of Appeals misconstrued the penal code commentary and misinterpreted the language of the robbery statute[.]”  Hobson, 306 S.W.3d at 483.   Appellant also asserts it is inequitable and a violation of his due process rights for his conviction to stand because the facts of his case do not establish second-degree robbery pursuant to Hobson.   He points out that, in Leonard, the Court acknowledged, “A change in the law simply is not grounds for CR 60.02 relief except in ‘aggravated cases where there are strong equities.’ ”  Id. at 162, quoting Reed v. Reed, 484 S.W.2d 844, 847 (Ky.1972).

Although Hobson criticized this Court for the decisions in Williams and Bumphis, the Supreme Court denied discretionary review in both of those cases.   Decided in 1982, Williams was the prevailing interpretation of the robbery statute until Hobson was rendered in 2010. Double We are satisfied that Hobson enunciated a new rule by expressly overruling Williams and therefore changing twenty-eight years of statutory interpretation.   Since Appellant's conviction was final when Hobson was decided, we cannot apply Hobson retroactively.  Leonard, 279 S.W.3d at 160.   We further conclude this is not an inequitable result.   Appellant was convicted pursuant to the controlling precedent at the time, and he now seeks to re-open his conviction under CR 60.02(e)-(f).  Like the movant in Leonard, Appellant “is not seeking remediation of a factual error;  rather, he is seeking to correct the legal decision ․ that was correct under the case law in existence at the time.”  Id. In Campbell v. Commonwealth, 316 S.W.3d 315 (Ky.App.2009), this Court explained:

The proscription against applying new rules retroactively once a judgment is final on direct review makes sense, given the interest in finality of judgments.   The retroactive application of Peyton is, thus, proscribed.   To permit otherwise would wholly vitiate the finality of judgments in that each change in the law would allow or require relitigation of the facts and law of every case.

Id. at 320 (internal citation and quotation marks omitted).   After careful review, we conclude the trial court did not abuse its discretion by denying Appellant's motion to vacate his conviction pursuant to CR 60.02.

For the reasons stated herein, we affirm the order of the Warren Circuit Court.