Opinion
NO. 2016-CA-000147-MR
02-17-2017
JEFFREY TALBERT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Michael J. Curtis Ashland, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 08-CR-00168 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: Jeffrey Talbert appeals from the Greenup Circuit Court's dismissal of his RCr 11.42 motion alleging ineffective assistance of counsel. The trial court dismissed the motion as untimely. Talbert argues the motion, filed more than five years after his conviction became final, was equitably tolled. Holding Talbert did not show sufficient grounds to toll the three-year window specified in RCr 11.42(10), we affirm.
Kentucky Rules of Criminal Procedure.
FACTS
On January 14, 2010, Talbert pled guilty to three counts of sexual abuse in the first degree. As a result of the plea, the Commonwealth agreed to dismiss a charge of being a persistent felony offender in the first degree. Talbert received a sentence of five years on each charge, all run concurrently for a total of five years. The Commonwealth also agreed to probation of Talbert's remaining sentence as he had already served 180 days.
Kentucky Revised Statutes (KRS) 510.110, a Class C felony when the victim is less than sixteen years of age. Talbert's victim was nine years of age.
Talbert's probation was revoked, but reinstated upon his agreement he was in contempt of court for failing to timely register as a sex offender. He agreed to serve 60 days in jail.
The Commonwealth filed a second revocation motion because Talbert: 1) had unsupervised contact with juveniles without permission; 2) was in a place where children congregate without prior approval; 3) violated the supplemental conditions of supervision for a sex offender; and 4) was terminated from the sex offender treatment program. Admitting he had unsupervised contact with juveniles and attended a youth football game, Talbert waived his right to an evidentiary hearing. On November 20, 2014, the trial court revoked Talbert's probation again.
On March 2, 2015, Talbert filed an RCr 11.42 motion alleging trial counsel failed to investigate the case—specifically, he did not interview the child victim. The trial court denied the motion on the grounds it was time-barred. This appeal followed.
In its order entered January 4, 2016, the trial court erroneously stated RCr 11.42(10) provides a five-year window. A three-year window is specified in the rule.
ANALYSIS
Talbert's sole allegation of error is trial counsel was ineffective in failing to interview the nine-year-old victim. To prove ineffective assistance of counsel, a defendant must show: (1) counsel's representation was deficient in that—when measured against prevailing professional norms—it fell below an objective standard of reasonableness; and (2) he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
The Commonwealth urges us not to reach the ineffectiveness claim because, as the trial court found, Talbert's motion was filed more than two years outside the three-year limitations period provided in RCr 11.42(10). That rule reads in relevant part:
(10) Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence;Talbert argues he is entitled to equitable tolling under Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005), a case he fails to mention was overruled by Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011). We reject his premise.
. . .
If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's opportunity to present relevant evidence to contradict or impeach the movant's evidence.
Prior to January 1, 2011, Kentucky utilized a judicially-created test called "equitable tolling" - a halting of the statute of limitations where a prisoner "'actually delivered a properly prepared and addressed RCr 11.42 motion to the appropriate [. . .] prison authorities for mailing prior to the expiration of the limitation period.'" Robertson, 177 S.W.3d at 792. With Kentucky's adoption of the prison mailbox rule in 2011, equitable tolling became a thing of the past, except in the limited class of post-conviction proceedings not triggering the mailbox rule. In those cases, equitable tolling applies only when the prisoner establishes he has pursued his rights diligently, and an extraordinary circumstance stood in his way preventing timely filing. Moorman v. Commonwealth, 484 S.W.3d 751, 757 (Ky. App. 2016) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005)). To benefit from equitable tolling, both prongs must be shown. Id.
Talbert's explanation for filing two years after expiration of the limitations period is he recently learned his minor victim had made claims of molestation against other people. This explanation is defeated by the report of Det. J. Brown who interviewed Talbert on March 5, 2008, wherein Talbert "advised that [the children] have accused family members in Ohio of inappropriately touching them." Thus, there was no recent revelation of the victim and her siblings making claims against others.
Furthermore, Talbert's explanation widely misses the mark set by Moorman. Talbert has shown neither diligent pursuit of his rights, nor an extraordinary circumstance prohibiting his filing of a motion to vacate within three years of the judgment of conviction becoming final in early 2010. The motion to vacate was not filed until March of 2015.
According to Talbert's own affidavit, he plead guilty knowing counsel had interviewed neither the nine-year-old victim nor her siblings. With that knowledge, he stood before the trial court during the guilty plea colloquy and admitted guilt. Moreover, he told the trial court he had no complaints with counsel and was fully satisfied with the legal services provided. Had Talbert acted promptly, he could have moved to vacate the guilty plea well within the three-year window allowed by RCr 11.42(10).
As the Greenup Circuit Court found, Talbert's motion was untimely filed. Furthermore, Talbert has not satisfied the Moorman test for application of equitable tolling. The order of the Greenup Circuit Court denying RCr 11.42 relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Michael J. Curtis
Ashland, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky