Opinion
NO. 2019-CA-000380-MR
01-24-2020
JAMES SIMONS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: James Simons, Pro Se Pineville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 12-CR-00099 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES. JONES, JUDGE: James Simons appeals the denial of his CR 60.02 motion, denying in part his motion to vacate or set aside his conviction and amend his sentence. Following review of the record and the applicable law, we affirm the Franklin Circuit Court.
Kentucky Rules of Civil Procedure.
I. BACKGROUND
James Simons, along with his co-defendants, Joshua Hammond and David Bruce, killed Charles Monroe following a robbery on or about May 5, 2012. The facts surrounding Monroe's killing were summarized by the Kentucky Supreme Court as part of its direct review of Hammond's conviction as follows:
[Joshua Hammond], Travis Wright, and James Simons traveled together in [Hammond's] pickup truck to Lexington where they bought twenty Percocet pills for recreational use. After making the purchase, the men drove to Georgetown where [Hammond] devised a plan to rob Charles Monroe, a drug dealer who lived in Frankfort. Wright declined to participate in the plan, and in his stead, David Bruce joined [Hammond] and Simons to carry out the robbery.
[Hammond], who was described by Bruce and Simons as the leader of the group, called Monroe to set up a meeting. The trio set out for Frankfort in [Hammond's] pickup truck well-equipped for the planned robbery, having with them a telescoping police baton, brass knuckles, a knife, and a BB pistol. It appears that during this time, [Hammond] consumed an unknown quantity of the pills.
Monroe met the trio outside his apartment building. [Hammond] and Monroe then went into the apartment for a brief time. When they returned, Monroe got into [Hammond's] truck and all four men drove to a nearby Walmart. Monroe and [Hammond] entered the store while Bruce and Simons waited in the truck. [Hammond] and Monroe returned to the truck, but instead of heading back toward Monroe's home, [Hammond] drove onto the I-64 entrance ramp. When Monroe protested that they were going the wrong way, [Hammond] stopped the truck on the side of the ramp and yelled at Monroe, "I'm
tired of you fucking with us." [Hammond] demanded that Monroe hand over his money and drugs. While still seated in the truck, [Hammond] began hitting Monroe on the head with the police baton.Hammond v. Commonwealth, 504 S.W.3d 44, 48-49 (Ky. 2016).
Monroe grabbed a knife that lay in the truck and attempted to defend himself with it. He lunged toward Bruce with the knife, but it was deflected and cut Simons in the leg. [Hammond] exited the truck and went around it to the passenger door. With either Bruce or Simons, or both of them then holding Monroe in a chokehold, [Hammond] struck Monroe on the head with the baton and began removing his clothes in a search for drugs. After pulling Monroe from the truck and removing two Percocet pills and $160.00 from his pockets, [Hammond] left him lying on the side of the road wearing only his underwear.
A by-passer witnessing the event called the police. As the perpetrators drove away, they threw Monroe's cell phone and clothing out of the truck. Later, at Simons' apartment they split up their meager take. [Hammond] cleaned out his truck to remove any remaining evidence of the event.
Monroe died as a result of the assault. The medical examiner, Dr. John Hunsaker, testified that the cause of Monroe's death was asphyxiation, most likely a result of the chokehold. Dr. Hunsaker could not rule out the possibility that the fatal throat injury could have been caused by the blow of a baton, but there was no evidence to indicate that such a blow had been struck.
Eventually, the police apprehended Simons, Hammond and Bruce. Simons was indicted on charges of murder, first-degree robbery, first-degree assault, tampering with physical evidence, and being a second-degree persistent felony offender. He was appointed counsel from the Department for Public Advocacy. The trial court ordered that the defendants be tried separately. In preparation for Simons's trial, his counsel filed various motions, including funding for investigation and expert witnesses, production of discovery and continuance of the trial to provide time for investigation/preparation of a defense.
Bruce entered guilty pleas and agreed to cooperate with the investigation and prosecution of the crime and provide truthful and competent testimony at any trial or hearing. Hammond's case was tried before a jury.
Simons's case proceeded to trial. On the second day of trial, however, Simons reached a plea agreement with the Commonwealth. Pursuant to the agreement, the Commonwealth offered to amend the murder charge to first-degree manslaughter and recommend twenty years' imprisonment; to recommend twenty years for the first-degree robbery and first-degree assault charges to be run concurrent with the manslaughter sentence; and to recommend five years on the tampering charge to run consecutive to the twenty-year sentences for a total of twenty-five years. The Commonwealth agreed to dismiss the persistent felony charge. As part of the agreement, Simons agreed to cooperate in the continued investigation and prosecution of Hammond and to provide truthful and competent testimony, if necessary.
Simons was called as a witness at Hammond's trial. His testimony substantially accords with the factual summary set forth above.
At the time of Simons's guilty plea, he and the trial court engaged in a colloquy. Simons informed the trial court that he had a seventh-grade education and had not suffered any mental disease or illness. He was not ill or under the influence of drugs or alcohol. Simons acknowledged that he had consulted with his attorney about the plea and was satisfied with counsel's advice. The trial court reviewed Simons's constitutional rights with him and informed him that, by pleading guilty, he was waiving those rights. Simons affirmed that he understood his sentence would be twenty-five years and admitted that he committed the underlying crimes. He further affirmed that no threats or promises had been made to him or that he had been pressured to plead guilty. Counsel informed the court that Simons understood the plea offer and that Simons's plea was knowing, intelligent and voluntary. Simons further understood that twenty years of his sentence was subject to 85% parole eligibility. After finding the plea was knowing, intelligent and voluntary, the trial court accepted the plea and sentenced Simons to twenty-five years in conformance with the Commonwealth's recommendations. A final judgment on the guilty plea was entered on March 18, 2014.
On September 10, 2015, Simons filed a motion to vacate, set aside or correct his sentence pursuant to RCr 11.42. Therein, Simons argued that his trial counsel was ineffective for failing to explain the plea agreement and defense strategies to him. The trial court denied the motion, a decision this Court affirmed. See Simons v. Commonwealth, No. 2016-CA-000466-MR, 2017 WL 6568461, at *1 (Ky. App. Dec. 22, 2017).
Kentucky Rules of Criminal Procedure.
Next, on April 20, 2018, Simons filed a CR 60.02 motion. He argued that he was entitled to have the judgment vacated and a new trial ordered because new evidence in the form of an affidavit from David Bruce, one of his co-defendants, proved Simons was actually innocent. The Commonwealth responded by citing to portions of the record that contradicted Bruce's recent affidavit, including Simons's own testimony at Hammond's trial wherein Simons admitted having grabbed the victim around the neck from behind and then choking him until he went limp. The trial court denied Simons's motion by order entered June 27, 2018. Simons did not appeal.
On or about January 3, 2019, Simons filed another CR 60.02 motion. The trial court ultimately granted Simons partial relief insomuch as it vacated the first-degree assault conviction. In doing so, the trial court relied on the Kentucky Supreme Court's prior opinion that Joshua Hammond, one of Simons's co-defendants, was wrongfully convicted of both first-degree assault and reckless homicide because the evidence of record was that victim suffered only one life-threatening injury, the fatal throat injury, requiring the merger of the two charges. Hammond, 504 S.W.3d 44 at 52-54. The trial court observed Simons's convictions were based on this same evidence, and justice required the trial court to vacate his assault conviction as well. In doing so, the trial court noted that neither Simons's total sentence nor his parole eligibility would be affected. The trial court then took up Simons's other arguments. It specifically noted that Simons had not shown that he was fraudulently induced to plead guilty or was incompetent to do so. As such, it denied Simons's motion as it related to the remaining arguments.
The trial court's case history/docket sheet denotes that a motion described as "motion to amend sentence pursuant to CR 60.02" was filed with the Franklin Circuit Court Clerk on January 3, 2019. This motion, however, is not included in the certified record.
This appeal followed.
II. STANDARD OF REVIEW
Whether to grant relief pursuant to CR 60.02 is a matter left to the "sound discretion of the [trial] court and the exercise of that discretion will not be disturbed on appeal except for abuse." Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (quoting Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
Additionally, we do not review issues that are raised for the first time before our Court. See Johnson v. Commonwealth, 231 S.W.3d 800, 808 (Ky. App. 2007) ("Appellate courts do not have the authority to review alleged errors that were not raised in or decided by the trial court.").
III. ANALYSIS
On page two of his appellant brief, Simons characterizes his argument as "not that he was incompetent to stand trial, but whether or not he was competent at the time of the crime since his mental retardation caused him to lack and/or appreciate wanton intent, thus, causing him to act recklessly which is a lesser degree of culpability, and one that requires a much lesser (more) lenient sentence." This is not how the trial court characterized Simons's argument before it. The trial court stated that Simons was arguing that "his low IQ rendered him incapable of consenting to this plea agreement." The trial court did not address any argument similar to the one made by Simons to this Court.
"[W]e have consistently and repeatedly held that it is an appellant's responsibility to ensure that the record contains all of the materials necessary for an appellate court to rule upon all the issues raised. And we are required to assume that any portion of the record not supplied to us supports the decision of the trial court." Alkabala-Sanchez v. Commonwealth, 255 S.W.3d 916, 920-21 (Ky. 2008) (quoting Clark v. Commonwealth, 223 S.W.3d 90, 102 (Ky. 2007)). Because Simons's CR 60.02 motion is not contained in the certified record before this Court, we have no way to ascertain whether he actually made this argument before the trial court. Instead, we "must assume that the omitted record supports the decision of the trial court." Hatfield v. Commonwealth, 250 S.W.3d 590, 600 (Ky. 2008) (quoting Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985)). In other words, we must assume that Simons did not bring up the argument that he was not mentally capable of committing the crimes at issue before the trial court; otherwise, the trial court would have addressed it.
We note that the response filed by the Commonwealth is in the record before us. The Commonwealth's response comports with the trial court's characterization of Simons's argument as being that his limited cognitive ability rendered him incompetent to plead guilty. --------
Since the competency to commit the crimes at issue was not preserved before the trial court, our review is limited to one of manifest injustice. There is no manifest injustice that we can ascertain from our extensive review of the record. Even though Simons may have a relatively low IQ, he has not shown that he lacked the capacity to commit the crimes at issue. Additionally, Simons has failed to articulate any reason why he waited so long to bring this claim. Simons's original judgment was entered in 2014. He did not file his most recent CR 60.02 motion until early 2019, almost five years later. Simons's mental state was extensively investigated and documented by his counsel in preparation for trial. And, Simons's RCr 11.42 filings indicate that he was aware of the results of his various mental evaluations long before 2019. This issue is one that could and should have been brought much earlier. It is not the type of issue that merits extraordinary relief. See Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky. 2008) ("CR 60.02 was never meant to be used as another vehicle to revisit issues that should have been included or could have been included in prior requests for relief." (internal quotation marks and citation omitted)).
IV. CONCLUSION
For the foregoing reasons, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: James Simons, Pro Se
Pineville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky