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William Virgil Appellant v. Commonwealth of Kentucky Appellee

May 17, 2013

WILLIAM VIRGIL APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE



APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE, JUDGE ACTION NO. 87-CR-00199

The opinion of the court was delivered by: Vanmeter, Judge

RENDERED: MAY 17, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

REVERSING AND REMANDING

BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES.

William Virgil appeals from the Campbell Circuit Court's August 12, 2011, order granting the Commonwealth's motion to reconsider the court's May 20, 2011, order which granted Virgil's motion for DNA testing of certain items of evidence from his criminal trial. In light of a recent amendment to the DNA testing statute, we reverse the August 12, 2011, order and remand with instructions for the trial court to enter an appropriate order.

In September 1988, Virgil was convicted of murder and sentenced to seventy years' imprisonment. In August 2010, he filed a motion for release of evidence from his trial for DNA testing. To support the motion, Virgil cited to Potter v. Eli Lilly & Co., 926 S.W.2d 449, 453 (Ky. 1996) (abrogated on other grounds by Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004)), for the proposition that a "trial court has a duty and a right to determine that its judgments are correct and accurately reflect the truth." The trial court granted Virgil's motion, and in doing so stated:

One of the fundamental responsibilities of any tribunal is to insure its judgment is accurate and reflects the true facts of the case. In the twenty-three years since the

Virgil evidence was subjected to DNA testing, laboratory analysis has advanced dramatically. Samples of blood, semen, hair, etc. that previously could not have been tested at all may now be. Even those samples that were subject to testing in the past may now be analyzed to a much greater degree of accuracy. It is for these reasons, and the circumstantial nature of the Commonwealth's proof at trial, that testing will be permitted.

Thereafter, the Commonwealth filed a motion for reconsideration. As the basis for its motion, the Commonwealth cited to Commonwealth v. Gross, 936 S.W.2d 85 (Ky. 1996), in which the court stated that Potter recognizes a narrow exception to the rules of finality "in the extraordinary circumstances where a fraud has been perpetrated upon the court[]" such as instances of "bad faith conduct, abuse of judicial process, any deception of the court and lack of candor to the court." Id. at 88(citing Potter, 926 S.W.2d at 454). Upon reviewing additional case law on the matter,the trial court noted that no Kentucky cases have extended Potter beyond situations involving fraud or inaccuracies which already exist in the record. The trial court then reversed course and granted the Commonwealth's motion to reconsider, thereby denying Virgil's motion to release and test the DNA evidence. This appeal followed.

On appeal, Virgil argues the trial court erred by granting the Commonwealth's motion to reconsider its order granting post-trial DNA analysis. We agree, albeit on grounds different from those argued by the parties.

We acknowledge the role both Potter and Gross play in elucidating the discretionary authority retained by the trial court to amend a judgment beyond the date of finality expressed under CR 59.05, however, we find the case controlled by the recently amended KRS*fn1 422.285.*fn2 At the time Virgil filed his motion, KRS 422.285 only provided a right to post-trial DNA testing for persons convicted of a capital offense and sentenced to death in the Commonwealth. Since Virgil was not sentenced to death, KRS 422.285 did not provide him with a means to seek DNA analysis of evidence from his trial. However, KRS 422.285 was recently amended*fn3 to now provide any person convicted of a "capital offense, a Class A felony, a Class B felony, or any offense designated a violent offense under KRS 439.3401" the right to seek post-trial DNA testing and analysis of any evidence in possession or control of the Commonwealth involved in the investigation or prosecution that resulted in the conviction. The right is conditioned upon the trial court's finding that:

(a) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been ...


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