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NOT TO BE PUBLISHED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

**   **  **

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.
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FACTS AND PROCEDURAL HISTORY

In 1993, Appellant was convicted on two counts of first-degree rape,1

four counts of first-degree sodomy,2and 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:

Johnny Cowherd, pro se

West Liberty, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky