CLARENCE E. GREEN V. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-3195-MR
CLARENCE E. GREEN
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 80-CR-00035
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
DYCHE, HUDDLESTON, and KNOPF, JUDGES.
KNOPF, JUDGE.
Clarence Green, acting pro se, appeals an order
of the Campbell Circuit Court entered on November 7, 1996,
denying his motion to vacate, set aside or correct judgment
brought pursuant to Rule of Criminal Procedure (RCr) 11.42,
wherein he sought an amended sentence.
We affirm.
On February 29, 1980, the Campbell County Grand Jury
indicted Green in Case No. 80-CR-035 on one (1) felony count of
capital murder (KRS 507.020).
On August 26, 1980, Green entered
a guilty plea to the amended charge of first-degree manslaughter
(KRS 507.030) pursuant to a plea agreement with the Commonwealth,
according to which the Commonwealth recommended a sentence of
fifteen (15) years.
On September 8, 1980, the circuit court
sentenced Green to serve fifteen (15) years in prison consistent
with the plea agreement.
At the time of the guilty plea and
sentencing, Green was on probation in Case No. 79-CR-158 for a
1979 conviction in Kenton County involving first-degree sodomy
for which he received a suspended twenty-year (20) sentence.
In October 1986, Green filed an RCr 11.42 motion
challenging the manslaughter guilty plea in Case No. 80-CR-035
based on ineffective assistance of counsel and insufficient
evidence.
On December 18, 1986, the circuit court denied the
motion and Green appealed.
to withdraw his appeal.
In August 1987, Green filed a motion
On October 6, 1987, this court issued an
order granting his motion to withdraw and dismissed the appeal.
On October 2, 1996, Green filed a second RCr 11.42 motion, titled
"Motion to Correct Sentence," seeking to have the fifteen-year
(15) sentence in Case No. 80-CR-035 run concurrently with the
twenty-year (20) sentence in Case No. 79-CR-158.
On November 7,
1996, the circuit court denied the RCr 11.42 motion.
This appeal
followed.
Green argues the trial court erred by failing to
designate explicitly in the final judgment in Case No. 80-CR-05
whether the manslaughter sentence would run concurrently or
consecutively with any other sentence as required by RCr 11.04.
He further contends that the trial court and defense counsel
should have stated clearly to him "how the sentence would or
could be served in relation to any other sentence he may have
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been serving or was to serve."
Green asserts that his prospects
for parole have been detrimentally affected by the alleged
ambiguity in the judgment as to sentencing because the Department
of Corrections has determined the manslaughter and sodomy
sentences should run consecutively.
Green's first argument that the judgment is erroneous
because it fails to explicitly state whether the manslaughter
sentence would run concurrently or consecutively with any other
sentence is clearly without merit.
As the trial court indicated,
Green's reliance on RCr 11.04 is misplaced.
relevant part:
RCr 11.04 states in
"A judgment of conviction shall set forth . . .
the adjudication and sentence . . . .
If two (2) or more
sentences are imposed, the judgment shall state whether they are
to be served concurrently or consecutively."
In October 1979,
the Kenton Circuit Court suspended the twenty-year (20) sentence
on sodomy and placed Green on probation for a period of five (5)
years.
Green's probation was revoked and the twenty-year (20)
sentence was reinstated on November 18, 1980, only after he had
been sentenced in the manslaughter case.
The only offense
involved in Case No. 80-CR-035 was the manslaughter conviction.
Consequently, RCr 11.04 did not apply to the judgment in Case No.
80-CR-035, and the trial court committed no error in failing to
designate whether the sentence would run concurrently or
consecutively with any other sentence.
Moreover, as a matter of law, Green would not be
entitled to have the manslaughter and sodomy sentences run
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concurrently.
Under KRS 533.060(2), the sentence for a felony
committed while a person is on probation for conviction of
another felony may not run concurrently with any other sentence.
As a result, this statute mandates that the fifteen-year (15)
sentence for manslaughter in Case No. 80-CR-035 not run
concurrently with the twenty-year (20) sentence for sodomy in
Case No. 79-CR-158.
Green's second argument that the trial court erred by
failing to inform him that the manslaughter sentence could run
consecutive to other sentences equally is without merit.
In
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51 (1990), the
Court rejected a similar argument after the appellant challenged
the validity of a guilty plea because the trial court failed to
specifically tell him the ten-year (10) sentence on the guilty
plea would have to run consecutively with other judgments against
him.
The Court stated, "A knowing, voluntary, and intelligent
waiver does not necessarily include a requirement that the
defendant be informed of every possible consequence and aspect of
the guilty plea."
799 S.W.2d 55 (quoting Turner v. Commonwealth,
Ky. App., 647 S.W.2d 500 (1982)).
Similarly, the trial court was
not required to inform Green on how the conviction and sentence
would affect collateral issues such as his parole hearings,
prison classification, or prison program participation.
Green's final argument involves a claim of ineffective
assistance of counsel.
A guilty plea may be rendered invalid if
the defendant received constitutionally ineffective assistance of
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counsel under the Sixth Amendment.
Hill v. Lockhart, 474 U.S.
52, 56-57, 106 S. Ct. 366, 369, 80 L. Ed. 2d 203 (1985); Shelton
v. Commonwealth, 928 S.W.2d 817 (1996).
In order to establish
ineffective assistance of counsel, a person must satisfy a twopart test showing that counsel's performance was deficient and
the deficiency resulted in actual prejudice affecting the
outcome.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, Ky.,
702 S.W.2d 37 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct.
3311, 92 L. Ed. 2d 724 (1986).
Prejudice focuses on whether
counsel's deficient performance renders the result of the
proceeding unreliable or fundamentally unfair.
Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844, 122 L. Ed. 2d
180 (1993).
Where appellant challenges a guilty plea based on
ineffective counsel, he must show both that counsel made serious
errors outside the wide range of professionally competent
assistance, McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct.
1441, 1449, 25 L. Ed. 2d 763 (1970), and 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.
U.S. at 58, 106 S. Ct. at 370;
Hill v. Lockhart, 474
accord Sparks v. Commonwealth,
Ky. App., 721 S.W.2d 726, 727-28 (1986).
The burden is on the
movant to overcome a strong presumption that counsel's assistance
was constitutionally sufficient.
Strickland v. Washington, 466
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U.S. at 689, 104 S. Ct. at 2065; Wilson v. Commonwealth, Ky., 836
S.W.2d 872, 878 (1992), cert. denied, 507 U.S. 1034, 113 S. Ct.
1857, 123 L. Ed. 2d 479 (1993).
In the case sub judice, Green stated in the original
RCr 11.42 motion that he was not arguing that his guilty plea was
not entered knowingly and intelligently.
First, we note that
Green's discussion of this allegation is extremely ambiguous and
lacks the specificity generally required for ineffective
assistance claims under RCr 11.42.
See, e.g., Bartley v.
Commonwealth, Ky., 463 S.W.2d 321, 322 (1970); Thomas v.
Commonwealth, Ky., 459 S.W.2d 72 (1970). Even assuming without
deciding that counsel's performance was deficient, Green has not
established actual prejudice.
He has not alleged that if counsel
had provided more extensive information on the ramifications of
his guilty plea on other convictions, he would not have pled
guilty and would have gone to trial.
See Hill v. Lockhart, 474
U.S. at 60, 106 S. Ct. at 371 (failure of petitioner to allege he
would have insisted on going to trial if counsel had provided
correct information on parole eligibility created lack of
prejudice for ineffective assistance of counsel claim).
Green
has challenged only the sentencing portion of the conviction, and
counsel's performance did not impact that aspect of the
proceeding.
Therefore, Green has not demonstrated that the
result of the proceeding was unreliable in that it was reasonably
likely the outcome would have been different.
466 U.S. at 696, 104 S. Ct. at 2069.
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See Strickland,
In addition, Green is not entitled to relief based on
procedural grounds.
In Gross v. Commonwealth, Ky., 648 S.W.2d
853, 857 (1983), the Court indicated that final disposition of an
RCr 11.42 motion or waiver of the opportunity to make it acts to
conclude all issues that reasonably could have been presented in
a proceeding on that motion.
The rule prohibiting successive RCr
11.42 motions is well established.
See Caudill v. Commonwealth,
Ky., 408 S.W.2d 182 (1966); Satterly v. Commonwealth, Ky., 441
S.W.2d 145 (1969).
Concomitantly, RCr 11.42 requires petitioners
to raise all grounds known to them at the time in a single
motion.
RCr 11.42(3) states:
The motion shall state all grounds for
holding the sentence invalid of which the
movant has knowledge. Final disposition of
the motion shall conclude all issues that
could reasonably have been presented in the
same proceeding.
See also Shepherd v. Commonwealth, Ky., 477 S.W.2d 798
(1972)(fourth RCr 11.42 motion dismissed for failure to
demonstrate reason why grounds for motion were not raised in
earlier motions); Case v. Commonwealth, Ky. App., 467 S.W.2d 367
(1971).
Moreover, failure to receive a decision on the merits
upon appeal from an earlier RCr 11.42 motion does not preclude
dismissal of a subsequent motion.
In Szabo v. Commonwealth, Ky.,
458 S.W.2d 167 (1970), the Court indicated that a petitioner who
abandons the appeal of his initial RCr 11.42 motion is not
entitled to relief on a second RCr 11.42 motion even though there
has never been an appellate post-conviction review on the merits
of his initial motion.
See also Lycans v. Commonwealth, Ky., 511
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S.W.2d 233 (1974)(when appeal is not perfected or is dismissed,
petitioner is not permitted to file a subsequent RCr 11.42
motion).
In Green's first RCr 11.42 motion filed in October
1986, he raised a claim of ineffective assistance of counsel with
respect to the guilty plea based on several grounds.
Although he
did not specifically discuss counsel's alleged failure to inform
him of the possible consecutive sentencing, this issue could have
been raised in the initial RCr 11.42 motion.
The current appeal
involves a second RCr 11.42 motion, and is subject to dismissal
as a successive RCr 11.42 motion.
For the foregoing reasons, we affirm the order of the
Campbell Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Clarence E. Green, Pro Se
LaGrange, Kentucky
A.B. Chandler III
Attorney General
Joseph R. Johnson
Assistant Attorney General
Frankfort, Kentucky
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