Opinion
NO. 2012-CA-000269-MR
06-21-2013
SAMUEL TYRONE MCCARY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Bishop Elizabethtown, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 01-CR-00069
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE AND NICKELL, JUDGES. MOORE, JUDGE: Samuel Tyrone McCary appeals the Graves Circuit Court's order denying his RCr 11.42 motion to vacate his sentence and his CR 60.02 motion for relief from judgment. After a careful review of the record, we affirm because his RCr 11.42 claims lack merit and his CR 60.02 motion was improper.
Kentucky Rule(s) of Criminal Procedure.
Kentucky Rule(s) of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
McCary was indicted on the charge of murder, a capital offense, pursuant to KRS 507.020, for the murder of Lisa Halvorson. The Commonwealth tendered an offer on a plea of guilty to McCary. The offer provided that if McCary entered a guilty plea to the amended charge of complicity to murder (a capital offense under KRS 502.020) and if he truthfully recited the facts concerning the murder, then the Commonwealth would recommend that his punishment should be life imprisonment without parole for twenty-five years. McCary moved to enter a guilty plea in accord with the Commonwealth's offer, and the circuit court sentenced McCary to life imprisonment without parole for twenty-five years.
Kentucky Revised Statute(s).
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Almost three years later, McCary filed a CR 60.02(e) and (f) motion claiming that the facts were insufficient to support his conviction for complicity to murder and that counsel knew or should have known that they were insufficient. On the same day that he filed his CR 60.02 motion, McCary filed an RCr 11.42 motion, asserting the same claims he had raised in his CR 60.02 motion.
The circuit court held an evidentiary hearing concerning McCary's motion. Thereafter, the court denied McCary's RCr 11.42 and CR 60.02 motions.
McCary now appeals, contending that: (a) the circuit court erred in denying his RCr 11.42 and CR 60.02 motions because there was insufficient evidence to support his conviction and because counsel was ineffective when counsel permitted him to enter a guilty plea despite the insufficiency of the evidence; and (b) the circuit court's findings are not supported by the record because neither trial counsel nor McCary's co-defendant were called to testify during the evidentiary hearing.
II. ANALYSIS
A. CIRCUIT COURT'S DENIAL OF RCr 11.42 AND CR 60.02 MOTIONS
McCary first alleges that the circuit court erred in denying his RCr 11.42 and CR 60.02 motions because there was insufficient evidence to support his conviction. He further contends that the court erred in denying his motions because counsel was ineffective when counsel permitted McCary to enter a guilty plea despite the insufficiency of the evidence.
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
Regarding McCary's claim that there was insufficient evidence to support his conviction, "[t]he general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense." Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994) (citation omitted). Additionally, "an attack upon a verdict of conviction on the ground that it was not supported by the evidence is not one that can be presented by RCr 11.42." Boles v. Commonwealth, 406 S.W.2d 853, 855 (Ky. 1966).
Regardless, to the extent that McCary's claim may be interpreted as a claim that his guilty plea was invalid because it was not voluntarily and intelligently entered, we disagree. McCary's motion to enter a guilty plea stated that he was pleading guilty because he was guilty and because he made no claim of innocence. The motion specified all of the rights McCary was waiving by pleading guilty and it stated that his attorney had fully discussed the charges and defenses thereto with McCary. Additionally, during his plea colloquy, the court thoroughly reviewed the constitutional rights which McCary was waiving by entering his guilty plea. The court asked McCary if he had been threatened into entering his plea, to which McCary responded in the negative. Both McCary and trial counsel were asked by the court whether counsel had reviewed with McCary the rights he was waiving, the charges against him and any defenses thereto, and both McCary and his counsel answered affirmatively. The court even asked counsel if he had reviewed "each and every element" of the charge with McCary, to which counsel responded that he had done so "many times." The circuit court asked McCary whether he was impaired with alcohol, drugs, or medication at the time of his plea colloquy, to which McCary responded in the negative. Trial counsel asked McCary a series of five questions concerning the facts supporting his guilty plea, during which McCary admitted that he had participated with Steve England in the events that resulted in Lisa Halvorson's death. Thus, this claim lacks merit because McCary's guilty plea was entered voluntarily, intelligently, and knowingly.
McCary also alleges that he received the ineffective assistance of counsel when counsel permitted him to enter a guilty plea despite the alleged insufficiency of the evidence.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (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.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (quotation marks omitted).
Because McCary's claim that there was insufficient evidence to support his conviction lacks merit, he cannot show that his counsel rendered ineffective assistance in allowing him to enter a guilty plea to the charges. This is particularly true considering that McCary admitted during the plea colloquy that he had participated in the events which resulted in Lisa Halvorson's death. Further, the charge McCary was originally indicted with, i.e., murder, carried the possibility of the death penalty as a sentence, whereas his guilty plea to the amended charge of complicity to murder resulted in McCary being sentenced to life imprisonment without parole for twenty-five years. Thus, McCary's ineffective assistance of counsel claim fails.
McCary also filed his claims in the circuit court pursuant to CR 60.02. On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id. "A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further alleges special circumstances that justify CR 60.02 relief." White, 32 S.W.3d at 86 (internal quotation marks and citation omitted).
Because McCary was able to and did raise his claims in his RCr 11.42 proceeding, he cannot also raise them in a CR 60.02 proceeding. Consequently, the circuit court did not abuse its discretion in denying his CR 60.02 motion.
B. WHETHER FINDINGS WERE SUPPORTED BY THE RECORD
Finally, McCary claims that the circuit court's findings are not supported by the record because neither trial counsel nor McCary's co-defendant were called to testify during the post-conviction evidentiary hearing. However, as discussed supra, the court's denial of McCary's motions was supported by the record. Therefore, this claim lacks merit.
Accordingly, the order of the Graves Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Robert C. Bishop
Elizabethtown, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky