Opinion
NO. 2015-CA-001215-MR
04-15-2016
SCOTTY ALLEN UPCHURCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Scotty Allen Upchurch, pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-00680 OPINION
AFFIRMING BEFORE: DIXON, MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Scotty Upchurch appeals from an order of the Franklin Circuit Court which denied his petition for declaratory judgment. We find no error and affirm.
Upchurch has previously been before this Court. The facts of that case are relevant to these proceedings; therefore, we will utilize the facts set forth in our earlier opinion.
By way of separate indictments handed down on June 24, 2004, and October 19, 2004, the Wayne County grand jury indicted Upchurch with one count each of complicity to commit robbery in the first-degree and complicity to commit capital murder. The charges arose from events occurring on May 15, 2004, when William E. Wells, Sr., age 91, and his son, William E. Wells, Jr., were robbed and beaten in their home. William Wells, Sr. died as a result of his injuries.Upchurch v. Commonwealth, No. 2007-CA-001130-MR, 2008 WL 2779929, at *1 (Ky. App. 2008).
A police investigation followed, whereupon evidence was developed that Upchurch and at least two other persons committed or otherwise participated in the robbery and murder. The parties were found to be in possession of forged checks belonging to Wells, and were observed changing their clothes and attempting to dispose of them in a Wal-Mart parking lot.
On September 1, 2006, Upchurch appeared in Wayne Circuit Court and entered a guilty plea to both charges pursuant to a plea agreement with the Commonwealth. In return for the guilty plea, the Commonwealth recommended concurrent sentences of imprisonment totaling 34 years. On September 19, 2006, the guilty plea was accepted and Upchurch was sentenced to 34 years in prison in accordance with the Commonwealth's recommendation.
The Commonwealth had sought the death penalty in this case. --------
In the years that followed, Upchurch filed two motions for post-conviction relief. Both were denied by the trial court and affirmed by different panels of this Court. Then, on June 5, 2014, Upchurch tendered a petition seeking a declaratory judgment. Upchurch requested that the court declare Kentucky Revised Statute (KRS) 532.130(2) unconstitutional pursuant to the recent United States Supreme Court case of Hall v. Florida, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). The petition was denied on July 21, 2015, and this appeal followed.
KRS 532.130(2) states:
A defendant with significant subaverage intellectual functioning existing concurrently with substantial deficits in adaptive behavior and manifested during the developmental period is referred to in KRS 532.135 and 532.140 as a defendant with a serious intellectual disability. "Significantly subaverage general intellectual functioning" is defined as an intelligence quotient (I.Q.) of seventy (70) or below.Pursuant to KRS 532.135 and KRS 532.140, a defendant with a serious intellectual disability is not subject to the death penalty in Kentucky. For the purposes of this case, a serious intellectual disability is defined as an I.Q. score of 70 or below.
As mentioned previously, the Commonwealth sought the death penalty when Upchurch was originally indicted. The record contains some evidence that Upchurch's I.Q. was 72. In the case at hand, Upchurch argues that he should not have been subject to the death penalty because the threshold I.Q. score of 70 has been found to be unconstitutional.
In Hall v. Florida, supra, the United States Supreme Court analyzed a Florida statute almost identical to Kentucky's regarding a threshold I.Q. of 70. The 8th Amendment to the United States Constitution forbids the execution of defendants with serious intellectual disabilities as being cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335 (2002). The Court in Hall found that the threshold I.Q. number of 70 did not account for the test's margin of error. The Court also stated that the prevailing norm is to interpret someone's I.Q. as a range, 5 points on either side of the score. In reviewing the strict adherence to the I.Q. score of 70, the Court stated that "[t]his rigid rule . . . creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." Hall, 134 S.Ct. at 1990.
Upchurch argues that his I.Q. score of 72 was within the margin of error of the I.Q. test. He claims he is mentally disabled and should not have been subject to the death penalty. He claims that the Commonwealth used the threat of seeking the death penalty as leverage to convince him to pleading guilty. He argues that KRS 532.130(2) should be declared unconstitutional because it too relies on the threshold I.Q. score of 70.
Upchurch brought this action pursuant to the Declaratory Judgment Act which states:
In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.KRS 418.040. Upchurch asks that this Court declare the statute at issue unconstitutional. We are unable to do so.
"'The court will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the controversy may be entered.'" Veith v. City of Louisville, 355 S.W.2d 295, 297 (Ky. 1962) (quoting Black v. Elkhorn Coal Corporation, 233 Ky. 588, 26 S.W.2d 481 (1930)). "An actual controversy for purposes of the declaratory judgment statute requires a controversy over present rights, duties and liabilities; it does not involve a question which is merely hypothetical or an answer which is no more than an advisory opinion." Barrett v. Reynolds, 817 S.W.2d 439, 441 (Ky. 1991) (citing Dravo v. Liberty Nat'l Bank & Trust Co., 267 S.W.2d 95 (Ky. 1954)).
In the case at hand, there is no actual controversy. Unlike the defendant in Hall, Upchurch was not sentenced to death, he pled guilty to a term of years. If we were to declare KRS 532.130(2) unconstitutional, it would provide Upchurch with no remedy. In addition, Upchurch's guilty plea waives all arguments surrounding his incarceration. "The general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense[.]" Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994) (citing Bush v. Commonwealth, 702 S.W.2d 46, 48 (Ky. 1986)).
Based on the foregoing, we affirm the judgment of the trial court.
ALL CONCUR. BRIEFS FOR APPELLANT: Scotty Allen Upchurch, pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky