Opinion
NO. 2014-CA-000927-MR
05-06-2016
KEITH ROBARDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Keith Robards, pro se Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 12-CR-000325 OPINION
AFFIRMING
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BEFORE: CLAYTON, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Keith Robards appeals from the Jefferson Circuit Court's order denying his RCr 10.06 and RCr 10.24 motion. For the following reasons, we affirm.
Kentucky Rules of Criminal Procedure.
I. Procedural and Factual Background
Robards was charged by a Jefferson County Grand Jury with second-degree robbery, receiving stolen property, theft by deception, and theft by unlawful taking. These charges stemmed from a November 2011 incident, when Robards was test-driving a 1995 Cadillac Deville from Schutler Auto Sales. A salesman from the auto dealership, Roy Dupin, accompanied Robards on this test-drive. Under the guise of stopping the vehicle to check the air pressure in the tires, Robards pulled into a gas station parking lot. He then exited the vehicle and used physical force to drag Dupin from the vehicle and throw him to the ground. Robards then drove away in the vehicle.
Shortly after the incident, Dupin and another employee of Schutler Auto Sales positively identified Robards in a photo lineup. Robards was then arrested, and charged. He pled guilty to all charges in exchange for the dismissal of Persistent Felony Offender (PFO) charges; he also pled guilty to various charges in two other cases. Robards was sentenced to a total of twelve-years' imprisonment for all combined charges.
The court entered its final judgment on Robards' guilty plea in September 2013. In May 2014, Robards filed, pro se, a motion requesting relief under RCr 10.06 and RCr 10.24. The trial court summarily denied that motion, and from that denial, Robards now appeals.
II. Standard of Review
We review the denial of an RCr 10.06 motion for abuse of discretion. Epperson v. Commonwealth, 809 S.W.2d 835, 841 (Ky. 1990). An abuse of discretion has occurred when 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) (internal citation omitted). A claim brought under RCr 10.24 is not preserved for review when a defendant did not move for a direct verdict on that ground at the conclusion of the evidence. Baker v. Commonwealth, 973 S.W.2d 54, 55 (Ky. 1998).
III. Arguments
On appeal, Robards argues that the trial court abused its discretion in denying his motion to submit new evidence. He also contends that the trial court erred by not providing him with an appealable answer to his motion, but rather summarily denying his motion.
Robards styled his motion under RCr 10.06 and RCr 10.24, and argues that he is entitled to a new trial under these rules. RCr 10.06 provides
(1) The motion for a new trial shall be served not later than five (5) days after return of the verdict. A motion for a new trial based upon the ground of newly discovered evidence shall be made within one (1) year after the entry of the judgment or at a later time if the court for good cause so permits.
(2) After a motion for a new trial is filed and if there is an appeal pending, either party may move the appellate court for a stay of the proceedings in the appellate court, whereupon the clerk of the appellate court shall notify the clerk of the trial court that the motion has been filed. The clerk of the trial court shall notify the clerk of the
appellate court of the trial court's ruling on the motion for a new trial.RCr 10.24 provides
Not later than five (5) days after the return of a verdict finding a defendant guilty of one or more offenses, or after the discharge of the jury following their having not returned a verdict, a defendant who has moved for a directed verdict of acquittal at the close of all the evidence may move to have the verdict set aside and a judgment of acquittal entered, or for a judgment of acquittal. Likewise, if a defendant has been found guilty under any instruction to which at the close of all the evidence such defendant objected upon the ground that the evidence was not sufficient to support a verdict of guilty under that instruction, that defendant may move that to that extent the verdict be set aside and a judgment of acquittal entered. A motion for a new trial may be joined with this motion.
Robards argues that new evidence, a surveillance video of the gas station where Robards allegedly committed his crime, has come to light. He contends that this new video proves that he did not commit these crimes as the Commonwealth asserts, and the court abused its discretion in denying his motion to introduce this evidence. He further claims that the Commonwealth has evidence that was never presented and witnesses who never made appearances, and he alludes to the existence of several discrepancies in the evidence presented against him, such as the identifying details of the arresting officer and witnesses against him.
Under RCr 10.06, the gas station video cannot be considered "new" evidence as the basis for a new trial since Robards admits in his brief that he knew of its existence but defense counsel advised she could not gain access to it. A properly filed RCr 10.06 motion, alleging newly-discovered evidence, must be accompanied by an affidavit showing that the defendant exercised sufficient diligence to obtain the evidence prior to his trial. Collins v. Commonwealth, 951 S.W.2d 569, 576 (Ky. 1997); Wheeler v. Commonwealth, 395 S.W.2d 569 (Ky. 1965). Robards' second-hand assertion falls short in lacking sufficient detail to show the requisite due diligence necessary to set aside Robards' guilty plea. On the other hand, Robards seems to argue that his counsel failed to properly investigate this video as a defense to the charges. Unfortunately, Robards has chosen to file his pro se motion based on RCr 10.06, instead of RCr 11.42. While we do not impose on him the same standards as applied to legal counsel, he is, nevertheless, required to give the court and the opposing party, i.e., the Commonwealth, fair notice of his claim. Miller v. Commonwealth, 416 S.W.2d 358, 360 (Ky. 1967).
As noted, Robards' allegations of ineffective assistance of counsel would seemingly fit better within the construct of an RCr 11.42 motion. We note that Robards' three-year time limit for filing such a motion has not yet expired. We express no opinion on the merits of any such motion for post-conviction relief. --------
Similarly, RCr 10.24 is inapplicable to Robards' case, as it addresses challenges to the sufficiency of the evidence presented at trial. In this case, Robards pled guilty to the charges, and a trial was never conducted. A guilty plea waives all defenses to the original charges, other than the defense that the indictment fails to charge an offense. Corbett v. Commonwealth, 717 S.W.2d 831, 832 (Ky. 1986). A defense that the evidence would have been insufficient to support a conviction is one of the waived defenses. Parrish v. Commonwealth, 283 S.W.3d 675, 677 (Ky. 2009).
IV. Conclusion
The trial court did not abuse its discretion in denying Robards' RCr 10.06 motion, nor did it err in the denial of his motion under RCr 10.24 since no motion for a directed verdict was made. For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Keith Robards, pro se
Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky