Opinion
NO. 2017-CA-000623-MR
02-21-2020
RODNEY NEWCOMB APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rodney Newcomb, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Christopher Henry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 15-CR-00083 OPINION
DISMISSING
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BEFORE: CALDWELL, DIXON, AND MAZE, JUDGES. MAZE, JUDGE: Rodney Newcomb appeals the denial of his motion for RCr 11.42 relief in which he alleged that the assistance rendered by his counsel in the entry of a guilty plea was so ineffective as to require he be relieved from the effects of that plea. Because appellant is no longer in custody for the sentence from which he seeks relief, RCr 11.42 relief is not available. This appeal must therefore be dismissed.
Kentucky Rule of Criminal Procedure.
On October 8, 2015, appellant entered a guilty plea to charges of driving under the influence, first offense; possession of drug paraphernalia; and possession of a controlled substance in the second degree (amended down from a felony charge of possession of a controlled substance in the first degree). Prior to accepting the plea, the trial court extensively questioned appellant concerning his understanding of the rights he was waiving and as to why he thought a plea of guilt was his best option. Appellant responded that his family did not want him to have the felony charge on his record and that he believed that the amended possession charge in the Commonwealth's offer avoided that potentiality. Appellant also stated that "there's no way I could win with a DUI." During this colloquy, the trial judge emphasized that appellant should feel free to ask any questions he might have regarding the plea and/or the proceedings in general.
When appellant appeared for sentencing on November 2, 2015, his counsel requested a continuance in order to more fully investigate the ramifications of his plea. Counsel stated that because appellant was on parole at the time of the offenses culminating in his plea, confusion had arisen as to what his parole officer had told counsel and what she had told probation and parole concerning her intent to seek revocation of parole. At that point, the trial court stated that appellant might want to withdraw his plea, but his counsel suggested that discussion of that possibility wait until after she had an opportunity to discuss the matter with appellant's parole officer. Appellant did not object to or question that course of action.
On December 2, 2015, appellant again appeared for sentencing. Appellant's counsel at that time informed the court that his parole officer intended to seek revocation. The trial judge was also informed that appellant had violated the terms of his pretrial release and a bench warrant had been issued due to a failed drug test. Despite having witnessed the discussion concerning revocation, appellant made no request to withdraw his plea; to seek a delay in sentencing due to the possible parole revocation; or to even question the trial court regarding the impact of the guilty plea on his parole status. At that point, appellant was sentenced to 30 days for driving under the influence and 12 months on each of the drug charges to be served concurrently for a total of 12 months' imprisonment. Appellant was taken into custody at the conclusion of the sentencing hearing.
Approximately nine months later, on September 23, 2016, appellant filed an RCr 11.42 motion to vacate the final judgment of conviction alleging that his counsel: 1) failed to inform him of the collateral consequences of his plea in the revocation of his parole; 2) failed to file a motion to withdraw his plea; 3) failed to file a motion to suppress his blood test; 4) failed to seek an amendment of the DUI charge; and 5) failed to seek deferred prosecution. Appellant also alleged that the arresting officer threatened to call his parole officer if he refused the requested DUI tests; that he was not informed of his right to an independent blood test; and that he was not informed that he might receive enhanced penalties for future DUI charges. The trial court denied relief without a hearing on the basis that appellant's claims were conclusively refuted by the record. Appellant thereafter timely appealed to this Court contending that the trial court erred in failing to afford him a hearing on his motion and again reiterating essentially the same arguments he asserted below.
In response, the Commonwealth initially argues that appellant's right to challenge the denial of his motion for RCr 11.42 relief expired with the completion of the 12-month sentence imposed as a result of his plea. Because the judgment imposing the 12-month sentence was entered on December 7, 2015, and did not specify that it was to be served consecutively with any other sentence, we must conclude that appellant completed service of that sentence no later than December 2016. Thus, service of appellant's sentence precludes our review of the denial of relief which is no longer available or availing.
In Parrish v. Commonwealth, 283 S.W.3d 675 (Ky. 2009), the Supreme Court of Kentucky rejected the contention that an RCr 11.42 motion filed prior to the expiration of a sentence continues to be ripe for review when an appellant completes service of that sentence during the course of the appellate process. The Supreme Court explained the rationale underpinning its conclusion that service of the sentence renders moot any relief via RCr 11.42:
Further, we note that Parrish's argument fails to consider the remedy available under RCr 11.42. By its plain language, the rule is a mechanism by which the party "claims a right to be released" from his sentence. It is axiomatic that a person cannot be released from a sentence which has been completed. For these reasons, we conclude the Court of Appeals did not err when it found that Parrish, by virtue of having completed his sentence during the pendency of his appeal, could not seek appellate relief from the denial of his RCr 11.42 motion.Id. at 677.
This result is not altered by the fact that appellant's guilty plea triggered revocation of his parole from an unrelated sentence—a sentence for which he is presumably still incarcerated. As our Supreme Court observed in Commonwealth v. Thompson:
[I]t is mandatory that the defendant entering into a plea agreement have knowledge of the "relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). Yet, "[t]he defendant need only be aware of the direct consequences of the plea . . . the trial court is under no constitutional obligation to inform the defendant of all the possible collateral consequences of the plea." King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994) (citing Brown v. Perini, 718 F.2d 784, 788-89 (6th Cir. 1983)). In distinguishing between what constitutes a "direct" or "collateral" consequence of a plea, the result
"turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Cuthrell v. Dir. Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973).548 S.W.3d 881, 889-90 (Ky. 2018) (footnote omitted). Just as "[a] defendant's eligibility for parole is not a 'direct consequence' of a guilty plea the ignorance of which would render the plea involuntary[,]" Edmonds v. Commonwealth, 189 S.W.3d 558, 567 (Ky. 2006), a supervising officer's independent decision whether to seek revocation of parole cannot be considered a direct consequence of the entry of a plea. Because appellant has completed service of the sentence imposed upon his guilty plea, he is no longer in custody under the sentence from which he seeks relief. Appellate review of appellant's RCr 11.42 motion would not provide him with any meaningful relief because he can no longer be released from that sentence.
We emphasize, however, that not all defendants who receive relatively short sentences are deprived of an opportunity to seek appropriate appellate relief. Parrish makes clear that, unlike an RCr 11.42 motion, a "CR 60.02 motion survives the completion of [an appellant's] sentence." 283 S.W.3d at 677. Thus, an appellant with a truly meritorious claim can seek CR 60.02 relief if he can meet its stringent criteria. This is not to suggest that appellant in the instant case pursue that avenue of relief as the record conclusively establishes that he was well aware of the possibility that his parole might be revoked at the time he entered his plea. Appellant did not ask to withdraw his plea even after his counsel noted that it was likely that a motion to revoke his parole would be forthcoming.
In sum, because service of appellant's sentence has rendered moot his challenge to the denial of RCr 11.42 relief, this appeal is hereby dismissed.
ALL CONCUR. BRIEF FOR APPELLANT: Rodney Newcomb, Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Christopher Henry
Assistant Attorney General
Frankfort, Kentucky