Opinion
NO. 2015-CA-000521-MR
04-13-2018
ERIC DYE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Eric M. Dye, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 10-CR-00507 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Eric Dye, pro se, appeals from the Warren Circuit Court's order denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion following an evidentiary hearing, in which he sought to withdraw from his plea agreement.
On June 25, 2010, during the night, Dye knocked on the victim's door and asked her for toilet paper. According to the victim's police report, she knew Dye because he was her neighbor. When she returned with toilet paper, Dye forced his way inside and raped and sodomized her.
After the police identified Dye as the suspected perpetrator, Dye agreed to accompany Detective Tim Wilson to the station for a consensual interview and eventually admitted to raping and sodomizing the victim. He was then arrested, given a Miranda warning and continued to make incriminating statements. Dye was indicted for first-degree rape, first-degree sodomy, first-degree burglary and second-degree persistent felony offender (PFO-2).
The circuit court ordered that Dye be examined by the Kentucky Correctional Psychiatric Center (KCPC) to determine whether he met the criteria for incompetency to stand trial and whether he met the criteria for insanity. Dr. Perry testified at the competency hearing that Dye was capable of rationally participating in his defense and assisting his counsel, was capable of understanding the proceedings and their consequences, and was competent to stand trial.
On November 7, 2011, Dye appeared in court to enter a guilty plea based on a plea agreement. Dye was sworn in and the trial court questioned him about his plea. When asked whether he was mentally, physically and emotionally ready to enter a plea and whether he had any reservations, Dye became upset. Dye's trial counsel indicated Dye needed more time and the trial court stated Dye could reconsider his plea overnight and court would reconvene in the morning.
On November 8, 2011, the trial court asked Dye if he wanted to go forward with his plea and Dye responded "yes, sir." During questioning, it was established that trial counsel had read the majority of the plea agreement to Dye verbatim except for summarizing the information about withdrawing from the plea. The trial court told Dye that it would go over the guilty plea with Dye and that Dye should stop the court if he had any questions. Dye was sworn in.
Dye denied that his judgment was impaired, that he had any mental disease or defect, or that he had any questions for counsel. He agreed he told counsel everything he knew about the case and that discovery was shared with him, including seeing all the DVDs. Dye agreed that after his conversations with counsel, he decided it was in his best interest to enter a plea, he was satisfied with the advice of his counsel and he did not need additional time to talk to his counsel. The trial court explained to Dye that he had constitutional rights that only he could waive, he did not have to enter a guilty plea, he had a right to a trial by jury, the Commonwealth had to prove his crimes beyond a reasonable doubt, he had a right to competent counsel, his counsel could question witnesses and he had the right to an appeal. After Dye acknowledged he understood, the trial court explained the plea agreement in detail, including that Dye would receive a thirty-year sentence with eligibility for parole after twenty years, he was required to complete a treatment program, he was subject to a mandatory five-year conditional release and if he did not plead, he could receive a sixty-year sentence or life in prison but would be eligible for parole in twenty years. Dye agreed he had not been threatened to plead and no other promises besides what was contained in the plea agreement had been made to him. Dye then entered individual pleas of guilty to each charge.
In Dye's written plea agreement, Dye entered a plea of guilty on all charges in exchange for a recommendation by the Commonwealth that on the rape, sodomy and burglary charge he serve twenty years enhanced to thirty years as a PFO-2, for a total sentence of thirty years. In the order on plea of guilty which he and his attorney signed, Dye stated that his judgment was "not now impaired by drugs, alcohol, or medication[,]" he had reviewed the indictment and told his attorney all facts known to him concerning his charge and believed his attorney was fully informed about his case: "We have fully discussed, and I understand, my charges and any possible defenses to them. I am satisfied with the advice my attorney has given me, and I have had all the time I wish to confer with my attorney." Dye acknowledged the rights he was giving up by pleading guilty. He acknowledged that under the original charges he could be sentenced to sixty years or life in prison with parole eligibility after twenty years. Dye stated: "Because I am guilty and make no claim of innocence, I wish to plead 'GUILTY.'" He also stated: "I declare my plea of 'GUILTY' is freely, knowingly, intelligently and voluntarily made, that I have been represented by competent counsel, and that I understand the nature of this proceeding and all matters contained in this document."
The recommendation also specifically stated Dye was not to have any probation/shock probation/conditional discharge until service of twenty years and would comply with statutory requirements based on his status as a sexual offender and specified what those were.
The final sentencing was delayed for a presentence investigation and comprehensive sex offender presentence evaluation.
On January 31, 2012, a letter Dye wrote was filed with the trial court. It stated that at the time Dye pled guilty, he was not comfortable with the time he had with his lawyer. Dye stated his lawyer was not fighting hard enough for him, thirty years was a lifetime and he wanted another lawyer. He stated "I no [sic] I did bad please give me something I can do." He also stated that he was in jail for seventeen months, needed to get this over with and needed to get on with his life and get out of jail.
Dye stated that he had been sentenced, but not finally sentenced, which we believe is a reference to his guilty plea.
On March 1, 2012, the judgment and sentence on plea of guilty was entered and Dye was sentenced in accordance with the plea agreement.
On August 28, 2013, Dye filed a motion to vacate, set aside or correct his judgment and sentence pursuant to RCr 11.42 and RCr 10.26 and requested an evidentiary hearing and appointment of counsel. Dye alleged trial counsel did not explain the significance of entering a plea to him (that he would be a registered sex offender for the rest of his life, that he would not be eligible for parole until completing a sex offender course in prison and that he would be on conditional discharge after released from prison), used scare tactics on him and, after she got him to accept the plea deal, told him "to keep his mouth closed when they went before the judge if he knew what was best for him." He alleged counsel failed to advise him of the facts and law of the case, but acknowledged pleading guilty in open court and stating that his admission was voluntary.
Dye argued counsel erred by failing to inquire into his mental stability by conducting an in-depth interview with him before allowing him to plead. He contends he lacked the psychological and mental capacity to understand the decision to plead guilty and counsel coerced him to accept a guilty plea by convincing him that if he did not plead guilty, he would spend the rest of his life in prison. Dye argued if counsel had inquired further, counsel would have requested that he be evaluated by a medical psychologist prior to allowing him to accept the plea offer.
Dye argued his counsel erred by failing to file a motion to suppress his coerced confession. He admitted voluntarily going with the police to the station and telling them he engaged in consensual sex with the victim but argued the police forced him to admit that he raped the victim.
Dye argued counsel should have moved to suppress the victim's photo line-up identification which she was coached to make. He argued counsel erred in failing to interview the victim to get her statement, discover whether the sex was consensual and how she finally picked him out of the line-up.
Dye argued he had consensual sex with the victim but that the victim was angry he refused to stay the night afterwards and that was the reason she called the police. He claimed the victim purposely had trouble picking him out of a photo line-up even though she knew him, because she had come to her senses but finally picked him out because the police pressured her to do so against her will.
Dye was appointed counsel and counsel elected to have the matter submitted on Dye's pro se pleadings. The circuit court granted Dye an evidentiary hearing to address the extent of the relationship between trial counsel and Dye, and limited the hearing to "why the defendant's specific allegations cited in his Motion to the Court are just now being raised; the willingness of trial counsel to prepare a defense of consent, contest an improper confession or improper photo line-up, and the sufficiency of advisement by trial counsel of the law as it related to the defendant's case."
Trial counsel, Dye and Detective Wilson testified, and Dye's letter to the judge and the Commonwealth's previous plea offer of forty years were admitted as exhibits. Trial counsel testified they had a good relationship, she met Dye at least four times at jail and met with him before every court appearance and he met with the investigator multiple times. She investigated his mental health and he had three competency evaluations. Trial counsel testified she obtained the third evaluation by Dr. Drogin after the initial finding of competency and she obtained Dye's school records. KCPC opined he was malingering and Dr. Drogin's opinion would not have benefited Dye.
Trial counsel testified she was aware that during Dye's confession, he claimed the sex was consensual before admitting to the crimes but Dye never told her it was consensual, and she would have pursued such a defense if he had. Trial counsel testified Dye was very emotional and not realistic about the time he was facing, he wanted probation and then as little time as possible. She was concerned he could easily be coerced so she was especially careful not to tell him what to do. She did not see any suppression issues and thought pursuing a worthless motion would not aid in plea negotiations. She was able to get the Commonwealth's initial offer of forty years reduced to thirty years.
Dye testified he talked with trial counsel about the charges, he knew he was facing life in prison and asked for as much help as trial counsel could give him. He asked her to investigate the victim and trial counsel refused. He wanted the victim investigated because he thought she looked at him when he was sitting on his front porch and she walked around with no underwear. Dye testified he was not comfortable with trial counsel because she was a woman and knew the prosecutor and judge. He would not have taken the plea if he did not feel that way. If a motion to suppress had been filed and was successful, he would have gone to trial. Dye testified the relief he was seeking was less time and he would have pled guilty if given less time.
Dye testified when he agreed to go to the station he was driven in the police car with no handcuffs and was placed in a room with a table and chairs. He testified he did not feel free to leave. They gave him a cigarette but no lighter and he was not given one when he asked. He asked for an attorney, but no attorney appeared.
Dye would not respond to questions about why he pled guilty and what he meant by the comment in his letter that he "did bad." Dye testified he did not know why he told Dr. Perry at KCPC that "he was sorry he did this and knew he messed up."
Dye testified he told his trial counsel that the sex was consensual. After he asked the victim for toilet paper, she grabbed him by the wrist and when he said, "I'd better get out of here" she responded, "no, stay awhile, stay with me" and then they had sex. He denied attacking her, but later admitted that he may have struck her.
Detective Wilson testified he investigated the victim's report of rape and identified Dye as a possible suspect because he matched the victim's description and lived where she believed her assailant did. The victim described Dye as a light-skinned black man with a pockmarked face. She was an art student and sketched his likeness on a dry erase board. Detective Wilson testified the victim had bruises and her appearance was consistent with her statement.
Detective Wilson testified Dye was cooperative and agreed to go to the police station with him. He testified he informed Dye that he was not under arrest and could leave at any time. Dye sat in the front of Detective Wilson's unmarked car with no handcuffs. Detective Wilson testified he never raised his voice to Dye, he never threatened him and he was dressed in plain clothes. At the station, he again advised Dye he was free to go and an audio recording was made of his interview with Dye. He offered Dye drinks and cigarettes. Dye confessed approximately a half hour after the interview began.
Detective Wilson testified Dye's story of what occurred evolved over time. Initially, Dye denied interacting with the victim but later told him he knocked on his neighbor's door at about 2:00 a.m. asking for toilet paper. He then told Detective Wilson the victim invited him in, asked him to stay and said, "she wanted it."
Detective Wilson testified he told Dye that he did not believe his story and told Dye what the victim said occurred. Detective Wilson testified Dye denied striking the victim but admitted grabbing her arm. Detective Wilson testified Dye told him that he "wanted some," she said "no," and he admitted to then performing oral sex on the victim and raping her. Detective Wilson testified Dye said the victim kept asking him to hurry up and said "no" two times. Detective Wilson testified he asked Dye why the victim did not fight him and Dye told him it was because she was scared. Dye asked him to turn off the recording so they could talk off the record, he did, and then Dye told him that he was using crack cocaine that night and blanked out. Detective Wilson testified that when he left the room after Dye confessed and the recording was still running, Dye said that he did not intend to do it, he was sorry and he did a bad thing.
Detective Wilson testified after Dye confessed, he read Dye his Miranda rights and placed him under arrest. Dye waived his rights and never asked for an attorney. Dye then continued to make additional incriminating statements.
The circuit court denied Dye's motion, determining trial counsel was not ineffective for failure to investigate where: the victim's statement to the police was that Dye knocked on her door in the middle of the night and asked for toilet paper and when she returned to her door to give it to him, he forced his way into her home and raped her; in Dye's statement to the police he initially claimed the victim consented but then admitted to raping her; and during Dye's guilty plea he admitted he forced entry into victim's apartment with the intent of raping her and he did rape and sodomize her. The circuit court noted that while Dye's testimony at the evidentiary hearing was that the encounter with the victim was consensual, his testimony was refuted by the testimony of Detective Wilson and not communicated to trial counsel based on her testimony. The circuit court also noted trial counsel testified she would have been willing to pursue a defense of consent if Dye had advised her that was his desire, but his concern was always the reduction of his sentence in exchange for a plea of guilty. The circuit court opined trial counsel was extraordinarily effective in reducing Dye's sentence from the initial offer of forty years to thirty years and Dye's letter to the trial court was also concerned with reducing his sentence rather than asserting his innocence or stating that trial counsel was unwilling to mount a defense. Additionally, the circuit court noted that at the evidentiary hearing Dye admitted he would have entered a plea if offered less time and was seeking relief in the form of a reduction in his sentence.
The circuit court found Dye's allegation that his trial counsel failed to investigate was not supported by the record where an interview with the victim was unnecessary to effectively represent him. The circuit court stated:
Trial counsel cannot be held at fault for declining to pursue a defensive strategy that the movant himself contradicted in his statements to police and never communicated to his attorney. Additionally, the movant has presented no evidence that an interview of the victim in this matter would have yielded any defensive benefit. . . . [and] movant's assertion of consensual sexual contact by the movant was not and is not credible.
The circuit court found trial counsel was not ineffective for failing to file pretrial motions to suppress because an unconditional guilty plea waives this defense. Additionally, the only purpose in challenging the victim's failure to identify Dye in a photo lineup would be to establish that Dye was not the person who raped her, but since Dye acknowledged sexual contact with her any assertion that his identification was tainted is moot.
As to Dye's statement to the police, the circuit court concluded Dye failed to establish his interview was custodial. The circuit court declined to draw the conclusion that the lack of a lighter exerted a coercive force on Dye and determined there was no constitutional justification for a suppression of Dye's statement to the police and trial counsel could not be deemed ineffective for failing to file a baseless motion to suppress. The circuit court further concluded that even if the identification and statements were suppressed, Dye had not proven it would have resulted in a different outcome given the statements of the victim and Dye's acknowledgment of sexual contact with the victim.
The circuit court found Dye's argument that trial counsel coerced him to enter a guilty plea and Dye was incompetent to enter a guilty plea was directly and wholly contradicted by the record. The circuit court recounted the history of Dye's competency evaluations and noted trial counsel took the additional steps of securing Dye's school records and an additional evaluation by Dr. Drogin, but his findings would not have been beneficial to Dye's defense. The circuit court noted trial counsel testified she took special care not to interact with Dye in a way that might exert undue pressure.
Finally, the circuit court found Dye received a very favorable plea bargain considering the very strong evidence against him and the detailed plea colloquy established that Dye was capable of and did understand his legal situation and the consequences of his plea.
Dye appealed and now proceeds pro se after the Court of Appeals granted the Department of Public Advocacy's motion to withdraw as counsel pursuant to Kentucky Revised Statutes (KRS) 31.110(2)(c) and allow Dye to file a pro se brief.
To be entitled to relief on [the ground that his plea was invalid], an RCr 11.42 movant must allege with particularity specific facts which, if true, would render the plea involuntary under the Fourteenth Amendment's Due Process Clause, would render the plea so tainted by counsel's ineffective assistance as to violate the Sixth Amendment, or would otherwise clearly render the plea invalid.Stiger v. Commonwealth, 381 S.W.3d 230, 234 (Ky. 2012).
The Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test as modified, establishes the standard of review for ineffective assistance of counsel involving a guilty plea. It requires the defendant to establish: (1) counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) 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 pled guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001).
An evidentiary hearing is required to resolve disputed material issues of fact. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). "If an evidentiary hearing is held, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel." McGaha v. Commonwealth, 469 S.W.3d 841, 846 (Ky.App. 2015). During an evidentiary hearing, the lower court "is in the superior position to judge witness credibility and the weight to be given to witness testimony. Such judgment is critical in a Strickland analysis to determine whether [a defendant] has shown 'demonstrable prejudice' resulting from his counsel's error." Commonwealth v. Lawson, 454 S.W.3d 843, 847 (Ky. 2014) (internal citation omitted).
"A reasonable probability exists [that the defendant would not have pled guilty, but would have insisted on going to trial] if the defendant convinces the court 'that a decision to reject the plea bargain would have been rational under the circumstances.'" Padilla v. Commonwealth, 381 S.W.3d 322, 328 (Ky.App. 2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)). The defendant must "demonstrate that he rationally would have insisted on a trial, not that an acquittal at trial was likely." Id.
Dye argues the circuit court erred by and/or abused its discretion by: (1) failing to address his first three arguments, that he received ineffective assistance of counsel during his guilty plea process where counsel failed to prepare a defense, coerced him to plead guilty and failed to file meritorious motions; (2) determining his right to suppress was waived by his plea; (3) determining he was in not in custody where the reasonable person standard should not apply to him in making this determination because he does not function as a reasonable person based on his mental capacity; (4) ruling he confessed where at most he stated he had "done wrong" but never confessed to non-consensual sexual contact; and (5) ruling his counsel was adequate where his counsel failed to put in the extra effort to make sure he understood his rights. Dye alternatively argued this appeal should be held in abeyance until his pending Kentucky Rules of Civil Procedure (CR) 60.03 and CR 61.02 motions are adjudicated.
Dye's argument stated the circuit court erred by failing to address his first three arguments but failed to state what these arguments were. Therefore, we assume they are the first three arguments given by heading in his memorandum of law in support of his RCr 11.42 motion.
We disagree that the circuit court ignored Dye's first three arguments. The circuit court resolved any factual dispute regarding these issues against Dye in finding his trial counsel was effective, non-coercive and there were no meritorious motions to pursue. The circuit court did not err in finding trial counsel: prepared the defense that Dye wanted, to negotiate for the least amount of time possible; safeguarded his rights, strategizing about how to be most effective in obtaining a favorable sentence; and was effective in obtaining a reduced sentence of thirty years compared with the Commonwealth's initial offer of forty years and the potential time Dye was facing of sixty years. As explained in Glass v. Commonwealth, 474 S.W.2d 400, 401 (Ky. 1971) and Russell v. Commonwealth, 992 S.W.2d 871, 875-76 (Ky.App. 1999), it can be appropriate trial strategy for trial counsel to encourage a defendant to plead guilty and act to negotiate a favorable plea agreement for the defendant to avoid the potential for greater punishment where a conviction is likely considering the evidence.
We agree with the circuit court that Dye's right to pursue a motion to suppress was waived by his plea unless he had a basis for withdrawing from his plea. However, the circuit court did not find that Dye had a basis for withdrawing from his plea based on its consideration of trial counsel's testimony and the plea colloquy, and its determination that Dye's testimony was not credible.
"As to the voluntariness of the plea, the test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant." Id. at 876. Typically, a defendant's motion for post-conviction relief from a claimed involuntary plea may be refuted by the record based on the plea colloquy. See Beecham v. Commonwealth, 657 S.W.2d 234, 236-37 (Ky. 1983); Glass, 474 S.W.2d at 401. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (U.S. 1977). Even a claimed secret plea agreement only can give rise to the need to have an evidentiary hearing and does not establish conclusively that in fact a plea was involuntary. See Fraser, 59 S.W.3d at 457-58.
At Dye's plea colloquy, the trial court went to great lengths to make sure that Dye's plea was made knowingly, intelligently and voluntarily. The trial court even initially granted Dye an additional day to think about the plea and the following day asked Dye to interrupt if he had any questions or concerns. Dye specifically agreed he was satisfied with the advice he received from counsel and was not threatened with anything other than the possible sentence he could face to induce him to plead guilty. While Dye may now be unhappy with the choice he made among the choices available to him, "[t]here was nothing in the record indicating that [Dye] failed to understand his constitutional rights or the terms of his plea." Russell, 992 S.W.2d at 876.
Dye's repudiation of his own testimony during the plea colloquy in his post-conviction motion is not sufficient to establish that his plea was not made knowingly, intelligently and voluntarily where the circuit court did not find his testimony at the evidentiary hearing to be credible, there was no good reason provided as to why he would have lied at the evidentiary hearing and his trial counsel testified Dye was fully informed and she avoided influencing him.
We also agree with the circuit court that because Dye's confession occurred before he was in custody, he did not need to be given Miranda warnings and his counsel could not be ineffective for failing to bring a frivolous motion to suppress. Miranda warnings are only required where a suspect is "in custody" and "[a]s [the United States Supreme Court has] repeatedly emphasized, whether a suspect is 'in custody' is an objective inquiry." J.D.B. v. North Carolina, 564 U.S. 261, 270, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). "The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave." Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006). "The test . . . involves no consideration of the 'actual mindset' of the particular suspect subjected to police questioning." J.D.B., 564 U.S. at 271, 131 S.Ct. at 2402.
By limiting analysis to the objective circumstances of the interrogation, and asking how a reasonable person in the suspect's position would understand his freedom to terminate questioning and leave, the objective test avoids burdening police with the task of anticipating the idiosyncrasies of every individual suspect and divining how those particular traits affect each person's subjective state of mind.Id. "Some of the factors that demonstrate a seizure or custody have occurred are the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police." Lucas, 195 S.W.3d at 405-06.
In applying the reasonable person standard, it is evident that Dye was not in custody because the testimony from both Detective Wilson and Dye indicates that none of the typical factors which could demonstrate custody were present for either Dye's trip to the police station or interview. Therefore, a motion to suppress would have no merit and Dye's counsel cannot be ineffective for failing to pursue a meritless motion, especially where Dye failed to indicate he was innocent or wished her to pursue any other strategy than reducing the length of his overall sentence.
There was sufficient evidence to support the circuit court's finding that Dye confessed to raping the victim during his interview with police. Whether or not he explicitly confessed at that time, he did acknowledge his guilt when he pled guilty.
Ultimately, we are not persuaded that even if trial counsel was ineffective, that it would have been rational for Dye to withdraw from his plea agreement and face a possible sentence of sixty years, given the victim's statement and his confession. Although Dye indicated that without counsel's errors and misadvice he would not have accepted the plea and would have proceeded to trial, the circuit court found that based on trial counsel's and Dye's testimony, Dye received appropriate advice given his situation and the strategy he wished to pursue, and was only seeking a further reduction in his sentence rather than to proceed to trial. Dye's own testimony shows that proceeding to trial would not be a rational decision, which is why he sought a different remedy when asked about the relief he wanted.
Accordingly, we affirm the Warren Circuit Court's order denying Dye's motion for RCr 11.42 relief from his plea agreement after an evidentiary hearing.
ALL CONCUR. BRIEF FOR APPELLANT: Eric M. Dye, Pro Se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky