Opinion
NO. 2009-CA-001939-MR NO. 2010-CA-000447-MR
11-19-2012
TIMOTHY DAWAYNE ROUSE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND TIMOTHY D. ROUSE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT IN NO. 2009-CA-001939-MR: Robert C. Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLANT IN NO. 2010-CA-000447-MR Timothy D. Rouse, Jr., pro se Eddyville, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 08-CR-00050
OPINION
AFFIRMING
BEFORE: CLAYTON AND TAYLOR, JUDGES; LAMBERT, SENIOR JUDGE. LAMBERT, SENIOR JUDGE: We are presented with two separate appeals from Appellant Timothy D. Rouse, Jr. The first (No. 2009-CA-001939-MR) is brought directly from Appellant's unconditional guilty plea to forgery and attempted escape charges, while the second (No. 2010-CA-000447-MR) challenges the denial of Appellant's subsequent motion for post-conviction relief filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. For reasons that follow, we affirm as to both appeals.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. Senior Judge Lambert authored this opinion prior to the completion of his senior judge service effective November 2, 2012. Release of the opinion was delayed by administrative handling.
No. 2009-CA-001939-MR
On August 4, 2008, Appellant was indicted on four counts of second-degree forgery and one count of attempted escape. The charges stemmed from incidents that occurred while Appellant was imprisoned at the Kentucky State Penitentiary. On September 25, 2009, Appellant filed a pro se "motion and affidavits to enter a plea of guilty open," in which he moved to enter a guilty plea and asked the trial court for a lesser sentence than the recommended five-year sentence offered by the Commonwealth. He claimed that a lesser sentence was merited because he had committed the subject offenses in an effort to escape sexual abuse that was allegedly being committed against him at the prison.
On October 2, 2009, Appellant - this time with the assistance of counsel - filed a motion to enter a guilty plea as to all charges. In exchange for Appellant's plea, the Commonwealth agreed to recommend a five-year sentence on each count, all to be served concurrently with one another but consecutively to the sentence Appellant was already serving.
Since an attempted escape from a penal institution was involved, Appellant would be required, upon conviction, to serve that sentence "consecutively with any other sentence which [he] must serve." KRS 532.110(3).
On that same day, per his own request, Appellant appeared before the trial court for both a hearing on his motion to enter a guilty plea and a sentencing hearing. We note that holding a hearing on a motion to enter guilty plea and a sentencing hearing on the same day is generally frowned upon. See Matheny v. Commonwealth, 37 S.W.3d 756, 759 (Ky. 2001); Misher v. Commonwealth, 576 S.W.2d 238, 241 (Ky. App. 1978). With this said, since Appellant requested that his case proceed in such a manner and he waived his right to a pre-sentence investigation report in order to speed along the process, we are not concerned about this particular fact.
However, for reasons left unclear by the record, before either hearing was held the trial court prepared a "final judgment and sentence on plea of guilty and waiver of pre-sentence report" finding Appellant guilty of the subject offenses and sentencing him in accordance with the Commonwealth's recommendation. Moreover, this judgment was signed as "HAVE SEEN" by counsel for both parties and by Appellant - again, before the hearings. Notably, this judgment contained a passage setting forth that the trial court had considered and rejected probation because a risk existed that: (1) Appellant would commit another crime while on probation; (2) Appellant was in need of correctional treatment; and (3) probation would unduly depreciate the seriousness of Appellant's offenses.
During the ensuing sentencing hearing, the trial judge advised Appellant: "And you understand that in your current situation, you're not going to be probated[?]" to which Appellant nodded affirmatively. No effort was made by Appellant or his counsel to challenge this determination. The trial judge then told Appellant:
You have asked me to sentence you differently from what the Commonwealth has recommended to you and, as before, you've written a compelling letter or motion and you obviously have a good ability to express yourself in writing. But, from my standpoint, I'm not the prosecutor in the case, and - selfishly - I have enough to do in making the decision that I have to make that I'm not going to deviate from what the prosecutor has recommended in your case. Whether I agree or disagree is not really relevant - it's the agreement that the parties reached. And so I'm going to sentence you consistent with the plea agreement to five years on each of those Class D felonies[.]This appeal followed.
On appeal, Appellant argues that he is entitled to a new sentencing hearing because the trial court failed to follow mandatory sentencing procedures and to give due consideration to probation or to any mitigating evidence before sentencing him. Appellant particularly contends that the court did not hold a "meaningful" sentencing hearing since it had prepared its final judgment denying probation prior to the hearing.
Appellant also raised a complaint regarding an alleged oral waiver of his right to a pre-sentence investigation report, but this argument was withdrawn in his reply brief.
KRS 533.010(2) provides that "[b]efore imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge." The trial court may impose a sentence of imprisonment (with exceptions not applicable here) only "after due consideration of the nature and circumstances of the crime and the history, character, and condition of the defendant[.]" Id. RCr 11.02(1) additionally requires the court to "consider the possibility of probation or conditional discharge and [to] afford the defendant and the defendant's counsel an opportunity to make a statement or statements in the defendant's behalf and to present any information in mitigation of punishment." Accordingly, KRS Chapter 533 and RCr 11.02 (along with KRS Chapter 532, where applicable) allow a trial judge to impose a sentence in a felony case "only after due consideration of ... all relevant [sentencing] factors." McClanahan v. Commonwealth, 308 S.W.3d 694, 703 (Ky. 2010).
Appellant also relies upon the decision of the Supreme Court of Kentucky in Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky. 1987). In Edmonson, the Supreme Court reversed a final judgment in a criminal case where the defendant had pled guilty because the trial court had prepared its final judgment before the sentencing hearing was conducted. This judgment included a resolution of the question of whether the defendant's sentences would run concurrently or consecutively - a matter that was debated at the sentencing hearing. The Court explained its decision as follows:
The record is clear that the trial judge prepared the final judgment prior to the sentencing hearing. By order settling the record on appeal, the trial judge disclosed that the document passed over the Bench to counsel immediately after the sentence was pronounced was the final and completed judgment. From this, we must conclude that the trial judge had either made up her mind as to the sentence which would be imposed, or she had tentatively decided what sentence to impose unless the defendant came forward with some compelling reason for leniency. KRS 532.110(1) grants the trial court discretion to impose concurrent or consecutive sentences. However, such discretion must be exercised only after the defendant has had a fair opportunity to present evidence at a meaningful hearing in favor of having the sentences run concurrently or present other matters in mitigation of punishment. The statutes [KRS 532.110 and 533.010] and rule [RCr 11.02] are not mere procedural formalities, but are substantive and may not be ignored.Id. at 596.
Based on this law, Appellant argues that a new sentencing hearing is required because the trial court clearly determined that it would not probate Appellant's sentence before a sentencing hearing - or even a hearing on Appellant's motion to enter guilty plea - was held. In most circumstances, we would agree. However, for a number of reasons, this case is rather unusual and requires a different outcome.
First, it is apparent from the record of the sentencing hearing that Appellant requested that the proceedings go forth in an expedited fashion. He waived any reliance on a pre-sentence investigation report and took the unusual step of having the trial court conduct a hearing on his motion to enter guilty plea and his sentencing hearing on the same day. Clearly, then, he wanted the matter to be resolved as quickly as possible. Moreover, Appellant was made privy to what the trial court's judgment and sentence would be before the hearing - again, an unusual circumstance - and apparently signed off on such.
Standing alone, the aforementioned facts likely would not be enough to remove the need for a sentencing hearing. However, when coupled with the record's reflection that Appellant was ultimately able to make his case for a reduced punishment and that the mitigating information offered by Appellant was considered by the trial court, we conclude that the need for such a hearing was obviated. As noted above, Appellant requested a lesser sentence than that offered by the Commonwealth before filing his attorney-assisted motion to enter a guilty plea. In support of his request, he tendered affidavits setting forth the reasons for his request. During the sentencing hearing, the trial judge acknowledged Appellant's request but advised him that probation would be denied in this case in light of his "current situation," i.e., his imprisonment and extensive criminal history. Appellant made no effort to challenge this determination. While the trial court perhaps did not handle this situation in an ideal fashion, we are loathe to remand for a new hearing under these circumstances - particularly given that Appellant's lengthy criminal record makes the likelihood of probation remote at best.
We also note that the sentence imposed by the trial court was ultimately the same as the one Appellant had bargained for with the Commonwealth. Consequently, we fail to see any manifest injustice meriting a new hearing. Cf. Lewallen v. Commonwealth, 584 S.W.2d 748, 751 (Ky. App. 1979). In reaching this decision, we emphasize that the facts of this case are unusual. Under normal circumstances, a new sentencing hearing would almost certainly be necessary. We reiterate to our circuit courts that our sentencing provisions "are not mere procedural formalities, but are substantive and may not be ignored." Edmonson, 725 S.W.2d at 596. However, in this case we do not believe that justice is ill-served by our decision. Thus, we affirm.
NO. 2010-CA-000447-MR
Appellant's second appeal concerns the trial court's denial of his motion for post-conviction relief filed pursuant to RCr 11.42. Appellant filed this motion (along with a motion to withdraw his guilty plea pursuant to RCr 8.10) shortly after entering his plea, and he alleged that he was entitled to relief from his conviction because: (1) the indictment failed to charge a public offense; (2) the trial court lacked jurisdiction over one of the forgery counts; (3) he was deprived of his right to make a statement or to present mitigating evidence during his sentencing hearing; (4) he was legally insane at the time he committed the subject offenses and at the time of his guilty plea; and (5) he had received ineffective assistance of counsel. The trial court rejected Appellant's motion without a hearing. This appeal followed.
On appeal, Appellant argues that the trial court erred by: (1) finding him competent to stand trial without a "current" competency evaluation; (2) not allowing him to make a statement or to present mitigating evidence during sentencing; (3) not vacating his guilty plea because he was mentally incompetent and legally insane at the time it was made, thereby rendering the plea involuntary and unintelligent; and (4) not vacating his guilty plea because the indictment against him failed to state a public offense or satisfy the requirements of the Fifth Amendment. For reasons that follow, these claims lack merit.
Because an evidentiary hearing on Appellant's RCr 11.42 motion was not held, our review is generally confined to considering "whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). RCr 11.42 requires an evidentiary hearing "if the answer raises a material issue of fact that cannot be determined on the face of the record." RCr 11.42(5); see also Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). However, there is no need for an evidentiary hearing if the record refutes the claims of error or if the defendant's allegations, even if true, would not be sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998).
These standards are not applicable to all of Appellant's arguments, however. For example, Appellant's first argument - that the trial court erred by finding him competent to stand trial without a "current" competency evaluation - must be rejected because this particular argument was not raised before the trial court. Therefore, it is unpreserved for our review since we are "without authority to review issues not raised in or decided by the trial court." Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
Appellant's second argument - that the trial court erred by not allowing him to make a statement or to present mitigating evidence during sentencing as required by RCr 11.02 - is equally unavailing. The substance of this contention was either part of Appellant's direct appeal or could have been since "sentencing issues" may be raised on direct appeal from an unconditional guilty plea. Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008). "It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court." Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972); see also Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009).
We further note that Appellant made no effort to offer a statement or to produce any mitigating evidence at the hearing. However, prior to sentencing, Appellant submitted affidavits to the trial court in an effort to explain the motivations for his actions. The record reflects that the trial judge considered this information before the sentencing hearing, but the judge obviously did not believe that it merited a sentence different from that recommended in the parties' plea agreement. Moreover, since Appellant received the exact sentence he had bargained for with the Commonwealth, no manifest injustice meriting reversal occurred in this regard. Lewallen, 584 S.W.2d at 751.
We next address Appellant's claim that his guilty plea was involuntary and should not have been accepted by the trial court when made because he was mentally incompetent and legally insane at the time. We again question whether this claim can be properly raised in an RCr 11.42 action since competency to plead guilty is an issue that can be raised on direct appeal from an unconditional guilty plea. Windsor, 250 S.W.3d at 307; see also generally Thompson v. Commonwealth, 147 S.W.3d 22 (Ky. 2004). With this said, Appellant's claim is easily refuted by the record; therefore, a hearing on this issue was not required. Glass v. Commonwealth, 474 S.W.2d 400, 401 (Ky. 1971).
To be valid, a guilty plea must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986). "[T]he validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it." Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). Nevertheless, "[s]olemn declarations in open court carry a strong presumption of verity." Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990). Among the circumstances to be considered in determining the validity of a guilty plea are "the accused's demeanor, background and experience, and whether the record reveals that the plea was voluntarily made." Id.
To be competent to plead guilty, the defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960); see also Thompson, 147 S.W.3d at 32. The trial court is in the best position to determine whether a defendant is competent to plead guilty. Centers, 799 S.W.2d at 54.
On September 19, 2008, a few months prior to entering his plea, Appellant (proceeding pro se) filed a "motion for compentcey (sic) and phsychiatric (sic) in-patient evaluation." The trial court subsequently ordered that Appellant be evaluated at the Kentucky Correctional Psychiatric Center (KCPC) in order to determine if he was competent to stand trial and if he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as a result of mental illness.
However, on October 15, 2008, the trial court vacated its order after being informed that Appellant had recently been evaluated at KCPC and that a report on that evaluation had been issued on March 13, 2008. The court also requested a copy of the report. Appellant (proceeding pro se despite being represented by counsel) subsequently filed a motion for reconsideration, but that motion was denied and a competency hearing was scheduled.
At the hearing, a KCPC psychiatrist charged with performing court-ordered competency and criminal-responsibility evaluations testified that he had examined and evaluated Appellant on multiple occasions over the previous two years in connection with other prosecutions, including one occasion in May 2007 in which Appellant participated in a full 30-day inpatient evaluation. Based on his interactions with Appellant, the psychiatrist testified that in all instances he believed Appellant was competent to stand trial since he understood the charges against him, used legal jargon appropriately, and was able to speak in rational detail about his constitutional rights and the specifics of his various prosecutions. After hearing all evidence - including testimony from Appellant - the trial court found Appellant competent to stand trial in this matter.
The trial court also noted that Appellant had filed numerous other actions in the Lyon Circuit Court, thereby demonstrating his familiarity with the legal process.
Appellant subsequently moved to plead guilty and appeared before the trial court for a hearing on his motion. During that hearing, Appellant participated in a standard plea colloquy with the trial judge. He indicated that he had the ability to read and write and had reviewed the plea documents with his attorney. He testified that he understood what he was doing, the charges against him, why he had been charged, and that the Commonwealth had recommended a five-year sentence.
Appellant also acknowledged his understanding that he was waiving a number of constitutional rights by pleading guilty. He also testified that he was satisfied with his legal representation and had had sufficient time to discuss the matter with his attorney. Appellant further indicated that he had freely and voluntarily read and signed both his motion to enter a guilty plea and the Commonwealth's offer on a plea of guilty and that he fully understood the contents of those documents beforehand. Based on this information, the trial judge found that Appellant had made his guilty plea knowingly, intelligently, and voluntarily and consequently accepted his plea.
The mental standard required to stand trial is the same as it is to enter a guilty plea. Conley v. Commonwealth, 569 S.W.2d 682, 684 (Ky. App. 1978). A defendant is considered competent in both instances when he can comprehend and appreciate the nature and consequences of the proceedings against him and when he is sufficiently coherent to participate rationally in his own defense. Alley v. Commonwealth, 160 S.W.3d 736, 739 (Ky. 2005); Bishop v. Caudill, 118 S.W.3d 159, 163 (Ky. 2003); KRS 504.060(4). "A competency determination is based on the preponderance of the evidence standard. We may disturb a trial court's competency determination only if the trial court's decision is clearly erroneous (i.e., not supported by substantial evidence)." Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky. 2007).
Applying these standards, we believe that the facts cited above support the trial court's determination that Appellant was competent to stand trial and - consequently - was competent to plead guilty. They also support the trial court's determination that Appellant's guilty plea was entered knowingly, intelligently, and voluntarily. We further note that prior to the appointment of counsel and before pleading guilty, Appellant filed a plethora of pro se motions. These included a motion for a speedy trial; a motion for discovery, a transcript, and a bill of particulars; an "ex-parte sealed motion for expert funds"; a motion for disposition of pending charges; a motion for appointment of counsel; a motion to suppress evidence; a "motion to ripe, strike, dismiss, and quash indictment for lack of allegations of charges"; and a motion to dismiss one of the charges because the alleged offense occurred in another county. All of these motions contained ample references to the Kentucky and United States Constitutions, the Kentucky Revised Statutes, the Kentucky Rules of Criminal Procedure and assorted case law. Moreover, at one point, Appellant (with the assistance of counsel) filed a motion for a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) in order to determine whether he could represent himself. He also apparently filed a number of requests for subpoenas and subpoenas duces tecum in connection with his competency hearing. As noted by the trial court, these actions indicated that Appellant appreciated the nature of the criminal proceedings against him and that he was able to rationally participate in his defense. Thus, his claim for RCr 11.42 relief in this regard was rightfully rejected.
Appellant complains that the KCPC evaluations discussed above were conducted before the dates of the subject offenses and in connection with another case; therefore, they should not have been relied upon in this case. This contention lacks merit and is rejected. See Jackson v. Commonwealth, 319 S.W.3d 347, 350 (Ky. 2010). Appellant also argues that a new competency evaluation was merited because he had become mentally disturbed from being placed in solitary confinement. However, this argument was not presented to the trial court and is, therefore, unpreserved. Tackett, 770 S.W.2d at 228.
--------
Appellant finally argues that he is entitled to post-conviction relief because the indictment against him was defective in that it failed to properly charge the public offense of forgery. Once again, we question whether this issue can be properly raised in an RCr 11.42 motion since failure to charge a public offense is another issue that can be raised on direct appeal from an unconditional guilty plea. Windsor, 250 S.W.3d at 307; see also RCr 8.18. However, even assuming that the claim is not barred, it lacks merit. "[O]ur precedent holds that all that is necessary for an indictment properly to charge an offense 'is to name the offense.'" Parker v. Commonwealth, 291 S.W.3d 647, 656 (Ky. 2009), quoting Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996); see also RCr 8.18. Such was done in this case. Thus, Appellant's argument must fail. We further note that the indictment against Appellant satisfied the requirements of RCr 6.10(2).
In sum, because the record refutes Appellant's allegations, the trial court did not err in refusing to grant an evidentiary hearing on his motion. Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998). Accordingly, Appellant's claim for RCr 11.42 post-conviction relief was rightfully rejected.
Conclusion
For the foregoing reasons, the decisions of the Lyon Circuit Court are affirmed as to both of the appeals before us.
ALL CONCUR. BRIEFS FOR APPELLANT
IN NO. 2009-CA-001939-MR:
Robert C. Yang
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLANT
IN NO. 2010-CA-000447-MR
Timothy D. Rouse, Jr., pro se
Eddyville, Kentucky
BRIEFS FOR APPELLEE: Jack Conway
Attorney General
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky