ROBERT ANTHONY MILLER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002432-MR
ROBERT ANTHONY MILLER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 95-CR-002129
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE: Robert Anthony Miller, pro se, has appealed from
an order entered by the Jefferson Circuit Court on August 6,
1999, which inter alia denied his motion to amend his previous
motion to vacate, set aside or correct judgment of conviction and
sentence pursuant to RCr1 11.42 and CR2 60.02, which had been
denied by an opinion and order entered on July 26, 1999.
Having
concluded that the trial court did not abuse its discretion in
denying the motion to amend, we affirm.
Miller was indicted by a Jefferson County grand jury on
August 23, 1995, for murder,3 robbery in the first degree,4 and
tampering with physical evidence5 following the death of Earl
Buchannon on August 13, 1995.
Tammy Jo Harper was indicted with
Miller and charged with robbery in the first degree and tampering
with physical evidence.
To support the trial court’s acceptance
of Miller’s guilty plea, the Commonwealth stated that Harper
would have testified that she called Buchannon and asked him to
meet with her at her residence under the pretense of her paying
him some money she owed him, but that her and Miller’s intentions
were to rob Buchannon.
When Buchannon arrived, Miller beat him
with a brick causing severe head and facial injuries.
Once
unconscious, Miller robbed Buchannon and dumped his body into the
trunk of a car.
Miller drove the car to a different location and
abandoned the car, leaving Buchannon to die.
The Commonwealth
further contended that a friend of Harper would testify that she
overheard Harper’s telephone conversation with Buchannon,
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Rules of Civil Procedure.
3
Kentucky Revised Statutes (KRS) 507.020.
4
KRS 515.020.
5
KRS 524.100.
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observed Miller striking Buchannon with the brick and overheard
Miller say that he had put Buchannon in the trunk.
The Commonwealth agreed not to seek the death penalty
for Miller if he would enter an “open” plea of guilty to murder.
The Commonwealth would then ask the trial court to give Miller a
life sentence, and Miller would argue for the minimum 20-year
sentence.
Miller would also plead guilty to robbery in the first
degree and tampering with physical evidence, and receive the
respective maximum sentences of 20 years and five years.
On February 16, 1996, Miller accepted the
Commonwealth’s offer and he and his attorney, David Kaplan,
signed the “Commonwealth’s Offer on a Plea of Guilty” and a
“Motion to Enter Guilty Plea.”
However, when Judge Conliffe
attempted to take Miller’s guilty plea at a hearing on February
16, Miller claimed that he could not remember committing these
crimes against Buchannon.
The trial court adjourned the hearing.
Miller and his attorney signed a second “Commonwealth’s
Offer on a Plea of Guilty” and “Motion to Enter Guilty Plea
Pursuant to North Carolina v. Alford,”6 on April 17, 1996.
At
the hearing on April 17, Judge Conliffe conducted the guilty plea
colloquy and noted that Miller was entering an Alford plea.
The
trial judge advised Miller of his Boykin7 rights and noted that
Miller was entering an “open” guilty plea, with the Commonwealth
6
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d. 162 (1970).
7
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969).
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choosing not to seek the death penalty but instead to argue for a
life sentence and the defense to argue for the minimum 20-year
sentence.
The trial court accepted Miller’s plea of guilty and
scheduled a sentencing hearing.
Following a sentencing hearing on June 24, 1996, the
trial court on June 28, 1996, entered a judgment sentencing
Miller to a life sentence for the murder of Buchannon, 20 years
for robbery in the first degree, 5 years for tampering with
physical evidence, for a total sentence of life.
On June 16, 1999, Miller filed a motion to vacate his
life sentence pursuant to RCr 11.42 and CR 60.02.
Miller claimed
pursuant to Boykin that his constitutional rights were violated
because his guilty plea had not been entered intelligently,
knowingly and voluntarily.
Specifically, Miller claimed that the
trial court erred by not allowing him to have his sentence
imposed by a jury as provided for in RCr 9.84(2).8
Miller also
argued that he had received ineffective assistance of counsel.
The trial court entered an opinion and order on July
26, 1999, denying both motions.
The trial court ruled that all
of Miller’s claims could be resolved on the record without the
need for an evidentiary hearing.9
The trial court summarized
Miller’s motion by stating, “[t]he Defendant’s main argument is
8
RCr 9.82(2) provides: “When a defendant enters a plea of
guilty the court may fix the penalty, except that in cases
involving offenses punishable by death the defendant may demand
that his or her punishment be fixed by the jury.”
9
RCr 11.42(5); Hopewell v. Commonwealth, Ky.App., 687 S.W.2d
153 (1985).
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that he might have received a lighter sentence had a jury
sentenced him instead of the Court.”
The trial court then noted
that under Boykin “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.”10
The trial court also ruled that Miller “was provided
with effective assistance of counsel.”
On August 5, 1999, Miller filed a “Motion to
Reconsider,” wherein he asked the trial court “to reconsider its
Opinion and Order entered on July 26, 1999, and to further allow
the Defendant to amend and supplement his RCr 11.42 motion filed
with this Court.”
In support of his motion to amend his original
RCr 11.42 motion, Miller argued that “he is only entitled to
submit one (1) RCr 11.42 motion to the courts, and since he would
be forever after precluded from raising all issues which should
have been raised on an RCr 11.42 motion, that it would be a
‘palpable error’ to refuse to allow him to raise the substantial
issues of violations of his constitutional rights which should
have been raised on his original RCr 11.42 motion.”
Miller set
forth the following general grounds for relief:
A.
Counsel failed to perform adequate
preparation and to know the law and
facts governing the Defendant’s case.
B.
Counsel provided gross misadvice about
the Defendant’s plea bargain agreement
and failed to fulfill promises made to
the Defendant in coercing the
10
Boykin, supra (quoting Turner v. Commonwealth, Ky.App.,
647 S.W.2d 500, 501 (1982)).
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Defendant’s participation in the plea
bargain process.
C.
Counsel failed to learn the governing
caselaw authorities concerning
accomplice testimony and to adequately
explain those caselaw authorities to the
Defendant.
D.
The cumulative effect of all of
counsel’s errors.
These instances of ineffective assistance of
counsel violated the rights secured to
Defendant by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution
and Section 11 and 14 of the Kentucky
Constitution.
In his memorandum in support of his motion, Miller more
specifically claimed: (1) “the Defendant only saw his attorney
one (1) time, other than pretrial appearances”; (2) “Mr. Kaplan
also refused to accept phone calls from the Defendant”; (3) “the
Defendant never obtained copies of the discovery responses filed
by the Commonwealth in this case”; (4) “[t]he Defendant was
totally unaware of what, if any, information that the
Commonwealth might have”; (5) “Mr. Kaplan never reviewed this
information with the Defendant, never explained the elements of
the charges to the Defendant, and never asked the Defendant for
his explanation of what happened or otherwise pursued any type of
defense to the charges against the Defendant”; (6) the attorney
told Miller, his mother and his aunt that if Miller would plead
guilty “I’ll get you twenty (20) years”; and (7) “Counsel also
told the Defendant to ‘just agree with anything that the Judge
says’”.
Miller claimed in his memorandum that he had a defense
to the murder charge:
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In the instant case, counsel’s failure
to adequately prepare to defend the Defendant
poisoned the entire defense. Counsel never
consulted with the Defendant about what had
transpired on the day of the crime. Counsel
never learned that Defendant’s account of the
events of that night were totally different
than the account provided by co-defendant
Tammy Jo Harper. Counsel never learned that
the Defendant was well aware of the victim’s
reputation as a drug dealer, a former prison
inmate, and a very violent individual.
Counsel never learned that the Defendant
maintained that he and the victim had argued
because of money owed to the victim by codefendant Tammy Jo Harper for drugs that the
victim had provided, and that during the
course of this argument the victim made
repeated violent threats, and that only after
the victim had shouted, “I’ll take care of
you right now!” did the Defendant and victim
begin to scuffle, and that because [sic] the
Defendant was in fear for his life.
Had counsel discussed the case, even
briefly, with the Defendant, counsel would
have been aware of the substantial defense
available to the Defendant of self-defense,
and the probability that, had the Defendant
taken the case to trial, that a jury would
have only convicted the Defendant of some
degree of Manslaughter, rather than the
primary offense of Murder. The resulting
difference of sentence imposed upon the
Defendant would have been sufficient for the
Defendant to have demanded that the case go
to trial.
Had counsel researched the relevant case
law authorities, and discussed the case with
the Defendant, he would have learned of the
substantial defense of self-defense which was
available to the Defendant, and counsel would
not have advised the Defendant to plead
guilty to the charges against him. Had the
Defendant been properly advised concerning
the state of the law, he would have refused
to plead guilty and instead would have
availed himself of his right to proceed to a
jury trial.
Our standard of review is limited to determining
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whether the trial court abused its discretion in refusing to
allow Miller to amend his RCr 11.42 motion.11
“While liberality
in granting leave to amend is desirable, the application is
addressed to the sound discretion of the trial judge.
Where, as
in this instance, abuse of discretion is not shown clearly, the
action of the trial judge will not be disturbed.”12
“Though CR
15.01 provides that leave to amend “shall be freely given when
justice so requires,” it is still discretionary with the trial
court, whose ruling will not be disturbed unless it is clearly an
abuse.”13
Accordingly, the order of Jefferson Circuit Court
entered on August 6, 1999, is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert Anthony Miller, Pro Se
LaGrange, KY
A.B. Chandler, III
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, KY
11
CR 15.01; Givens v. Boutwell, Ky.App., 701 S.W.2d 146, 147
(1985).
12
Bradford v. Billington, Ky., 299 S.W.2d 601, 603 (1957).
13
Graves v. Winer, Ky., 351 S.W.2d 193, 197 (1961) (citing
Bradford, supra).
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