Opinion
NO. 2011-CA-000008-MR
02-15-2013
KEVIN RAY CONRAD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kevin Conrad, pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLY, JUDGE
ACTION NO. 05-CR-00399
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Kevin Ray Conrad appeals from an Order of the Hopkins Circuit Court denying his motion for Kentucky Rule of Civil Procedure (CR) 60.02 relief. Conrad, pro se, contends that the trial court erred in failing to fully investigate his mental state at the time of the offense, and erred in accepting his guilty plea tendered against the advice of counsel. We conclude that this alleged error should have been raised, if at all, by way of direct appeal or collateral attack under Kentucky Rule of Criminal Procedure (RCr) 11.42. We find no error, and affirm the Judgment on appeal.
On October 25, 2005, the Hopkins County Grand Jury indicted Conrad on one count each of Murder and first-degree Assault. The indictment arose from an incident occurring on August 24, 2005, during which Conrad shot and killed his apparent girlfriend, and then shot himself. The matter proceeded in Hopkins Circuit Court, whereupon on February 28, 2006, the court rendered an Agreed Order causing Conrad to undergo a psychiatric evaluation at the Kentucky Correctional Psychiatric Center for the limited purpose of determining whether Conrad was competent to stand trial. On August 18, 2006, and based on the testimony and report of Dr. Russell Williams, Hopkins Circuit Court Judge Hon. Susan W. McClure found that Conrad was legally competent to stand trial.
Thereafter, Conrad entered a plea of guilty on September 25, 2006. The plea was made against the advice of counsel, with counsel stating during the plea colloquy that he believed Conrad had a strong defense of Extreme Emotional Distress ("EED"). Counsel further stated that he was prepared to engage an expert witness and present an EED defense at trial. After the plea colloquy, the court accepted Conrad's guilty plea, and Conrad was later sentenced to 20 years in prison.
Conrad did not prosecute an appeal from the Judgment of Conviction, and did not pursue RCr 11.42 relief from judgment. About four years later, Conrad filed a pro se CR 60.02 motion in Hopkins Circuit Court. As a basis for the motion, Conrad argued that the trial court erred in accepting his guilty plea in light of his potential EED defense. The motion was denied by way of orders rendered on September 27, 2010, and December 3, 2010, and this appeal followed.
The latter order clarified and restated the former.
Conrad now argues that the circuit court erred in denying his motion for CR 60.02 relief. In his written pro se argument, Conrad notes that prior to accepting his guilty plea, the trial court sought to determine if he was competent to stand trial. Conrad contends that in so doing, the court improperly failed to address his mental state at the time of the offense. This argument is subsumed in Conrad's broader contention and primary argument on appeal that the circuit court improperly accepted his guilty plea when his trial counsel was prepared to present an EED defense. Conrad seeks an order reversing the Judgment, or alternatively remanding the matter for reconsideration of the CR 60.02 motion.
The proper procedure for a defendant aggrieved by a judgment in a criminal case is to directly appeal that judgment, stating every basis of error which he is or should be reasonably aware of at the time of appeal. Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983); Centers v. Commonwealth, 799 S.W.2d 51 (Ky. App. 1990). Additionally, Gross holds that thereafter a defendant is required to avail himself of RCr 11.42 as to any ground of which he is aware, or should have been aware, during the period in which this remedy is available to him. Gross, at 857. And finally, RCr 11.42 forecloses the defendant from raising any issues under CR 60.02 which could have been presented at the RCr 11.42 proceeding. Id.
As the Commonwealth properly notes, the issue of the voluntariness of Conrad's guilty plea, which appears to be the focus of his instant argument, should have been raised, if at all, by way of direct appeal and/or RCr 11.42. We find persuasive the Commonwealth's contention that this issue is procedurally barred. Arguendo, even if this matter were properly before the circuit court, the finding of legal competence to stand trial would foreclose any argument that Conrad was not competent to enter a guilty plea against the advice of counsel. Additionally, the record demonstrates that even though the plea was made against the advice of counsel, it was a voluntary and intelligent choice among the alternative courses of action available to Conrad. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). We find no error.
For the foregoing reasons, we affirm the orders of the Hopkins Circuit Court denying Conrad's motion for CR 60.02 relief from judgment.
ALL CONCUR BRIEFS FOR APPELLANT: Kevin Conrad, pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky