Opinion
NO. 2012-CA-001219-MR
03-07-2014
ROBERT HAYES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert Hayes, Pro Se Ashland, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 90-CR-002097
OPINION
AFFIRMING
BEFORE: LAMBERT, THOMPSON AND STUMBO, JUDGES. STUMBO, JUDGE: Robert Hayes, pro se, appeals from an Opinion and Order of the Jefferson Circuit Court denying his motion for post-judgment relief from a criminal judgment. Hayes appears to argue that his guilty plea was not voluntary, and that he filed no written waiver of his rights at the time the plea was entered. He also contends that his second conviction, wherein he entered a plea of guilty to one count of reckless homicide, improperly stated that he "intentionally shot" and killed the victim. We have closely examined the record and the law, and find no error in the Opinion and Order on appeal.
In 1991, the Jefferson Circuit Court indicted Hayes on one count of Murder and one count of Wanton Endangerment in the First Degree. The matter was tried before a jury, which convicted Hayes on the lesser included offense of reckless homicide. He was sentenced to five years in prison. The Kentucky Supreme Court later reversed his conviction upon finding that the trial court failed to instruct the jury on Hayes' claim of self defense. On remand, Hayes entered a plea of guilty to one count of reckless homicide. He received a five year sentence to run concurrently with a separate 10 year sentence in 92-CR-3261.
In 2012, Hayes was apparently housed in a federal correctional facility when he mailed to the Jefferson Circuit Court Clerk various pleadings relating to the instant conviction. Those pleadings, which did not cite either CR 60.02 or RCr 11.42, were adjudicated by the Jefferson Circuit Court as a "Petition for Post Conviction Relief". In those pleadings, Hayes argued that the Commonwealth was required to re-indict him after the Kentucky Supreme Court remanded the matter for a new trial. He also argued that his trial counsel was ineffective, in that counsel was coercive and unprepared which led Hayes to accept the plea offer. In rejecting these arguments, the court cited both CR 60.02 and RCr 11.42 in concluding that Hayes had failed to demonstrate the ineffectiveness of counsel. Additionally, the court relied on RCr 8.18 for the proposition that the failure to raise an objection to the indictment on remand constituted a waiver thereof. It then rendered an Opinion and Order denying the relief sought. This appeal followed.
We first note that the Commonwealth states that it has been unable to locate Hayes in the Kentucky Department of Corrections system, and that his last known address was the Federal Medical Center in Lexington, Kentucky. It contends that if Hayes is currently prosecuting a post-conviction appeal of a conviction and five year sentence that was rendered almost 20 years ago, and because his person cannot be located in the Kentucky Department of Corrections system, the matter is untimely and moot, and must be dismissed. While the Commonwealth makes a compelling argument on this issue, we will briefly consider the merits of Hayes' appeal and dispose of the arguments contained therein.
As best we can discern from Hayes' pro se written argument, he first appears to argue that his guilty plea was not voluntarily made. He claims that no guilty plea colloquy is found in the record, and that no written waiver of rights was filed into the record. As a consequence, he contends that the trial court was "without subject matter jurisdiction to either accept the defendant's plea or to pass sentence on him."
The Opinion and Order on appeal does not address this specific contention. Rather, the circuit court characterized Hayes' argument as a claim of ineffective assistance as it appears that Hayes argued below that his trial counsel coerced him into accepting the plea offer. In addressing this contention, the court determined that Hayes failed to establish a claim of ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the court determined that contrary to Hayes' contention that his counsel was coercive and unprepared, Hayes' counsel represented him throughout the trial and appellate proceedings and was intimately familiar with the case. The court found that Hayes failed to allege facts which if true would justify the extraordinary relief sought, and ultimately noted that the guilty plea produced a concurrent sentence which resulted in no additional prison time to Hayes' pre-existing sentence on the unrelated charges.
We find no error on this issue. A reviewing court must look to the totality of the evidence and presume that counsel rendered effective assistance. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). That is to say, the burden rests with the movant to overcome the presumption of effective assistance. Id. Hayes bore the burden of demonstrating that his trial counsel made serious errors resulting in a performance outside the range of professionally competent assistance guaranteed by the Sixth Amendment, and that the deficient performance prejudiced the defense so seriously that there is a reasonable likelihood that the outcome of the trial would have been different but for the deficient performance. Strickland, supra. Even if counsel's performance was deficient, which we do not find to be the case, Hayes has not demonstrated that but-for the alleged deficient performance, the outcome of the proceeding would have been different. Again, Hayes' plea resulted in a sentence which ran concurrently with another sentence he was already serving. Short of securing a not guilty verdict, the judgment and sentence imposed was the best possible outcome because it produced no additional prison time. Hayes has not met his burden of overcoming the presumption of effective assistance, and we find no error.
Hayes also makes a strained argument that the second Judgment and the Opinion and Order on appeal should not have contained the language that he "intentionally shot" the victim. However, it is uncontroverted that Hayes did intentionally shoot the victim, and he never disputed this fact. Rather, Hayes claimed below, at least prior to the entry of his guilty plea, that he fired in self-defense. However, the act of pleading guilty waives all defenses. Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994). Additionally, CR 60.02 and RCr 11.42 are not intended as opportunities to relitigate issues which were or should have been raised on direct appeal. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Ultimately, we find no basis for concluding that the circuit court's usage of the phrase "intentionally shot" is erroneous or otherwise improper, and we find no error on this issue.
For the foregoing reasons, we Affirm the Opinion and Order of the Jefferson Circuit Court denying Hayes' motion for post-judgment relief.
ALL CONCUR. BRIEF FOR APPELLANT: Robert Hayes, Pro Se
Ashland, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky