Opinion
NO. 2009-CA-001761-MR
02-22-2013
RITA BLEDSOE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rita Bledsoe, Pro se Fredonia, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE IRV MAZE, JUDGE
ACTION NO. 03-CR-002511
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: The issue to be decided is whether the Jefferson Circuit Court erred by denying Appellant Rita Bledsoe's Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate, set aside, or correct the judgment against her due to ineffective assistance of counsel. Finding no error, we affirm.
On a date after Bledsoe had reached the age of eighteen, she committed an assault under extreme emotional disturbance for which she was convicted and sentenced to five years' imprisonment. She was subsequently granted probation.
Four years later, on September 25, 2003, the Jefferson County Grand Jury indicted Bledsoe on one count of first-degree arson and being a second-degree persistent felony offender (PFO II). The indictment alleged that on August 6, 2003, Bledsoe intentionally set fire to an occupied apartment building. The basis of the PFO II charge was Bledsoe's prior felony assault conviction.
Bledsoe proceeded to trial. On July 26, 2004, a jury found Bledsoe guilty of first-degree arson. The next day, rather than proceeding with the sentencing phase of the trial, the parties informed the circuit court that they had reached a sentencing agreement. Bledsoe agreed to plead guilty to being a PFO II and, in exchange, the Commonwealth agreed to recommend a twenty-year sentence, the minimum sentence for first-degree arson. The circuit court postponed accepting Bledsoe's PFO II plea and sentencing to allow for Bledsoe to undergo a competency evaluation.
In the interim, Bledsoe and the Commonwealth reached a second agreement: the Commonwealth agreed to amend the first-degree arson charge to second-degree arson. In exchange, Bledsoe agreed to plead guilty to second-degree arson and being a PFO II, accept a twenty-year imprisonment sentence, enhanced to forty years by virtue of her PFO II status, and not to seek probation. On December 17, 2004, the Commonwealth tendered an "Offer on a Plea of Guilty" reflecting the parties' agreement. Bledsoe accepted the Commonwealth's offer and, on April 27, 2005, pleaded guilty to the amended charge of second-degree arson and being a PFO II. By order dated June 8, 2005, the circuit court accepted Bledsoe's guilty plea, adjudged Bledsoe guilty, and, consistent with the Commonwealth's offer, sentenced Bledsoe to forty years for the PFO II-enhanced second-degree arson conviction.
On or about April 18, 2008, Bledsoe moved, pro se, to vacate her conviction pursuant to RCr 11.42 alleging ineffective assistance of counsel. Bledsoe asserted her trial counsel was deficient by: (1) failing to object to the PFO II charge in the plea agreement on the ground that Bledsoe did not qualify as a persistent felony offender because her felony convictions were not for the same crime; (2) failing to conduct a national background check on the arson victims; (3) failing to object to inadmissible prior bad acts evidence; (4) inadequately conveying Bledsoe's innocence to the jury; (5) failing to inform the jury of Bledsoe's clean prison disciplinary record and participation in self-improvement courses; and (6) failing to inform Bledsoe that entering a guilty plea to being a PFO II would enhance her sentence from twenty years to forty years to serve. Bledsoe moved for an evidentiary hearing on her RCr 11.42 claims and for appointment of counsel. The Commonwealth opposed Bledsoe's motions. The circuit court granted Bledsoe's motion for appointment of counsel but declined to grant an evidentiary hearing. By order dated August 21, 2009, the circuit court denied Bledsoe's RCr 11.42 motion. This appeal followed.
Bledsoe pleaded guilty; therefore, to establish an ineffective assistance of counsel claim, she must prove:
(1) [t]hat counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; andCommonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009) (citation omitted); see also Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). We analyze the first facet - deficient performance - utilizing an objective standard of reasonableness and considering whether the alleged deficient acts or omissions fell outside the wide range of prevailing professional norms. Strickland v. Washington, 466 U.S. 688, 688-89, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). To satisfy this element, Bledsoe must establish that her trial counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). With this standard as our guide, we turn to Bledsoe's claims of error.
(2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.
On appeal, Bledsoe asserts different grounds than those raised in the circuit court. Specifically, Bledsoe claims her trial counsel was ineffective when counsel: (1) failed to object to the circuit court's decision to amend the jury's verdict on the ground that, pursuant to Kentucky Rules of Civil Procedure (CR) 59.05, the circuit court lost jurisdiction over the original "judgment" dated July 26, 2004, after the lapse of ten days; (2) failed to impress upon the circuit court that it lacked authority to permit Bledsoe to plead guilty to being a PFO II because only a jury can declare a person a persistent felony offender per Kentucky Revised Statute (KRS) 532.080; and (3) failed to object to the PFO II charge in the plea agreement on the ground that Bledsoe did not qualify as a persistent felony offender because she had never been to prison for a rehabilitative purpose.
Bledsoe's allegations of ineffective assistance were neither raised in her original RCr 11.42 motion nor adjudicated by the circuit court. Because Bledsoe failed to raise these issues before the circuit court, we are not required to address them. Raisor v. Raisor, 245 S.W.3d 807, 809 (Ky. App. 2008) ("The Court of Appeals is one of review and is not to be approached as a second opportunity to be heard as a trial court." (citation omitted)). Nevertheless, we choose to do so today for two reasons. First, we do so out of an abundance of caution as Bledsoe did take issue with her status as a persistent felony offender, albeit on different grounds, in her RCr 11.42 motion. Second, Bledsoe's pro se brief reveals she expended considerable time, effort, and care crafting legal arguments supported by legal authority. While we do not find Bledsoe's argument persuasive, we commend Bledsoe for her attempt at a well-reasoned pro se brief to this Court.
We caution the bar not to construe our decision as precedent or binding authority; our decision is an anomaly based upon the specific facts of this case, as outlined.
Bledsoe's first argument concerning the circuit court's jurisdiction to amend the jury's verdict, and trial counsel's failure to object thereto, does not reveal deficient performance by trial counsel. CR 59.05 provides that a trial court loses jurisdiction to alter, amend, or vacate a judgment ten days after its entry. Commonwealth v. Smith, 354 S.W.3d 595, 596 (Ky. App. 2011). A jury's verdict is not equivalent to a trial court's judgment.
There is a material difference in the status of a defendant following the verdict of guilt and his status after a final judgment has been entered and sentence pronounced. The verdict is but the basis of the judgment and is not effective until there is a judgment. Its return and acceptance by the court are but interlocutory steps toward final disposition, for it may be set aside and judgment thereon arrested if the judge be of opinion, in the exercise of a judicial discretion, that it ought to be.Lovelace v. Commonwealth, 285 Ky. 326, 147 S.W.2d 1029, 1034 (1941). Here, the jury returned its verdict on July 26, 2004, but there was no entry of a final judgment upon that verdict. Instead, at Bledsoe's request, the jury's verdict was set aside to allow Bledsoe to enter a guilty plea. This was unquestionably proper, and does not run afoul of this Commonwealth's criminal or civil procedural rules. See id. Accordingly, Bledsoe's trial counsel was not deficient in failing to object to the plea agreement or in failing to urge disregard of the jury's verdict on jurisdiction grounds.
Bledsoe next argues she received ineffective assistance of counsel because her trial counsel failed to object to both the inclusion of the PFO II status in the plea agreement and the circuit court's ultimate enhanced sentence as a result thereof on the ground that no jury had found Bledsoe to be a persistent felony offender. Bledsoe contends, pursuant to KRS 532.080, determining whether a person is a persistent felony offender rests solely within the purview of a jury. In that regard, Bledsoe argues that a defendant is not permitted to usurp the jury's role by pleading guilty to being a persistent felony offender. We are not persuaded.
KRS 532.080 provides, in pertinent part:
When a defendant is charged with being a persistent felony offender, the determination of whether or not he is such an offender and the punishment to be imposed pursuant to subsection (5) or (6) of this section shall be determined in a separate proceeding from that proceeding which resulted in his last conviction. Such proceeding shall be conducted before the court sitting with the jury that found the defendant guilty of his most recent offense[.]KRS 532.080(1). Under this statute, whether a person is a persistent felony offender is a question of fact to be decided by a jury during a trial's sentencing phase. See id.; KRS 532.055; White v. Commonwealth, 770 S.W.2d 222, 224 (Ky. 1989). A defendant, however, may plead guilty to a charged offense or criminal status. RCr 8.08 ("A defendant may plead not guilty, guilty or guilty but mentally ill."). When a defendant does so unconditionally, he or she "admits the factual accuracy of the various elements of the offenses with which he is charged" thereby relieving the jury of its duty. Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986); Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S. Ct. 241, 242 n. 2, 46 L. Ed. 2d 195 (1975) (explaining "a counseled plea of guilty is an admission of factual guilt so reliable that . . . it quite validly removes the issue of factual guilt from the case" and, in turn, the jury). While "[c]onviction as a persistent felony offender is not a charge of an independent criminal offense but rather a particular criminal status[,]" Owens v. Commonwealth, 329 S.W.3d 307, 318 (Ky. 2011) (citation omitted), we find such logic to be equally applicable. "[C]riminal justice today is for the most part a system of pleas, not a system of trials." Lafler v. Cooper, 132 S. Ct. 1376, 1388, 182 L. Ed. 2d 398 (2012). To accept Bledsoe's position as true would severely limit, if not extinguish, a criminal defendant's ability to enter a guilty plea in any criminal case in which a question of fact existed, for the jury is always the arbiter of disputed facts. Bledsoe did not receive ineffective assistance of counsel when her trial counsel did not object to the PFO II charge in the plea agreement.
Bledsoe further contends her trial counsel was deficient when counsel failed to object to the inclusion of the PFO II charge in the plea agreement on the ground that Bledsoe had never been to prison for a rehabilitative purpose and, therefore, did not qualify as a persistent felony offender. In support, Bledsoe relies on the 1974 Kentucky Crime Commission/LRC Commentary to KRS 532.080, which provides, in pertinent part:
[KRS 532.080(2)](c) requires that the defendant must have been imprisoned for the prior offense before it can be treated as a previous felony conviction under this section. The purpose of this requirement is to restrict application of the habitual offender statute to persons who have been previously exposed to an institutional rehabilitative effort.KRS 532.080, 1974 Kentucky Crime Commission/LRC Commentary. Bledsoe acknowledges her prior felony conviction and admits she was on probation for that crime when the arson incident occurred. Nonetheless, Bledsoe maintains because she was granted probation, instead of imprisonment, her prior felony conviction was an insufficient basis to elevate her status to that of being a persistent felony offender. We disagree.
Since the enactment of KRS 532.080 in 1974, the Kentucky General Assembly has amended KRS 532.080(2)(c) to allow for prosecution for PFO II provided one of several forms of release from custody existed at the time the new offense was committed. Probation is one such qualifying form of release. KRS 532.080(2) (explaining a previous felony conviction qualifies provided, inter alia, "(c) [t]hat the offender: 2. [w]as on probation . . . at the time of the felony for which he now stands convicted"). By the plain language of the statute, a defendant need no longer to have been imprisoned for the previous offense before that conviction can be treated as a prior felony conviction upon which persistent felony offender status is based. Bledsoe's argument lacks merit.
Bledsoe has failed to raise any grounds of ineffective assistance of counsel meriting post-conviction relief. Accordingly, the Jefferson Circuit Court's August 21, 2009 opinion and order denying Bledsoe's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Rita Bledsoe, Pro se
Fredonia, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky