Opinion
NO. 2013-CA-000731-MR
02-28-2014
ROY STILTNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy Stiltner, Pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 86-CR-00189
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. MOORE, JUDGE: Roy Stiltner appeals the order of the Fayette Circuit Court denying his RCr 10.02 and RCr 10.06 motion for a new trial and denying his CR 60.02 motion for relief from the court's judgment convicting him of murder. After a careful review of the record, we affirm because the RCr 10.02 and RCr 10.06 aspects of his motion were untimely and the claim he asserted under CR 60.02 was not proper.
Kentucky Rule of Criminal Procedure.
Kentucky Rule of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1986, Stiltner was indicted on charges of murder, a capital offense, and of being a first-degree persistent felony offender (PFO-1st). He entered a guilty plea that same year to the charge of murder and he was sentenced to life imprisonment. The PFO-1st count against him was dismissed.
In 2004, Stiltner filed his pro se RCr 11.42 motion to vacate his sentence alleging that he had been incompetent to stand trial pursuant to KRS504.110. He stated that he had been a patient at Eastern State Mental Hospital, which he contended proved that he was incompetent to give a statement to the police. He attached to his motion a report of a psychological examination that had been conducted on Stiltner as a fifteen-year-old boy in 1961. The report provided that various tests had been performed on Stiltner and according to one of those tests, his IQ was 68, while another test revealed that his IQ was 54. The report further provided that Stiltner was a child who was "developing a sociopathic personality."
Kentucky Revised Statute.
Intelligence Quotient.
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In 2007, Stiltner's counsel supplemented the RCr 11.42 motion. The circuit court noted that there is a three-year limitations period for filing RCr 11.42 motions, but that Stiltner had argued the period should be tolled until he could undergo a mental competency evaluation. The court found Stiltner's request was without merit because there was
nothing in the record to indicate that at the time of his guilty plea that Stiltner was suffering from any kind of mental illness, disease or defect. He underwent a mental evaluation assessment in 1961, almost 25 years before he pled guilty to murder. He did not indicate during the guilty plea colloquy that he did not understand the charges against him nor that he did not understand the proceedings. Stiltner was a persistent felony offender and was well acquainted with the judicial system. Stiltner is not entitled to a mental evaluation at this juncture. Even if a mental evaluation or assessment was completed now, there is no way to know whether at the time he entered his guilty plea in April of 1986 that he suffered from any mental illness, disease or defect.The court then ruled that Stiltner's RCr 11.42 motion was untimely filed and that it was not subject to equitable tolling.
Stiltner appealed and this Court ultimately affirmed the circuit court's decision. See Stiltner v. Commonwealth, No. 2007-CA-002048-MR, 2009 WL 102975, *1 (Ky. App. Jan. 16, 2009) (unpublished). This Court noted that
Stiltner alleged in his RCr 11.42 motion that he received ineffective assistance because his trial counsel did not request an evaluation or hearing to determine whether he was competent to stand trial. Stiltner attached to his motion, as evidence of his incompetency, a report from a psychological examination conducted in 1961 when he was 15 years old. The report indicated that Stiltner was "definitely mentally defective" per his low IQ, and that he was a child who was "developing a 'sociopathic personality.'" Stiltner also attached a report from a 2006 examination which indicated that he was in an IQ range "typically associated with Mental Retardation." StiltnerStiltner, No. 2007-CA-002048-MR, 2009 WL 102975, at *1 (Ky. App. Jan. 16, 2009) (unpublished).
alleged that due to his incompetence, he remained ignorant of the three-year limitations period and/or the basis for his claim.
This Court concluded that
the circuit court did not err by denying Stiltner's motion without an evidentiary hearing. Obviously, the 1961 psychological evaluation was conducted well before the criminal proceedings against him began. Further, although the DPA requested a copy of Stiltner's file in February 1996 "to be reviewed for post conviction relief," and Stiltner himself requested a copy of his file in July 1999, Stiltner did not file his postconviction motion until December 2004. This lapse clearly shows a lack of diligence. The fact that Stiltner apparently functions at a low IQ level, or personally may have been unaware of the three-year limitations period, simply does not compel a different result. The DPA was certainly aware of the time limitations for any RCr 11.42 motion, as well as the diligence requirement. And the record reveals that Stiltner was at least competent enough to request his file and file a pro se RCr 11.42 motion.Stiltner v. Commonwealth, No. 2007-CA-002048-MR, 2009 WL 102975, at *2 (Ky. App. Jan. 16, 2009) (unpublished).
As for Stiltner's allegation that the circuit court erred by denying his motion for a postconviction competency evaluation, this Court held that it was "reasonable to believe that any defendant seeking such an evaluation would need to show . . . the existence of 'specific factual matters at issue that require the defendant to competently consult with counsel.'" Stiltner v. Commonwealth, No. 2007-CA-002048-MR, 2009 WL 102975, at *2 (Ky. App. Jan. 16, 2009) (unpublished). The Court then reasoned that because in Stiltner's case "no such factual matters exist, the trial court did not err by failing to order a post-conviction competency evaluation to determine whether Stiltner was competent to pursue postconviction relief." Stiltner v. Commonwealth, No. 2007-CA-002048-MR, 2009 WL 102975, at *2 (Ky. App. Jan. 16, 2009) (unpublished).
Almost four years after this Court affirmed the circuit court's decision in Stiltner's RCr 11.42 proceedings, he filed his motion for relief from judgment pursuant to CR 60.02(e) and (f), RCr 10.02, and RCr 10.06(1). In that motion, Stiltner alleged he was incompetent at the time of his guilty plea and that he had entered the plea to the murder charge because his trial counsel advised him that if he did not accept the Commonwealth's offer of life imprisonment and a dismissal of the PFO-1st charge, he would receive the death penalty. Stiltner contended, however, that the maximum punishment he could have received under the law in 1986 was life imprisonment. Stiltner again argued that according to psychological records from 1961 and 2006, his IQ was "below the 'mental retardation' range." He alleged that it is apparent, upon reading KRS 504.090, KRS 504.100, and KRS 532.130(2), that he should not have been permitted to enter a guilty plea due to his incompetence and, thus, that his guilty plea was not voluntarily and intelligently entered.
The circuit court denied his motion, finding that Stiltner was raising "the same substantive issues that were contained in his previous motion" and that he was merely attempting to obtain "a second bite at the apple under the guise of CR 60.02(e) and (f), RCr 10.02, and RCr 10.06(1)." The court continued, noting that Stiltner failed to "affirmatively state facts which justify vacating the judgment against him under CR 60.02. . . . There is nothing in the record to indicate that at the time of his guilty plea that Stiltner was suffering from any kind of mental illness, disease or defect." Regarding Stiltner's "vast criminal history," the court noted "Stiltner was apparently well acquainted with the judicial system however he failed to indicate during his guilty plea that he did not understand the charges against him nor that he did not understand the proceedings." The circuit court further found that Stiltner's CR 60.02 motion was not filed within a reasonable time after the judgment was entered as the rule requires. The court also denied Stiltner's motion under RCr 10.02 and RCr 10.06 because he had not filed those motions in a timely manner and he had not produced any newly discovered evidence to show that he was incompetent and unable to understand the nature of the proceedings against him.
Stiltner now appeals, arguing that he suffered substantial prejudice and was denied his right to due process of law when the trial court failed to grant him a new competency hearing based upon his claim that he met the "mental retardation" range and was incompetent to plead guilty to murder under KRS 532.130 and KRS 532.135.
II. CLAIMS BROUGHT UNDER RCr 10.02 AND RCr 10.06
Stiltner filed his motion in the circuit court under CR 60.02, RCr 10.02, and RCr 10.06. To the extent that the motion was filed under RCr 10.02 and RCr 10.06, it was untimely.
Motions for a new trial brought pursuant to RCr 10.02 and 10.06 must be served not later [than] five (5) days after return of the verdict. Claims premised on newly discovered evidence may be brought within one year of the judgment, or at a later time if the trial court finds that "good cause so permits." RCr 10.06(1). The decision to grant a new trial lies within the sound discretion of the trial court, and there must be a showing that this discretion was abused to warrant reversal.Commonwealth v. Carneal, 274 S.W.3d 420, 431 (Ky. 2008) (internal quotation marks and citation omitted).
Stiltner has not shown that the circuit court abused its discretion in denying his motion for a new trial because his motion was filed twenty-six years after the verdict was returned, and six years after his most recent psychological evaluation that stated his IQ was below 70. Thus, this claim lacks merit.
III. CLAIMS UNDER CR 60.02
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id. "A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further alleges special circumstances that justify CR 60.02 relief." White, 32 S.W.3d at 86 (internal quotation marks and citation omitted).
To the extent Stiltner's CR 60.02 appeal is based upon KRS 532.130 and KRS 532.135, his claim could have and should have been raised in a timely-filed RCr 11.42 motion because those statutes were enacted long before he filed his untimely RCr 11.42 motion. Thus, he cannot obtain CR 60.02 relief based upon those statutes.
Further, regarding the remainder of Stiltner's claim, he alleged in his prior RCr 11.42 motion that he was incompetent at the time his guilty plea was entered, and he based this allegation on two psychological evaluations from 1961 and 2006 showing that he qualified as "mentally retarded" due to his below-70 IQ. Therefore, Stiltner's current CR 60.02 claim was either brought previously in his prior RCr 11.42 motion, or it could have been brought in a timely-filed RCr 11.42 motion. Consequently, he did not properly raise it in his motion brought under CR 60.02.
Accordingly, the order of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Roy Stiltner, Pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky