Opinion
NO. 2015-CA-001804-MR
05-19-2017
MICHAEL TERRANCE FUGATE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 05-CR-00076 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Michael Terrance Fugate appeals from an order of the Letcher Circuit Court finding his motions filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02 were untimely. Because his motions were not timely filed, we affirm.
Fugate was tried and convicted of second-degree assault and complicity to first-degree sexual abuse and sentenced to fifteen-years' imprisonment. He filed a direct appeal to this Court resulting in an unpublished opinion, Fields v. Commonwealth, 2006-CA-002365-MR, 2008 WL 4683001, 1 (Ky. App. 2008) (unpublished) (footnotes omitted), wherein the facts are recited as follows:
Coy McClain was arrested on December 2, 2004, and was taken to the Letcher County Jail. McClain testified that after arriving at the jail, he informed the jail staff that he had conflicts with inmates Ricky Bates and appellant Robert L. Fields. Still, McClain was placed in a cell with Fields, appellants Michael Fugate and David Lucas, and Frank Campbell. The cell was comprised of a common area and four "lockdown" cells, each containing two bunks.
McClain further testified that on December 5, he stepped into a lockdown cell with Fugate, Lucas, and Campbell to inquire about a possible card game since the men had previously played cards together in the jail. Lucas closed the cell door, locking it, and Fugate and Lucas began hitting McClain. Lucas pulled down McClain's pants and threatened to sodomize him. Further, Campbell sat on his bunk with his penis exposed and talked about McClain fellating him, while Fugate and Lucas pushed McClain's head toward Campbell's penis. At some point, McClain's face touched Campbell's penis. Meanwhile, Fields, who was in the common area, turned up the television's volume and made other noise, and he pointed and laughed at McClain. McClain testified that he screamed "to the top of his lungs" for help but that he was not able to exit the lockdown cell for three to four hours. The men would not permit McClain to alert the guards, threatening to kill him if he did so.
Nevertheless, some time later McClain returned to the lockdown cell to get his dropped cigarettes. Someone
again closed the door, and Fields hit McClain, rubbed his penis across McClain's face, and tried to force McClain to fellate him. Some four hours later, McClain exited the lockdown cell and told the guards that he had been beaten.This Court affirmed and Fugate filed a motion for discretionary review with the Kentucky Supreme Court. An order denying review by the Supreme Court was entered on June 17, 2009.
McClain was taken to the hospital where facial x-rays revealed that nothing was broken; he was then taken back to jail. After he was released on bail, McClain saw other doctors who informed him that he had a fractured and dislocated condyle, a hinge-like bone structure at the upper end of the jaw near the ear. McClain subsequently underwent surgery in which a titanium plate and screws were used to secure the bone.
Fields, Fugate, and Lucas were eventually indicted for attempted first-degree sodomy and complicity to commit second-degree assault. The matter proceeded to trial where McClain testified as set forth above. Additionally, Lucas, jail personnel, and treating doctors testified. The jury found all three men guilty of complicity to commit second-degree assault, and complicity to commit first-degree sexual abuse. Fields, Fugate, and Lucas were sentenced, respectively, to a total of fifteen, fifteen, and ten years' imprisonment.
On Monday, June 25, 2012, Fugate mailed a pro se RCr 11.42 motion from the Eastern Kentucky Correctional Complex. In his motion, he alleged various grounds for relief based on ineffective assistance of counsel: failure to investigate and prepare a defense; failure to call certain witnesses; failure to request severance and separation of trials; failure to disclose counsel's prior acquaintanceship with a former Kentucky State Trooper; failure to request a change of venue; failure to move for a mistrial due to a sleeping juror; failure to impeach a Commonwealth's witness; failure to object; failure to poll the jury; failure of appellate counsel to submit claims of palpable error; and cumulative error. On June 27, 2012, the Letcher Circuit Court clerk file-stamped the motion and supporting papers.
On July 11, 2012, the prosecution sought to dismiss Fugate's motion as untimely because it was filed more than three years after his judgment was final on June 17, 2009, when discretionary review was denied. The Commonwealth also raised a laches defense because "at least" one of its material witnesses was deceased.
On July 15, 2012, the trial court appointed the post-conviction branch of the Department of Public Advocacy (DPA) to represent Fugate and gave the DPA thirty days to investigate Fugate's allegations and supplement his filings if necessary. Pursuant to an agreed order between newly appointed counsel and the Commonwealth, that deadline was extended to December 31, 2013.
On December 30, 2013, Fugate's counsel filed a supplement to his RCr 11.42 motion. In addition to the claims in the original RCr 11.42 motion, three new claims were added: juror misconduct; failure to retain an expert witness; and failure to move for a mistrial. The motion also requested relief under CR 60.02(f) based on alleged perjured testimony by McClain at trial.
The Commonwealth filed a motion dismiss the CR 60.02(f) motion. On March 4, 2014, the Commonwealth filed a motion to dismiss the supplement to the pro se RCr 11.42 motion arguing it was untimely and precluded as a successive RCr 11.42 motion. The Commonwealth later filed a renewed motion to dismiss the pro se RCr 11.42 motion, its supplement and the CR 60.02 motion on the basis all were untimely.
Fugate responded. Although he acknowledged that his pro se RCr 11.42 motion was not filed within the three-year time limitation imposed by RCr 11.42(10), Fugate argued it was timely under the equitable tolling doctrine. He alleged that he was advised by DPA counsel that his time for filing his RCr 11.42 ran from the "finality" date noted on the Kentucky Court of Appeals step sheet, June 23, 2009, and not from the date the Supreme Court denied his motion for discretionary review. He also pointed out that he was moved from one prison to another just before the due date, further complicating his attempts to file in a timely manner. Fugate argued that under CR 15 his supplement related back to the time he filed his pro se RCr 11.42 motion.
The trial court ruled that the pro se RCr 11.42 motion was untimely and equitable tolling did not apply. It also ruled it was barred by laches because two deputy jailers who were witnesses died. As to the supplement, in addition to concluding that it was untimely, the trial court ruled it was a successive RCr 11.42 motion that raised new claims other than those asserted in the original pro se motion. The trial court dismissed the CR 60.02 motion as not filed within a reasonable time. This appeal followed.
We first address the timeliness of Fugate's pro se RCr 11.42 motion and supplement. CR 76.30(2)(b) provides that if a motion for discretionary review is denied by the Supreme Court, the opinion of this Court becomes final immediately upon denial of the motion. RCr 11.42(10) contains a three-year limitation providing as follows:
Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
. . . If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's opportunity to present relevant evidence to contradict or impeach the movant's evidence.
Untimeliness under the rule operates as a procedural bar to a motion and, therefore, unless Fugate can avoid its application, the trial court properly summarily denied his pro se RCr 11.42 motion and its supplement. Moorman v. Commonwealth, 484 S.W.3d 751, 757 (Ky. App. 2016). While we agree with Fugate that equitable tolling applies to post-conviction motions, we disagree that as alleged by him, the doctrine saves his untimely motion. Consequently, his supplement cannot be considered timely under the equitable tolling doctrine or the relation back doctrine under CR 15.
From 2005-2011, Kentucky law was settled that equitable tolling applied to post-conviction motions. In Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005), overruled on other grounds by Hallum v. Commonwealth., 347 S.W.3d 55 (Ky. 2011), the Supreme Court considered whether an inmate's untimely filing of an RCr 11.42 motion due to a delay in mailing by prison officials could be deemed timely through adoption of the prison mailbox rule or equitable tolling. The Court rejected the prison mail box rule in favor of the equitable tolling test. Robertson, 177 S.W.3d at 792.
After Robertson, RCr 12.04 was amended to adopt the prison mailbox rule. RCr 12.04(5) provides "the notice [of appeal] shall be considered filed if its envelope is officially marked as having been deposited in the institution's internal mail system on or before the last day for filing with sufficient First Class postage prepaid."
In Hallum, the Court addressed the effect of RCr 12.04(5) in the context of an inmate's notice of appeal. After determining RCr 12.04(5) should be applied retroactively, the Supreme Court addressed the continued applicability of the equitable tolling test. In doing so, the Court stated that the equitable tolling test in Robertson was now "duplicative and superfluous, with its utility marginalized." Hallum, 347 S.W.3d at 59. It continued, stating: "The prison mail box rule was crafted to remedy the procedural deficiency our rules posed to pro se inmates seeking to appeal; thus, there is no longer a need for Robertson's equitable tolling provision. Consequently, we overrule Robertson." Id.
After Hallum, the question arose as to how broadly the Supreme Court's language should be read and whether it overruled Robertson to the extent that it applied to post-conviction motions. In a series of unpublished opinions, this Court reasoned that the Supreme Court did not intend to overrule Robertson's adoption of equitable tolling for inmates filing RCr 11.42 motions but did so only as to notices of appeal. See Anderson v. Commonwealth, 2012-CA-001869-MR, 2014 WL 812886 (Ky. App. 2014) (unpublished); Treat v. Commonwealth, 2010-CA-002220-MR, 2012 WL 1886512 (Ky. App. 2012) (unpublished); Kollros v. Commonwealth, 2011-CA-002081-MR, 2012 WL 4839557 (Ky. App. 2012) (unpublished). In Treat, this Court explained: "Hallum ... did not prohibit the application of the tolling doctrine to RCr 11.42 motions that do not involve the prison mailbox rule. Therefore, we conclude that the equitable tolling doctrine still applies to post-convictions proceedings that meet strict standards of tolling relief." Treat, 2012 WL 1886512 at 2. Subsequently, this Court issued a published opinion on the matter.
Citing the reasoning in Treat, this Court held that the equitable tolling in the context of post-conviction proceedings was undisturbed by Hallum. Moorman, 484 S.W.3d at 754. However, the equitable tolling test is stringent requiring that the prisoner establish he or she has pursued his rights diligently, and an extraordinary circumstance stood in his or her way preventing timely filing. Id. at 757. To benefit from equitable tolling, both prongs must be shown. Id.
Not only is Moorman instructive on the effect of Hallum on equitable tolling in the context of an RCr 11.42 motion, it is instructive on the resolution of Fugate's claim that equitable tolling saves his untimely pro se RCr 11.42 motion. Unfortunately for Fugate, Moorman also teaches that mere attorney negligence will not warrant equitable tolling.
Quoting Holland v. Florida, 560 U.S. 631, 651-52, 130 S.Ct. 2549, 2564, 177 L.Ed.2d 130 (2010) with approval, this Court held: "A 'garden variety claim of excusable neglect,' such as a simple 'miscalculation' that leads a lawyer to miss a filing deadline does not warrant equitable tolling." Id. at 757. It is the rule in this jurisdiction that "[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel." Id. (quoting Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007).
Fugate's argument regarding the reason for his delay in filing his pro se RCr 11.42 motion is strikingly similar to that given in Moorman. He argues appointed counsel gave him erroneous advice as to when his time for filing commenced. Even if factually correct, he has not alleged an extraordinary circumstance sufficient to equitably toll the time limitation in RCr 11.42(10). Because his pro se RCr 11.42 motion was untimely, the supplement cannot relate back to that untimely motion.
Fugate's CR 60.02 motion is based on an affidavit submitted by Malinda Mason that the complaining witness, McClain, told her he lied under oath at trial. Although generally perjury is a grounds that must be brought within one year of the judgment, CR 60.02(c), in Commonwealth v. Spaulding, 991 S.W.2d 651, 657 (Ky. 1999), the Court concluded "that in the appropriate case the introduction of perjured testimony, which is not known as such by the prosecutor, can result in a violation of the right to due course of law and the right to due process of law as provided by the Kentucky and United States Constitutions" and "can be a reason of an extraordinary nature justifying relief pursuant to CR 60.02(f) and subject to the reasonable time limitation of the rule." While a claim of perjured testimony can be a reason of an extraordinary nature justifying relief under 60.02(f), Fugate has the "burden of showing within a reasonable certainty that perjured testimony was in fact introduced against him at trial." Id. at 654.
"What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). A trial court's direction is said to be abused only if the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Fugate did not file his CR 60.02 motion until more than two years after he and his counsel learned of Mason's statements that McClain's testimony was perjured. It would not only be reasonable for the motion to have been brought sooner but it was also within Fugate's control to bring the motion earlier to vindicate himself. Nevertheless, Fugate argues the two-year delay in filing the CR 60.02 motion was reasonable because Kentucky Innocence Project investigators and the DPA made a strategic decision to further investigate the alleged perjury before filing a motion.
Under the same reasoning applied in Moorman, we reject Fugate's contention that his delay should be excused because of counsel's decision to not file the motion sooner. There is no right to counsel in the CR 60.02 context, Gross, 648 S.W.2d at 857, and, therefore, counsel's decisions cannot excuse the tardiness of the motion. Moreover, even after over a two-year delay for the purpose of investigating the alleged perjury, Fugate has not provided any evidence in addition to Mason's affidavit to support his claim with reasonable certainty that McClain's testimony was perjured.
Based on the foregoing, the order of the Letcher Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky