Opinion
NO. 2013-CA-000595-MR
05-23-2014
SCOTTY UPCHURCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Scotty Upchurch, pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NOS. 04-CR-00148 & 04-CR-00317
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: Scotty Upchurch appeals from the order of the Wayne Circuit Court denying his motion for relief pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42. After our review, we affirm.
On September 1, 2006, Upchurch pled guilty to complicity to commit capital murder and complicity to commit first-degree robbery. In exchange for his plea, he was sentenced to thirty-four years of incarceration. On February 23, 2007, Upchurch filed a motion to vacate the judgment pursuant to Kentucky Rule[s] of Civil Procedure (CR) 60.02. The trial court denied the motion, which was upheld by this Court on July 18, 2008.
Upchurch filed a motion to vacate his judgment on August 26, 2009. The trial court entered its order denying the motion on March 8, 2013. This appeal follows.
As a preliminary issue, Upchurch claims that his rights to due process were violated because the trial court did not enter its findings until four years after he filed his motion. He also contends that it was error for the trial court not to appoint counsel.
Upchurch does not provide any legal authority relating to the timeliness of post-conviction proceedings. And we are unable to find any. As the Commonwealth notes, nothing in the law obligates states to provide post-conviction avenues of relief. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987). Accordingly, states are not required to provide counsel in post-conviction proceedings. Id. Therefore, we are unable to conclude that the trial court's delay in responding - albeit lamentably long - or failure to appoint counsel violated any of Upchurch's rights.
All but one of Upchurch's remaining arguments were addressed in his previous CR 60.02 motion. They are based on his allegation that the trial court should have held a competency hearing. This Court addressed the competency- related claims in an earlier opinion. Upchurch v. Commonwealth, 2008 WL 2779929 (Ky. App. Jul. 18, 2008). There is no legal authority for our re-visiting them. See Hampton v. Commonwealth, 454 S.W.2d 672 (Ky. 1970).
Nonetheless, we will examine one new issue that is presented by Upchurch. He claims that his trial counsel was ineffective by not providing him with correct information regarding good-time credits. He alleges that this omission amounted to coercion of a guilty plea.
Our standard of review of a claim of ineffective assistance of counsel has been set forth by the Supreme Court of the United States, which has prescribed a two-pronged test describing the defendant's burden of proof:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 674 (1984), adopted in Kentucky by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both criteria must be met in order for the test to be satisfied.
In the context of guilty pleas, "in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370-71, 88 L.Ed. 203 (1985) . In this case, Upchurch's counsel informed him that under the terms of the plea agreement, he would not be eligible to seek parole until he had served twenty years of his sentence. He asserts that his counsel erroneously told him that in the meantime, he could shorten his sentence by earning good-time credit.
Our Supreme Court recently held that it was error for counsel to inform a defendant that he would be eligible for parole after serving twenty percent of his bargained-for sentence when the length of time was actually eighty-five percent. Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012). It reasoned that a difference of several years could have been prejudicial. Id. at 880-81. However, in the same opinion, it also held that it was not error when counsel failed to advise a defendant about the ramifications of participating in the Sexual Offender Treatment Program; i.e., he would only be eligible for parole after completing the program. It reasoned that the effects were not drastic and did not amount to prejudice. Id. at 882.
We are persuaded that Upchurch was not prejudiced by any misinformation that may have been involved. Good-time credits are a speculative benefit that Upchurch might or might not receive. Martin v. Chandler, 122 S.W.3d 540, 551 (Ky. 2003). They are not a right to which he is entitled; they are a privilege bestowed by the Department of Corrections. Anderson v. Parker, 964 S.W.2d 809 (Ky. App. 1997). Incorrect information about the possibility of a benefit is not legally prejudicial to Upchurch. He knew that he would have to serve at least twenty years. Even that time-frame is speculative. He will be eligible to appear before the Parole Board at that time. However, he is not guaranteed to be released.
Furthermore, if Upchurch had gone to trial, the Commonwealth would have sought the death penalty. Thus, it is impossible for us to conclude that the correct information concerning good-time credit would have persuaded him to go to trial in lieu of entering a guilty plea. We hold that his counsel was not ineffective.
Because Upchurch has not provided proof of error, we affirm the order of the Wayne Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Scotty Upchurch, pro se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky