Opinion
2023-CA-0749-MR
10-04-2024
COMMONWEALTH OF KENTUCKY APPELLANT v. CURTIS EARL MYRICK APPELLEE
BRIEFS FOR APPELLANT: Daniel Cameron Attorney General of Kentucky Daniel J. Grabowski Assistant Solicitor General Frankfort, Kentucky BRIEF FOR APPELLEE: J. Ryan Chailland Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ADAIR CIRCUIT COURT HONORABLE DAN KELLY, SPECIAL JUDGE ACTION NO. 21-CR-00106
BRIEFS FOR APPELLANT: Daniel Cameron Attorney General of Kentucky Daniel J. Grabowski Assistant Solicitor General Frankfort, Kentucky
BRIEF FOR APPELLEE: J. Ryan Chailland Frankfort, Kentucky
BEFORE: ECKERLE, GOODWINE, AND MCNEILL, JUDGES.
OPINION
GOODWINE, JUDGE
The Commonwealth appeals the May 30, 2023 order of the Adair Circuit Court granting the RCr 11.42 motion of Curtis Earl Myrick ("Myrick") and reducing his sentence. We vacate and remand.
Kentucky Rules of Criminal Procedure.
On May 20, 2021, Myrick was indicted on one count each of trafficking in a controlled substance in the first degree, second or subsequent offense, with a firearms' enhancement; possession of a handgun by a convicted felon; possession of drug paraphernalia; possession of a controlled substance in the second degree; possession of marijuana; and public intoxication. He failed to appear at arraignment because he was in the hospital for surgery and treatment for gunshot wounds.
Myrick's injuries were unrelated to this matter.
Thereafter, Myrick accepted a plea offer from the Commonwealth.
The Commonwealth agreed to dismiss the firearms enhancement on the trafficking charge. Under the agreement, Myrick pleaded to the remaining charges for a total sentence of ten years' imprisonment. The agreement also included a "hammer clause," which read:
If the Defendant violates any condition of bond pending final sentencing; or if the Defendant commits a criminal offense while awaiting final sentencing; or if the Defendant fails to appear at his/her scheduled court date for final sentencing; then the Commonwealth may recommend a total sentence in this case not to exceed twenty (20) years and the Commonwealth will oppose probation.Record ("R.") at 52.
When Myrick entered his guilty plea, he informed the trial court he had sufficient time to review the plea with his attorney. His trial counsel confirmed that she had reviewed the plea offer with Myrick. The Commonwealth asked trial counsel if he understood that "the offer could change if there was a bond violation." Video Record ("V.R.") 8/24/2021 at 5:16:23-25. Trial counsel confirmed that she reviewed that "at great length." Id. at 5:16:25-29.
Before sentencing, Myrick was charged with new crimes. He then failed to appear for sentencing on October 26, 2021.
Myrick was sentenced in a virtual hearing on December 14, 2021. He appeared from the jail via Zoom. Trial counsel was also present. Trial counsel asked the court to impose the ten-year sentence to which the parties agreed despite Myrick's failure to appear and new criminal charges. Myrick admitted he failed to appear on October 26th because he "got back on drugs again" after leaving rehab. V.R. 12/14/2021 at 12:48:58-49:28. The Commonwealth requested the trial court impose a twenty-year sentence pursuant to the hammer clause. The court was convinced by the Commonwealth's argument and imposed the twenty-year sentence.
Immediately thereafter, Myrick told the trial court he had not agreed to the hammer clause. He argued he was unable to read and write, and that his trial counsel failed to inform him of the clause. The court asked if Myrick understood that when he was released on bond, he was supposed to return for sentencing. Myrick confirmed that he did. The court then asked if he understood his bond conditions, including that he was not to violate the law, be charged with new offenses, or use illegal substances. Myrick confirmed that he understood these conditions but reiterated that he did not understand that his plea could result in a twenty-year sentence. Trial counsel remained silent during this exchange. The trial court did not ask whether she had explained the hammer clause to Myrick. The court was not persuaded by Myrick's argument and told him that he was "old enough to know better," and the court did not think he "should be complaining" because he "brought it upon [himself]." Id. at 12:56:37-45.
On November 10, 2022, Myrick moved, pro se, to vacate, set aside, or correct his sentence under RCr 11.42 based on ineffective assistance of trial counsel. He claimed, "counsel failed to read and explain the conditions of his plea agreement and conditions of his bond." R. at 73. Specifically, he alleged that he understood that he was pleading to a ten-year sentence, and trial counsel failed to inform him of the potential twenty-year sentence under the terms of the agreement. He claimed that because the trial counsel had been exposed to COVID-19, she was unable to meet with him to review the plea agreement and, instead, told him to read over it to the best of his ability and sign it. He argued that he reads and writes at a fourth-grade level and "could not read and comprehend" the plea agreement himself. Id. He asserted that he would not have agreed to the plea offer had he been aware of the hammer clause. He requested a hearing and, ultimately, for his sentence to be amended to ten years' imprisonment.
On December 5, 2022, the trial court appointed counsel for Myrick.
The appointed counsel did not file an amended motion or participate in any manner before the trial court. The Commonwealth did not file an answer to Myrick's motion.
On May 30, 2023, the trial court, sua sponte, entered an order granting Myrick's motion. The order, in its entirety, stated:
This matter having come before the Court on the Defendant's motion to obtain relief pursuant to RCr 11.42.
The Court previously entered an order granting the defendant's motion for counsel and appointing the Department of Public Advocacy to represent the defendant. However, no pleadings ha[ve] been made pursuant to that order.
As a matter of judicial economy, and on it's [sic] own motion, noting the documents in the file attempting to justify the defendant's failure to appear for sentencing for medical reasons and inability to read well, the court hereby modifies the sentence on count one of the indictment herein to the 10 year sentence the defendant agreed to at the time of his plea, not withstanding [sic] the provision in the plea agreement that he would incur a higher sentence if he failed to appear as scheduled for the final sentencing.R. at 84. This appeal followed.
On appeal, the Commonwealth claims the trial court erred by granting Myrick's RCr 11.42 motion and reducing his sentence. It argues the court should have, instead, (1) summarily denied the motion, (2) required appointed counsel to file an amended motion, or (3) granted an evidentiary hearing on the motion.
First, Myrick argues we should deem the Commonwealth's arguments waived because it failed to file an answer to his motion. See RCr 11.42(5). A motion under RCr 11.42 is not a pleading, and "no written response is required to entitle a party to oppose it." Ramsey v. Commonwealth, 399 S.W.2d 473, 475 (Ky. 1966) (citation omitted). The Commonwealth did not waive its opposition to Myrick's motion by not filing an answer. See Polsgrove v. Commonwealth, 439 S.W.2d 776, 778 (Ky. 1969); see also Clutter v. Commonwealth, No. 2014-CA-000829-MR, 2015 WL 6437372, *2 (Ky. App. Oct. 23, 2015). We will now proceed with reviewing the merits of the Commonwealth's appeal.
We cite to this unpublished opinion as persuasive, nonbinding authority. Kentucky Rules of Appellate Procedure ("RAP") 41(A).
When presented with a motion under RCr 11.42, the trial court should follow these procedural steps:
1. The trial judge shall examine the motion to see if it is properly signed and verified and whether it specifies grounds and supporting facts that, if true, would warrant relief. If not, the motion may be summarily dismissed. Odewahn v. Ropke, [385 S.W.2d 163, 164 (Ky. 1964)].
2. After the answer is filed, the trial judge shall determine whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required. A hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record. Stanford v. Commonwealth, [854 S.W.2d 742, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994); Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)]. The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Drake v. United States, 439 F.2d 1319, 1320 (6th Cir. 1971).
3. If an evidentiary hearing is required, counsel must be appointed to represent the movant if he/she is indigent and specifically requests such appointment in writing. Coles v. Commonwealth, [386 S.W.2d 465 (Ky. 1965)]. If the movant does not request appointment of counsel, the trial judge has no duty to do so sua sponte. Beecham v. Commonwealth, 657 S.W.2d 234, 237 (Ky. 1983).
4. If an evidentiary hearing is not required, counsel need not be appointed, "because appointed counsel would [be] confined to the record." Hemphill v. Commonwealth, [448 S.W.2d 60, 63 (Ky. 1969)]. (However, the rule does not preclude appointment of counsel at any stage of the proceedings if deemed appropriate by the trial judge.)Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). The trial court must evaluate the movant's claims under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under this standard, the movant must prove: (1) trial counsel's performance was "below the objective standard of reasonableness[,]" and (2) was "so prejudicial as to deprive [the] defendant of a fair trial and a reasonable result." Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth 4 279 S.W.3d 151 (Ky. 2009) (citing Strickland, supra). Where a defendant has pleaded guilty, he must "demonstrate a reasonable probability that, but for [trial] counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012) (internal quotation marks and citation omitted).
Here, the trial court failed to both apply the Strickland standard and follow the procedure laid out in Fraser. First, despite granting the motion and amending Myrick's sentence, the court did not make any findings as to the trial counsel's representation of Myrick. Instead, the court based its decision on documentation of Myrick's injuries and treatment and his inability to read well. Neither of these findings pertains to the trial counsel's actions and whether they amounted to ineffective assistance under Strickland.
The Commonwealth correctly asserts that the trial court's finding as to Myrick's medical reasons for failing to appear at sentencing is clearly erroneous because it is refuted by the record. Myrick failed to appear at arraignment, not the October 26, 2021 sentencing, because of his medical treatment. At sentencing on December 14, 2021, he admitted on he failed to appear on October 26th because he was using drugs.
Furthermore, we cannot find the record conclusively refutes Myrick's claim that trial counsel did not inform him of the hammer clause and its potential consequences. When Myrick entered his plea, counsel confirmed that she had reviewed the plea offer. When the Commonwealth asked her if Myrick understood that the offer could change if there was a bond violation, she said he did.
However, at sentencing, when Myrick claimed he was unaware his plea agreement could result in a twenty-year sentence, trial counsel did not refute his claim, and the trial court did not question her about it. Therefore, an evidentiary hearing is necessary to resolve this issue.
Based on the foregoing, we vacate the May 30, 2023 order of the Adair Circuit Court and remand for an evidentiary hearing on Myrick's motion. In deciding the motion, the trial court shall evaluate his claim under the two-pronged Strickland standard.
ALL CONCUR.