Opinion
NO. 2015-CA-001606-MR
02-10-2017
TERRY W. ROACH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Terry W. Roach, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE, CRAIG Z. CLYMER, JUDGE
ACTION NO. 01-CR-00037 OPINION
AFFIRMING
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BEFORE: JONES; D. LAMBERT; TAYLOR, JUDGES. JONES, JUDGE: This appeals arises out of an order by the McCracken Circuit Court denying Terry Roach's CR 60.02 motion. Finding no error, we affirm.
Kentucky Rules of Civil Procedure.
I. Background
On February 16, 2001, Roach was indicted for the first-degree robbery and the murder of Clifford Robinson. Due to aggravating circumstances, the Commonwealth sought the death penalty. On June 3, 2002, Roach pleaded guilty to both charges in exchange for a sentence of life without parole for twenty-five years. After conducting a lengthy colloquy, during which Roach admitted to the robbery and murder, the trial court accepted Roach's plea as "voluntary, knowing, and without the threat of force."
On August 8, 2002, Roach appeared before the trial court, accompanied by counsel, for final sentencing. Before the court imposed the sentence, Roach's counsel informed the court that Roach wanted to make a statement. Roach proceeded to apologize to the court and stated, "[w]hen I took this plea, I was forced. I can't go down for something I didn't do. I apologize to you, and I'd like to change my plea to not guilty." After Roach finished his statement, the court asked for the Commonwealth's position on the motion. The Commonwealth objected to the motion, reminding the court that Roach admitted to the crimes under oath during his plea colloquy. Without further inquiry, the trial court denied Roach's motion to withdraw his guilty plea. The court expressed doubt that Roach's attorneys would have coerced Roach into pleading guilty.
As was his right, Roach appealed directly to the Supreme Court of Kentucky. He argued to the Court that his due process rights were violated as a result of the trial court's refusal to allow him to withdraw his guilty plea. Specifically, Roach contended that the trial court abused its discretion under RCr 8.10 by refusing to inquire further into the circumstances surrounding the voluntariness of his guilty plea. Citing to Roach's plea colloquy, our Supreme Court found that the trial court adequately determined the voluntariness of Roach's plea. The Court ultimately affirmed Roach's conviction and sentence. Roach v. Commonwealth, No. 2003-SC-0013-TG, 2003 WL 22971265 (Ky. Dec. 18, 2003).
Kentucky Rules of Criminal Procedure.
RCr 8.10 states in pertinent part that "[a]t any time before judgment the court may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty substituted."
Thereafter, on March 5, 2004, Roach filed a pro se RCr 11.42 motion seeking relief from his conviction and sentence. In his motion, Roach claimed that his guilty plea was involuntary because there were no aggravating circumstances in his case and, therefore, counsel's advice to accept an aggravated sentence of life without the possibility of parole for twenty-five years was inappropriate. He also claimed that trial counsel's failure to seek suppression of incriminating phone conversations between Roach and his girlfriend neglected a viable defense. Along with his pro se RCr 11.42 motion, Roach filed motions for an evidentiary hearing and assistance of counsel. On March 11, 2004, Roach filed a pro se motion to hold his RCr 11.42 motion in abeyance pending the appointment of counsel. The trial court granted Roach's request for an attorney, and in May 2004, an attorney from the Department of Public Advocacy ("DPA") entered his notice of appearance on Roach's behalf.
There is no record of a ruling on Roach's motion for abeyance. --------
For reasons not apparent in the record, appointed counsel waited four years to file a supplement to Roach's pro se RCr 11.42 motion. In the supplemental motion, Roach maintained his claim that his plea was involuntary due to ineffective assistance of counsel. However, this time, Roach based his claim on trial counsel's failure to investigate an alternate perpetrator defense, and allegations that counsel coerced him into pleading guilty by emphasizing the risk of the death penalty if he proceeded to trial. The trial court denied both the pro se motion and the supplemental motion without an evidentiary hearing. The court found that the supplemental motion was untimely and that the issues in the pro se motion were refuted by the record. We affirmed the trial court's decision and our Supreme Court granted discretionary review. On September 12, 2012, our Supreme Court upheld the denial of Roach's RCr 11.42 motion. The Court held that Roach's untimely supplemental claims regarding the voluntariness of his plea did not relate back to the timely claims in his pro se motion and were thus time-barred. Additionally, the Court found Roach's pro se claims to be without merit. Roach v. Commonwealth, 384 S.W.3d 131 (Ky. 2012).
Roach then filed a motion pursuant to CR 60.02 on February 11, 2015. In his motion, Roach claimed that his trial counsel abandoned him during his motion to withdraw his guilty plea. In support of his motion, Roach cited Carrigan v. Commonwealth, 414 S.W.3d 16 (Ky. App. 2013), in which we stated, in dicta, that a motion to withdraw is a critical stage of a prosecution, at which a defendant is entitled to the effective assistance of counsel. The trial court denied Roach's motion, finding that the twelve-year delay between Roach's conviction and the filing of the motion was unreasonable. The trial court reasoned that Roach could have raised his argument in his direct appeal or in his motion made pursuant to RCr 11.42. Roach appeals the denial of his CR 60.02 motion.
II. Standard of Review
We review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). To warrant relief, a movant must show that the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principals." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The movant must also demonstrate that "he is entitled to this special, extraordinary relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Absent a "flagrant miscarriage of justice," we must affirm the decision of the trial court. Id. at 858.
III. Analysis
"The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete." Id. at 856. "A defendant who is in custody under sentence or on probation, parole or conditional discharge, is required to avail himself of RCr 11.42 as to any ground of which he is aware, or should be aware, during the period when the remedy is available to him. 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) (quoting Gross, 648 S.W.2d at 855-56).
Roach's conviction became final when our Supreme Court affirmed his guilty plea and sentence on December 18, 2003 - almost twelve years before he filed his current motion. Roach does not allege any facts unknown to him or which could not have been ascertained with due diligence within the time required to file an RCr 11.42 motion. Therefore, we agree with the circuit court that Roach's motion was untimely on its face.
IV. Conclusion
For the foregoing reasons, we affirm the order of the McCracken Circuit Court denying Roach's request for relief.
ALL CONCUR. BRIEF FOR APPELLANT: Terry W. Roach, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky