Simpson v. Commonwealth

Full title: JOSEPH C. SIMPSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 21, 2014

NO. 2013-CA-000235-MR (Ky. Ct. App. Mar. 21, 2014)

Opinion

NO. 2013-CA-000235-MR

03-21-2014

JOSEPH C. SIMPSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Joseph C. Simpson, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky

STUMBO

NOT TO BE PUBLISHED

APPEAL FROM NELSON CIRCUIT COURT

HONORABLE CHARLES C. SIMMS, III, JUDGE

ACTION NOS. 06-CR-00165 AND 06-CR-00261

OPINION

AFFIRMING

** ** ** ** **

BEFORE: LAMBERT, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Joseph Simpson appeals from an order of the Nelson Circuit Court which denied his Kentucky Rules of Civil Procedure (CR) 60.02 motion. We find no error and affirm.

This case has been heard on appeal before; therefore, we will use the previous recitation of facts.

On or about March 12, 2005, the first victim, CH, a 13-year-old girl, and SB, her 16-year-old friend, were invited to Simpson's house for a sleep-over with Simpson's daughter. CH and SB were watching a movie with Simpson and his 19-year-old cousin. Simpson served the girls alcohol and provided them with lingerie to wear while they watched the movie. Later, Simpson and CH retired to Simpson's bedroom. There, Simpson pressured CH to pleasure him with her hand and to perform oral sex. According to CH, Simpson set up a camcorder on a tripod and videotaped her performing oral sex. Further, CH stated Simpson inserted his fingers and a vibrator into her vagina. According to CH, Simpson retrieved the vibrator from a night stand near the bed.
CH reported the incident to school officials when she became frightened after seeing Simpson at her school. Police were contacted and during the ensuing investigation, officers recovered the lingerie top Simpson had provided to CH. According to CH, the bottoms had been soaked in blood as a result of the attack, so she had thrown them away. A subsequent medical examination confirmed CH's hymen had an old laceration or tear consistent with her story.
Pursuant to a warrant, officers discovered corroborating evidence during a search of Simpson's house. Those items included a tripod (on the floor by the bed), a camcorder (on the dresser in the bedroom), and several vibrators and lingerie (in a bedroom dresser). Further, officers recovered three videotapes. While none of the videotapes contained images of CH, they did contain images of other minors exposing their breasts and genitalia and performing sexual acts.
While officers were conducting the search, Simpson arrived home. After being advised of his Miranda rights, Simpson signed a waiver of rights form. In addition to confirming CH had spent the night at his home, he admitted to having given her lingerie. Further, Simpson confirmed that he had taken CH to his bedroom, but denied having sex with her. Regarding the videotapes,
Simpson confirmed that he had made them, but contended that the juveniles had asked him to make the videos.
Simpson was indicted by the Nelson County Grand Jury under Indictment No. 06-CR-00165 for the following charges: (1) one count of use of a minor in a sexual performance (with the minor incurring injury); (2) one count of second-degree rape; (3) one count of second-degree sodomy; (4) one count of second-degree sexual abuse; (5) and two counts of third-degree unlawful transaction with a minor.
As a result of a local newspaper reporting the indictment, a second victim came forward. The second victim, TM, told officers that she had babysat for Simpson in June of 1998. She stated that once Simpson's children were in bed, Simpson pressured her to take a bath. TM said that she locked the bathroom door and refused to allow Simpson inside. Once she came out of the bathroom, Simpson massaged her legs. In the guise of continuing the massage, Simpson also rubbed TM's bottom and genitalia. As a result of this disclosure, Simpson was indicted by the Nelson County Grand Jury under Indictment No. 06-CR-00261 for one count of first-degree sexual abuse.
After plea negotiations, the Commonwealth agreed to amend Count One of Indictment No. 06-CR-00165 to reflect "no injury" to the minor, thus reducing the charge from a Class A to a Class B felony. In addition, the Commonwealth agreed to recommend a sentence of ten (10) years each on the counts of second-degree rape and second-degree sodomy. While these 10-year terms were to run consecutively, the Commonwealth agreed the sentences on the remaining counts would run concurrently, for a total of twenty (20) years. Further, the Commonwealth agreed that the five-year sentence imposed under the second indictment would run concurrently with the total sentence imposed under the first indictment. Finally, the Commonwealth agreed not to seek any further charges based on the videotapes discovered in Simpson's home.
Simpson accepted this offer on the condition that he would be allowed to enter an Alford plea. Therefore, on March 2, 2007, Simpson appeared before the Nelson Circuit Court to enter his guilty plea. During the Boykin plea colloquy, Simpson informed the court that he had taken nitroglycerin tablets that day because he was suffering from angina. However, Simpson assured the court that he had taken the medication on previous occasions, that he had taken it only as prescribed, and that his ability to think or act knowingly had not been affected as a result of having taken the medication. Simpson then entered his plea and sentencing was set for May 3, 2007. Prior to sentencing, Simpson filed a motion to withdraw his guilty plea. Following a hearing, the court denied Simpson's motion and sentenced him to a total of twenty (20) years in prison.

Simpson v. Commonwealth, 2009 WL 735878, 1 -2 (Ky. 2009)(2007-SC-000623-MR) (citations and footnotes omitted). On direct appeal to the Kentucky Supreme Court, Simpson argued that the trial court erred in not allowing him to withdraw his guilty plea and that his trial counsel was ineffective. As to the ineffective assistance of counsel claims,

Simpson argue[d] his attorney failed to make an independent investigation of the facts. Instead, Simpson contend[ed] his attorney relied solely on the summary provided by police. Second, Simpson claim[ed] his attorney failed to fully inform him of the charges, the underlying facts, and the defenses available to him. Finally, Simpson contend[ed] his attorney failed to fully inform him of the consequences of the proposed plea. Given these circumstances, Simpson claim[ed] his attorney was ineffective and, further, but for that performance he would not have entered the plea.

Id. at 5. The Supreme Court found that the trial court did not err in denying his motion to withdraw his guilty plea and that trial counsel was not ineffective. The Court affirmed his conviction.

On April 18, 2012, Simpson,pro se, filed the underlying CR 60.02 motion. Simpson utilized CR 60.02(e) and (f) in making his motion. Those subsections allow a court to relieve a person from its judgment if:

(e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief.

CR 60.02(e) and (f). Motions pursuant to these subsections must be made within a reasonable time. Simpson's motion alleged that he was innocent of the crimes because the Commonwealth had no evidence of his guilt; that he suffered numerous due process violations; and that his brother, Bardstown City Police Officer Timmy Simpson, framed him.

The trial court did not hold a hearing on the motion. The court denied the motion in a thorough ten-page order. The court found that Simpson did not file his motion within a reasonable time; that the Commonwealth had sufficient evidence to suggest Simpson committed the crimes; that the alleged due process violations should have been raised on direct appeal or via a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion; that the allegation that his brother framed him should have been brought on direct appeal or via an RCr 11.42 motion; and finally that there was absolutely no evidence that his brother framed him. This appeal followed.

On appeal, Simpson raises these issues again, along with the arguments of cumulative error and that the trial court erred in not holding a hearing on the CR 60.02 motion.

Application of the Civil Rules is required in criminal cases by RCr 13.04. This allows CR 60.02 motions to be used by criminal defendants to present additional issues not specifically available through direct appeals or RCr 11.42 motions. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). As we have previously stated, CR 60.02 motions are limited to afford special and extraordinary relief not available in other proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). The rule is not intended to provide an avenue for defendants to relitigate issues which could have been presented in a direct appeal or an RCr 11.42 proceeding. Id.

Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky. 2008).

CR 60.02 "is designed to provide relief where the reasons for the relief are of an extraordinary nature." A very substantial showing is required to merit relief under its provisions. Moreover, one of the chief factors guiding the granting of CR 60.02 relief is the moving party's ability to present his claim prior to the entry of the order sought to be set aside.

U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 541-542 (Ky. App. 2007) (citations omitted). Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief. Gross, 648 S.W.2d at 856.

On review of the denial of a CR 60.02 motion, we review for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Baze, 276 S.W.3d at 765.

Simpson's first CR 60.02 argument is that the Commonwealth did not have evidence to prove he committed the crime. This issue is without merit.

Entry of a voluntary, intelligent plea of guilty has long been held by Kentucky Courts to preclude a post-judgment challenge to the sufficiency of the evidence. E.g. King v. Commonwealth, 408 S.W.2d 622, 623 (Ky. 1966); Harris v. Commonwealth, 441 S.W.2d 143 (Ky. 1969); Bartley v. Commonwealth, 463 S.W.2d 321 (Ky. 1971). The reasoning behind such a conclusion is obvious. A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged. By such an admission, a convicted appellant forfeits the right to protest at some later date that the state could not have proven that he committed the crimes to which he pled guilty. To permit a convicted defendant to do so would result in a double benefit in that defendants who elect to plead guilty would receive the benefit of the plea bargain which ordinarily precedes such a plea along with the advantage of later challenging the sentence resulting from the plea on grounds normally arising in the very trial which defendant elected to forego.
As the United States Supreme Court has explained, "... a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent it quite validly removes the issue of factual guilt from the case." Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975) (original emphasis).

Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986). Furthermore, the trial court set forth the evidence showing Simpsons' guilt. That evidence has been recited by this Court when we cited to the Supreme Court opinion supra.

Simpson next argues that there were a number of due process violations that occurred during his case. Specifically, those alleged violations were: that he gave a false confession due to an improper interrogation technique; that the investigating officer failed to record the interview he conducted with one of the victims, CH; that trial counsel was ineffective for not deposing the officer as to why he failed to record the victim interview; that trial counsel was ineffective for failing to file a missing evidence motion; that there was a chain of custody issue with the lingerie; and that trial counsel was ineffective for failing to file a motion to suppress his statements to the police.

The trial court found that these arguments should have been brought on direct appeal or via an RCr 11.42 motion. We agree. These issues were known, or should have been known, to Simpson at the time of his guilty plea and appeal. In fact, Simpson raised some issues of ineffective assistance of counsel on direct appeal. These alleged due process violations should have also been raised at that time or in an RCr 11.42 motion. See Gross, supra.

Simpson's next allegation is that his brother framed him for the crimes he pled guilty to. The trial court found that this issue also should have been raised on direct appeal or via an RCr 11.42 motion. The court, however, gave Simpson the benefit of the doubt on this issue and set forth further reasons why this issue was without merit. We agree with the trial court's findings on this issue and adopt them in full.

Regardless, this Court would note that there is absolutely nothing in the record to indicate that Officer Simpson framed his brother other than Simpson's bald assertion. For example, this Court has considered the following: (1) that CH reported the incident to school officials when she became frightened upon seeing Simpson at her school, (2) that CH's mother contacted the Kentucky State Police after an assistant school principal informed her of CH's disclosure, (3) that the investigation was conducted by the Kentucky State Police, and not the Bardstown City Police Department, (4) that Simpson admitted to [Detective Mark] Gillingham [of the Kentucky State Police] that CH spent the night at his home, that he provided her with lingerie, and that he had taken her to his bedroom, (5) that CH provided the lingerie top to Gillingham, and it was determined to have her blood upon it, (6) that Gillingham had CH undergo a medical examination which confirmed that her hymen had an [old] laceration or tear which is consistent with her version of events, (7) that from Simpson's residence, Gillingham seized a tripod, camcorder, and several vibrators which is consistent with CH's version of events, (8) that from Simpson's residence, Gillingham seized three homemade videotapes which depict minors exposing either their breasts or genitalia, or engaging in some type of sexual acts, while Simpson can be heard or seen on said videotapes, (9) that from Simpson's residence, Gillingham seized two "morphed" pictures of Mary Kate and Ashley Olsen, (10) that from Simpson's residence, Gillingham seized thirty-three (33) erotica books, with at least eight of those books being of an incestuous nature, and (11) that Gillingham obtained a recorded statement from witness, SB, which is consistent with CH's version of events, including the following: (a) that Simpson provided them with alcohol and lingerie, (b) that CH and Simpson went to Simpson's bedroom, and (c) that SB walked into Simpson's bedroom and discovered CH and Simpson in bed without any lights.

Based on these facts, there is no evidence that Simpson's brother framed him.

As for Simpson's arguments that cumulative error requires reversal and that the trial court erred in not holding an evidentiary hearing, we find no error. There can be no cumulative error when we have found no error in the trial court's judgment. Also, all of the issues raised in Simpson's CR 60.02 motion should have been brought on direct appeal or in an RCr 11.42 motion. Even assuming the CR 60.02 motion was the proper avenue for raising these issues, the facts of the case and the evidence contained in the record dispute Simpson's allegations. Further complicating matters for Simpson is the fact that he pled guilty and his guilty plea was affirmed by the Kentucky Supreme Court.¹

1 The trial court also denied Simpson's CR 60.02 motion for failing to bring it within a reasonable time. Because we have adjudicated the issues on the merits, we will not rule on this procedural matter.

Based on the foregoing, we find that the Nelson Circuit Court did not abuse its discretion in denying Simpson's CR 60.02 motion.

ALL CONCUR. BRIEFS FOR APPELLANT: Joseph C. Simpson, pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky