JAMES NOEL v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 21, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000733-MR
JAMES NOEL
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DANNY P. CAUDILL, JUDGE
ACTION NO. 81-CR-00058
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND TACKETT, JUDGES.
BARBER, JUDGE:
James Noel (“Noel”) appeals from an order of the
Floyd Circuit Court denying his Kentucky Rules of Criminal
Procedure (RCr) 11.42 motion.
After reviewing the record, we
affirm.
On October 14, 1980, the charred body of a male was
discovered in the burned residence of Edna Patrick.
The body
initially was believed to be that of Noel, who is Edna Patrick’s
brother-in-law, but an autopsy indicated it was a young male
later identified as James Neimi.
An investigation revealed that
six days prior to the fire, Noel procured a $100,000 life
insurance policy naming Denver Patrick, Edna’s husband,
beneficiary.
During an interview with Noel and Denver Patrick,
they admitted to conspiring to kill Neimi to collect the
insurance, but each accused the other of committing the murder.
On January 28, 1982, Noel pled guilty to murder (KRS
507.020) and first-degree arson (KRS 513.020) pursuant to a plea
agreement with the Commonwealth, which recommended sentences of
life imprisonment for murder and twenty years for arson to run
consecutively.
On February 12, 1982, the trial court rejected
Noel’s request for concurrent sentencing and sentenced him to
consecutive sentences of life and twenty years in prison for the
two offenses.
On September 6, 1994, Noel filed an RCr 11.42 motion
alleging that he was not advised of his constitutional rights
prior to the guilty plea, that his guilty plea was involuntary,
and that he received ineffective assistance of counsel.
On
August 14, 1998, the trial court entered an order denying the
motion, holding that the record indicated Noel’s guilty plea was
entered intelligently, knowingly, and voluntarily, and that he
had received effective assistance of counsel.
This appeal
followed.
Noel argues on appeal that his plea was not entered
knowingly, intelligently and voluntarily, that he received
ineffective assistance of counsel, and that his sentence is void
because it exceeds the allowable time.
He contends that his
guilty plea was invalid because it was coerced.
Noel asserts
that the jail condition was so deplorable that he agreed to plead
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guilty to facilitate transport to the state penitentiary, which
had better conditions.
He also claims he felt coerced by a
statement from his attorney that he would be convicted and
receive the death penalty at a trial.
In order to be valid, a guilty plea must be voluntary,
knowing and intelligent.
Boybin v. Alabama, 395 U.S. 238, 89
S.Ct. 1709, 23 L.Ed.2d 274 (1969); Tollett v. Henderson, 411 U.S.
258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
The validity of a
guilty plea, however, is determined from the totality of the
circumstances surrounding it rather than from reference to some
specific key words recited at the time it was taken.
Kotas v.
Commonwealth, Ky. App., 565 S.W.2d 445, 447 (1978); Sparks v.
Commonwealth, Ky. App., 721 S.W.2d 726, 727 (1986).
A
defendant’s statements made at the guilty plea hearing are solemn
declarations that carry a strong presumption of verity and should
not be lightly cast aside.
Blackledge v. Allison, 431 U.S. 63,
73, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1976); Zilch v. Reid, 36
F.3d 317, 320 (3rd Cir. 1994).
Any claims that conflict with the
statements made during the guilty plea hearing face a formidable
barrier in a collateral proceeding challenging the voluntariness
of the plea.
Blackledge, supra; Lasiter v. Thomas, 89 F.3d 699,
702-03 (10th Cir.), cert. denied, 519 U.S. 998, 117 S.Ct. 493,
136 L.Ed.2d 386 (1996).
A review of the guilty plea colloquy refutes Noel’s
claims of coercion.
He denied that any threats had been made to
entice him to plead guilty.
He responded affirmatively when
asked if he was pleading guilty “willingly, freely, voluntarily,
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and without any threats or force or promises or pressure from any
person or persons to cause you to so plead?”
Moreover, defense
counsel’s statement that he would receive a death sentence at
trial does not constitute coercion but rather was a legal
assessment by counsel of the case given the evidence including
Noel’s confession.
Noel’s complaint about jail conditions could
and should have been raised prior to the guilty plea.
Viewing
the totality of the circumstances, he has not shown the guilty
plea was coerced or involuntary.
See, e.g., Camillo v. Wyrick,
640 F.2d 931 (8th cir. 1981) (treatment and threats in jail did
not support claim of coercion for guilty plea.)
Noel also asserts that his attorney rendered
ineffective assistance.
In order to establish ineffective
assistance of counsel, a person must satisfy a two-prong test
showing that counsel’s performance was deficient and that the
deficiency caused actual prejudice affecting the outcome of the
proceeding.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); Osborne v. Commonwealth, Ky. App.,
992 S.W.2d 860 (1998).
Where an 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 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 pled guilty but would have insisted on
going to trial.
Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985); Russell v. Commonwealth, Ky. App., 992 S.W.2d
-4-
871 (1999).
The burden is on the defendant to overcome a strong
presumption that counsel’s assistance was constitutionally
sufficient.
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;
Commonwealth v. Pelfrey, Ky., 998 S.W.2d 460, 463 (1999).
An
attorney has the “duty to make reasonable investigation or make a
reasonable decision that makes particular investigations
unnecessary under all the circumstances and applying a heavy
measure of deference to the judgment of counsel.”
Commonwealth, Ky., 41 S.W.3d 436, 446 (2001).
Haight v.
See also Baze v.
Commonwealth, Ky., 23 S.W.3d 619, 625 (2000), cert. denied,
______ U.S. _____, 121 S.Ct. 1109, 148 L.Ed.2d 979 (2001).
Noel alleges that his attorney did not interview
prospective witnesses, conduct a sufficient investigation, or
spend sufficient time discussing the case with him.
fail because they lack any specificity.
These claims
He provides no facts on
what information counsel could or should have uncovered.
He does
not identify the witnesses counsel did not interview or the
information they could have conveyed.
Defense counsel had been
provided extensive discovery including police, forensic, and
autopsy reports.
We note that during the guilty plea hearing,
Noel stated that he had consulted with his attorney, that he had
had all the time he desired to confer privately with his attorney
that he felt was necessary before entering the plea, and that he
was satisfied with the services his attorney had provided for
him.
Again, Noel has not identified how any lack of consultation
with his attorney prejudiced him.
Noel has not shown either
deficient performance or actual prejudice sufficient to
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constitute ineffective assistance of counsel.
See Baze, 23
S.W.3d at 625.
The final issue concerns the validity of Noel’s
sentence.
He contends that the sentence is void because it
exceeds statutory limitations.
Relying on Wellman v.
Commonwealth, Ky., 694 S.W.2d 696 (1995), Noel maintains this
issue involves subject matter jurisdiction and can be raised at
any time.
We agree with Noel that following his conviction, the
Kentucky Supreme Court established in Bedell v. Commonwealth,
Ky., 870 S.W.2d 779 (1993), that the maximum cumulative sentence
for multiple offenses under KRS 532.110 (1)(c) life imprisonment.
See also Hallowman v. Commonwealth, Ky., 37 S.W.3d 764, 770
(2001); Mabe v. Commonwealth, Ky., 884 S.W.2d 668 (1994).
Therefore, Noel’s sentence of consecutive terms of life plus
twenty years exceeded the statutory limitations.
However, as the Kentucky Supreme Court indicated in the
recent case of Myers v. Commonwealth, Ky., 42 S.W.3d 594 (2001),
the imposition of an unauthorized sentence does not necessarily
implicate subject matter jurisdiction.
Proper jurisdiction is
not lost merely because the court makes a factual or legal error.
The Supreme Court stated, “It is simply incorrect to say that a
court is without jurisdiction to impose an unauthorized sentence.
Rather, the imposition of an unauthorized sentence is an error
correctable by appeal, by writ, or by motion pursuant to RCr
11.42 or CR 60.02.”
Id. at 596.
An excessive sentence is not
entirely void but rather that portion within the statutory limits
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is valid and that portion in excess is voidable and subject to
attack.
Id. at 596-97 (citing Dep’t. of Public Welfare v.
Polsgrove, 245 Ky. 159, 53 S.W.2d 341 (1932) and Neace v.
Commonwealth, Ky., 978 S.W.2d 319 (1998)).
In this case, Noel did not raise the issue of resentencing based on excessiveness in his RCr 11.42 motion.
Moreover, counsel appointed to represent Noel on the motion in
circuit court did not attempt to raise this issue in a document
supplementing the initial motion.
As an appellate court, our
role is to review errors by the trial court.
Consequently, we
generally will not review issues not presented to the trial court
and that are raised for the first time on appeal.
See, e.g.,
Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225, 228
(1989)(“[T]he Court of Appeals is without authority to review
issues not raised in or decided by the trial court.”);
Commonwealth v. Lavitt, Ky., 882 S.W.2d 678, 680 (1994).
Noel
erroneously classifies this issue as jurisdictional and thus,
subject to being raised at any time.
We believe that his failure
to present this issue to the trial court effectively waived it
for consideration by this Court.
The order of the Floyd Circuit Court is affirmed.
TACKETT, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN PART AND DISSENTS IN PART BY
SEPARATE OPINION.
COMBS, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
My comments refer solely to the attack upon the imposition
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of the excessive sentence.
Myers v. Commonwealth, supra, holds
that the issue of subject matter jurisdiction does not underlie
the imposition of an unauthorized sentence.
Therefore, that
issue could not properly be raised before this court at this
juncture in light of the failure to raise it before the trial
court in the original RCr 11.42 proceeding.
However, the appellant is entitled to rely on Bedell v.
Commonwealth, supra, which held that life imprisonment is indeed
the maximum cumulative sentence that may be imposed for multiple
offenses subject to KRS 532.110(1)(c), a case decided subsequent
to his conviction.
Myers held that regardless of the issue of
whether subject matter jurisdiction is the proper procedural
means of attacking an unauthorized sentence, that portion of a
sentence that exceeds statutory limits is indeed voidable and
susceptible of attack.
Although he failed to raise this issue in
his RCr 11.42 motion below, the severability of the excessive
portion of the sentence would appear to be palpable error that we
could nonetheless address at this juncture in the interest of
judicial economy pursuant to RCr 10.26:
A palpable error which affects the
substantial rights of a party may be
considered by the court on a motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error. (Emphasis added).
The trial court committed no error since Bedell
superseded the sentencing.
However, the sentence is voidable
under the Bedell holding with the excessive portion severable
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under Myers.
I would simply remand this part of the judgment to
the trial court for correction pursuant to the joint directives
of Bedell and Myers: that that portion of the sentence exceeding
life imprisonment be excised.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
Attorney General
John E. Zak
Assistance Attorney General
Frankfort, Kentucky
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