THOMAS C. SANDERS v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002915-MR
THOMAS C. SANDERS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN SHAKE, JUDGE
ACTION NO. 93-CR-01010
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
Thomas Carrol Sanders (Sanders) appeals an
order of the Jefferson Circuit Court entered on November 16,
1998, denying his motion for a full evidentiary hearing and to
vacate judgment.
We affirm.
On May 4, 1993, a Jefferson County Grand Jury indicted
Sanders on eight counts of robbery in the first degree and
thirteen counts of kidnaping.
Counts one through seven of the
indictment charged that Sanders had robbed various McDonalds
restaurants in the Louisville area in 1993.
Counts eight through
twenty-one charged that Sanders had attempted to rob a McDonalds
on April 25, 1993, which resulted in thirteen people being held
hostage by Sanders in the McDonalds until he surrendered to the
police.
Counsel for Sanders was appointed on May 6, 1993, and
the trial court scheduled the case to be tried by jury on October
12, 1993.
On October 12, 1993, the day trial was scheduled to
begin, Sanders withdrew his plea of not guilty and entered a plea
of guilty.
He entered an Alford plea to counts one through seven
of the indictment charging robbery in the first degree.
He pled
guilty to count eight of the indictment charging first degree
robbery and he pled guilty to thirteen counts of unlawful
imprisonment in the first degree.
The written plea agreement
with the Commonwealth, designated an "open plea", specified that
the Commonwealth would recommend to the trial court a sentence of
forty years but that Sanders could argue for a sentence of
twenty-five years.
On November 17, 1993, the trial court
sentenced Sanders to twenty years as to each of the eight counts
of robbery in the first degree and to five years for each count
of unlawful imprisonment in the first degree.
All counts were to
run concurrently except that the twenty year sentence under count
eight of the indictment, was to run consecutively with all other
sentences for a total of 40 years.
On September 17, 1997, Sanders filed an RCr. 11.42
motion to vacate judgment, with supporting memorandum, with the
trial court.
In addition, Sanders moved the trial court for
appointment of counsel and an evidentiary hearing.
On September
24, 1997, the trial court appointed counsel to represent Sanders.
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On July 22, 1998, Sanders filed a supplemental memorandum with
the trial court.
The Commonwealth did not respond to either the
original or the supplemental brief.
On November 16, 1998, the
trial court overruled Sanders's motion without holding an
evidentiary hearing.
This appeal followed.
On appeal, Sanders makes the following two arguments:
1.
That his guilty plea was not made
knowingly and voluntarily because
he received ineffective assistance
of counsel when counsel mis-advised
him concerning parole eligibility;
and
2.
That he received ineffective
assistance of counsel when counsel
failed to inform him of material
defects in the indictment, which
materially affected his decision to
plead guilty.
Where, as here, the trial court denies a motion for an
evidentiary hearing on an RCr. 11.42 motion, our 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."
411 S.W.2d 321, 322 (1967).
Lewis v. Commonwealth, Ky.,
If Sanders's allegations are refuted
by the record, no evidentiary hearing is required.
Hopewell v.
Commonwealth, Ky. App., 687 S.W.2d 153, 154 (1985).
The test for determining the validity of a guilty plea
is whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 164, 27
L.Ed.2d 162 (1970).
There must be an affirmative showing in the
record that the plea was intelligently and voluntarily made.
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Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23
L.Ed.2d 274 (1969).
Sanders argues that his guilty plea was not
made knowingly and voluntarily because he was denied effective
assistance of counsel.
He argues that his trial counsel mis-
advised him that if convicted he would be required to serve at
least one-half of any sentence imposed before being eligible for
parole.
Sanders maintains that if trial counsel had correctly
advised him that regardless of the sentence imposed he would have
been eligible for parole in eight years, he would not have plead
guilty and instead would have proceeded to trial.
Pursuant to the Sixth and Fourteenth Amendments to the
United States Constitution and Section 11 of the Kentucky
Constitution, a defendant is entitled to effective representation
by counsel.
Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77
L.Ed. 158 (1932); United States v. Ash, 413 U.S. 300, 93 S.Ct.
2568, 37 L.Ed.2d 619 (1973); Wedding v. Commonwealth, Ky.App.,394
S.W.2d 105 (1965).
In Sparks v. Commonwealth, Ky.App., 721
S.W.2d 726, 727-28 (1986), we held that:
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. (citations omitted).
Further, in Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir.
1988), the Sixth Circuit Court of Appeals held that gross mis-
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advice concerning parole eligibility can amount to ineffective
assistance of counsel.
Sanders argues that his trial counsel mistakenly
believed that if convicted, he would be sentenced as a violent
offender.
Under KRS 439.3401(3), as in effect at the time of
Sanders plea, provided:
A violent offender who has been convicted of
a capital offense or Class A felony with a
sentence of a term of years or Class B felony
who is a violent offender shall not be
released on parole until he has served at
least fifty percent (50%) of the sentence
imposed.
Violent offender was defined in KRS 439.3401(1) as:
... any person who has been convicted of or
plead guilty to the commission of a capital
offense, Class A felony, or Class B felony
involving the death of the victim, or rape in
the first degree or sodomy in the first
degree of the victim, or serious physical
injury to a victim.
Sanders maintains that his trial counsel advised him that if
convicted, he would be required to serve at least one-half of any
sentence imposed.
Thus, Sanders contends, based upon this
information, he chose to plead guilty.
Sanders argues that he now knows that he could not have
been sentenced as a violent offender.
Instead, even if given the
maximum sentence, he would have been eligible for parole in eight
years pursuant to 501 KAR 1:030.
Sanders further argues that
even if he had been sentenced as a violent offender, his trial
counsel failed to inform him that his parole eligibility would
have been "capped" at twelve years pursuant to Sanders v.
Commonwealth, Ky., 844 S.W.2d 391 (1992).
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Sanders maintains that
if he had been aware of these facts, he would not have plead
guilty and instead proceeded to trial.
Upon a thorough review of the record, we believe
Sanders’s allegations of being grossly misinformed regarding his
parole eligibility to be clearly refuted by the record.
Sanders
claims counsel informed him that he would be sentenced under the
violent offender statute, KRS 439.3401.
If this were true,
Sanders would have to serve fifty percent of any sentence before
being eligible for parole.
Nowhere in the record, including
arguments to the trial court, is there any mention of the violent
offender statute or serving fifty percent of the sentence.
To
the contrary, counsel for Sanders argued several times to the
trial court that no one was injured or hurt during the hostage
episode and that Sanders never demonstrated an intent to injure
or harm anyone.
Based upon the plea agreement, counsel obtained
an opportunity to argue for a twenty-five (25) year sentence
despite the overwhelming evidence of guilt and the potential for
a much longer sentence.
Counsel called several extremely
influential witnesses (prior teachers, coaches, etc.) and made a
strong case for a sentence of twenty-five (25) years with parole
eligibility in four (4) or five (5) years.
Counsel then argued
that if sentenced to forty (40) years, Sanders would not be
eligible for parole consideration for eight (8) years and that
would be detrimental to a young man like Sanders who had such
community support and could still be a productive member of
society.
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Several times during the sentencing hearing both
defense counsel and the prosecutor argued the parole eligibility
of four (4) or five (5) years versus eight (8) and why each
believed the court should sentence Sanders to twenty-five (25)
years or forty (40) years, accordingly.
Again no mention was
made of the violent offender statute or serving fifty percent of
any sentence prior to parole eligibility.
The record including
the videotape and written documentation, clearly indicate that
Sanders was fully advised of his constitutional rights.
The
uncontroverted record shows he freely, voluntarily, and knowingly
entered his guilty plea.
He had ample opportunity to confer with
his counsel and had been fully advised and stated he was
satisfied with counsel’s services.
The trial judge was
conscientious in assuring, on the record, that Sanders understood
the ramifications of waiving his constitutional rights and the
consequences of entering a guilty plea.
Moreover, despite Sanders’s claims to the contrary,
there is no reasonable probability that were it not for the
alleged misinformation as to parole eligibility that appellant
would not have pleaded guilty, but would have insisted on going
to trial.
The facts of the case were extremely damaging and the
evidence overwhelming.
There were numerous eye-witnesses and
Sanders had given incriminating statements.
From the video it is
clear that Sanders had become remorseful and wanted to put it all
behind him and move on.
There were many valid reasons for
Sanders to take the Commonwealth’s best offer, present mitigating
circumstances as to sentencing and hope the trial court would
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have “mercy” on him.
Trial counsel achieved a good deal from the
Commonwealth and presented a strong case of mitigating
circumstances and community support.
The fact that the trial
court remained unsympathetic and sentenced Sanders to forty years
based upon the seriousness of the crimes is not surprising.
However, to claim counsel’s performance reached the level of
ineffective assistance is to ignore the record in this case.
Sanders next contends that he received ineffective
assistance of counsel when his trial counsel failed to inform him
of material defects in the indictment.
Specifically, Sanders
claims that the indictment failed to state an offense because the
victims were listed as businesses (specifically McDonalds).
At
the time of his indictment, Stark v. Commonwealth, Ky., 828
S.W.2d 603 (1991), overruled by Thomas v. Commonwealth, Ky., 931
S.W.2d 446 (1996), was controlling law in this state.
In Stark,
the Kentucky Supreme Court held that four counts of an indictment
did not state an offense because the counts indicated that the
victim of the robbery was a business or a place.
The wording of
the indictments in Stark read as follows:
That on or about the 23rd of April, 1989, in
Jefferson County, Kentucky, the above named
defendant, William Ray Stark, Jr., committed
the offense of Robbery in the First Degree,
by threatening the immediate use of physical
force upon Moby Dick Restaurant, 2700 South
Third Street while armed with a gun, and in
the course of committing a theft.
Stark 828 at 605.
The Supreme Court held that "[a]n indictment
alleging robbery in the first degree accomplished by threatening
the immediate use of physical force upon Moby Dick Restaurant ...
simply fails to state an offense.
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Inanimate objects or
businesses may not be the victim of robbery as provided by the
statute.
Robbery can be committed only against a person." Id. at
606.
However, Sanders's indictments did not list businesses
as the victims as he would have this court believe.
The
indictments in question were worded as follows:
That on or about [date] in Jefferson County,
Kentucky, the above-named defendant, Thomas
Carrol Sanders, committed the offense of
Robbery in the First Degree when, in the
course of committing theft, he used or
threatened the immediate use of physical
force upon employees of McDonalds [address]
and with the intent to accomplish theft he
was armed with a deadly weapon.
(emphasis added).
Clearly, the indictments listed the employees,
although not named specifically, as the victims.
An "employee"
is defined as a "person in the service of another under any
contract for hire, express of implied, oral or written, where the
employer has the power or right to control and direct the
employee in the material details of how the work is
performed....”
Black's Law Dictionary 525 (6th Ed. 1990)
(emphasis added).
We find no authority that required
the indictments to specifically state the name of each victim.
As such, the indictments did not contain material defects.
For the foregoing reasons, the trial court's decision
denying Sanders’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher F. Polk
Assistant Public Advocate
Louisville, KY
A. B. Chandler, III
Attorney General
Brian T. Judy
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Assistant Attorney General
Frankfort, KY
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