Opinion
NO. 2014-CA-001991-MR
05-05-2017
RICHARD TODD WELLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Richard Todd Wells Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 11-CR-002684-002 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. KRAMER, CHIEF JUDGE: Richard Todd Wells appeals the Jefferson Circuit Court's order denying his RCr 11.42 motion to vacate his sentence. After a careful review of the record, we affirm because Wells's ineffective assistance of counsel claims lack merit.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Wells was indicted on two counts of first-degree robbery and one count of being a first-degree persistent felony offender (PFO-1st). The Commonwealth provided him an offer on a plea of guilty. The offer stated that if Wells entered guilty pleas to the charges, the Commonwealth would recommend a sentence of twenty years for each of the robbery charges, enhanced to twenty-three years due to the PFO-1st conviction. The Commonwealth also agreed to recommend that the sentences be served concurrently to each other. However, the Commonwealth proffered that Wells would not be eligible for probation, and these sentences would have to be served consecutively to any sentences for which Wells was on parole at the time he committed these offenses. Wells moved to enter a guilty plea in accord with the Commonwealth's offer. The circuit court accepted Wells's guilty plea and sentenced him in accordance with the plea agreement.
Wells then moved for relief from the court's judgment pursuant to CR 60.02. In that motion, he alleged that he had been subjected to "multiple prosecution[s] for the same offense," because counts one and two were based upon the same robbery. The same day, he filed a motion for an evidentiary hearing "in support of [his] RCr 11.42 motion." Eleven months later, but before the CR 60.02 and evidentiary hearing motions were ruled upon by the circuit court, Wells moved to hold the CR 60.02 motion in abeyance until he could file an RCr 11.42 motion alleging that he had received the ineffective assistance of trial counsel. Several days later, the court appointed the Department of Public Advocacy to represent Wells in this case.
Kentucky Rule of Civil Procedure.
There were two counts of robbery because there were two victims against whom Wells perpetrated the robbery.
He had not filed an RCr 11.42 motion at that time.
Two months later, Wells filed a pro se RCr 11.42 motion to vacate his sentence, contending that he received the ineffective assistance of trial counsel when: (a) counsel allowed him to plead guilty, despite counsel's knowledge that Wells had been in the "mental health psych ward" of the jail where he was held; (b) counsel allowed Wells to tell the court that he was not on medication at the time of his guilty plea, when he actually was on medication; and (c) counsel failed to investigate Wells's mental competency despite knowing that Wells had been having "mental episodes."
The Department of Public Advocacy moved to withdraw as counsel and to allow Wells to proceed pro se. The court granted the motion to withdraw.
The circuit court denied Wells's RCr 11.42 and CR 60.02 motions in a single order. First, the court found that Wells had not met "the high standard required for a successful CR 60.02 motion." The court stated that Wells alleged "that he did not realize there were two counts of Robbery included in the plea and further allege[d] that it [was] illegal for him to be charged with two counts of Robbery as this was one incident." The circuit court found this claim to be meritless because "under KRS 515.020, each individual victim can result in individual and separate counts of Robbery in the First Degree. Furthermore, Mr. Wells was present and participated in the plea hearing. The Court went over the charges and the offer on the plea and Mr. Wells acknowledged both."
Kentucky Revised Statute. --------
Second, as for the RCr 11.42 motion that Wells had filed, the circuit court noted that Wells claimed "counsel failed to investigate [Wells's] mental soundness and [Wells] therefore received [the] ineffective assistance of counsel. He further alleges counsel was ineffective because he knowingly and fraudulently withheld from the court his knowledge that Mr. Wells was mentally incapacitated at the time of his plea." However, the circuit court found that Wells's claims lacked merit because during the plea colloquy, "[d]efense counsel acknowledged . . . that he was aware of Mr. Wells'[s] mental health issues but stated that there was never a question of competency." Thus, the court held that Wells failed to show his guilty plea was not knowingly, voluntarily, and intelligently entered. Consequently, Wells's motions to set aside his sentence pursuant to RCr 11.42 and CR 60.02 were denied.
Wells now appeals, contending that the circuit court erred in denying his RCr 11.42 motion because he received the ineffective assistance of trial counsel when counsel: (a) failed to divulge Wells's mental status to the trial court at the plea hearing; and (b) failed to inform the trial court at the time Wells entered his guilty plea that Wells was on psychiatric medication.
II. ANALYSIS
We begin by noting that Wells does not raise on appeal the claims that he brought in his CR 60.02 motion. Therefore, those claims are deemed waived on appeal. See Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
We now turn to address Wells's appellate claims, which were brought in his RCr 11.42 motion in the circuit court. In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009) (citations omitted). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing . . . ." Where the trial court fails to hold an evidentiary hearing on an RCr 11.42 claim, appellate review is limited to "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). In other words, absent an evidentiary hearing, we will only affirm if the record is adequate to decide the claim.
A. WELLS'S MENTAL STATUS
Wells first asserts that he received the ineffective assistance of trial counsel when counsel failed to divulge Wells's mental status to the trial court at the plea hearing.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001).
Contrary to Wells's claim, counsel did discuss Wells's mental status with the court during the plea hearing, after Wells informed the court that he was bipolar and taking lithium for his bipolar disorder under the care of a physician. Counsel informed the court that he had met with Wells multiple times, both in court during pre-trial hearings and at the jail where Wells was incarcerated, and Wells always appeared competent and as though he understood what counsel was discussing with him. Therefore, counsel stated that there were no competency issues in this case.
Because counsel did discuss Wells's mental status with the court, Wells's claim that counsel rendered ineffective assistance in failing to do so lacks merit. Consequently, this claim fails.
B. PSYCHIATRIC MEDICATION
Wells also alleges that he received the ineffective assistance of trial counsel when counsel failed to inform the trial court at the time Wells entered his guilty plea that Wells was on psychiatric medication. However, Wells himself informed the court under oath that he was taking lithium for his bipolar disorder under the care of a physician at the time of the plea hearing, and he also testified that he was not taking other medications. Thus, there was no need for counsel to also inform the court that Wells was taking lithium. As for the other medications that Wells now claims he also was taking at the time of his plea colloquy, his testimony at the plea hearing proves otherwise, and Wells has offered no evidence to show that he was taking any other psychiatric medications at the time of his plea hearing. Therefore, he cannot show that counsel performed deficiently in failing to inform the court of other medications he was taking when he has failed to offer proof that he was taking other medications, and the record (through his own testimony) shows that he was not taking other medications. Consequently, this claim that Wells received the ineffective assistance of counsel lacks merit.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Richard Todd Wells
Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky