THOMAS EDWARD VICKERY v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 20, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001048-MR
THOMAS EDWARD VICKERY
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE EDWIN M. WHITE, JUDGE
ACTION NO. 98-CR-00449
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND JOHNSON, JUDGES.
BARBER, JUDGE.
Thomas Edward Vickery (“Vickery”) appeals from an
order of the Christian Circuit Court denying his motion to vacate
his guilty plea and ten-year sentence for first-degree
manslaughter.
Vickery contends that he was incompetent to enter
the plea; that his plea was not knowingly, intelligently, or
voluntarily entered; that he should have been convicted for
reckless homicide instead of first-degree manslaughter; and that
he received ineffective assistance of counsel in conjunction with
his entry of the guilty plea.
We affirm.
On February 5, 1998, Vickery was arrested and charged
with the murder of his roommate, Bill Delaney.
Upon motion of
trial counsel, the trial court entered an order, on February 6,
1998, directing that Vickery submit to psychiatric testing at the
Kentucky Correctional Psychiatric Center (KCPC) in LaGrange,
Kentucky for a competency evaluation.
On May 20, 1998, KCPC
filed a report concluding that Vickery was competent to stand
trial.
For reasons not entirely clear from the record, on June
1, 1998, the trial court entered an order directing that Vickery
again be admitted to KCPC and to submit to further psychiatric
evaluations.
On August 5, 1998, the KCPC issued a report
consistent with its May 20th report.
On October 30, 1998,
Vickery was indicted for the murder of Bill Delaney. (KRS
507.020).
On July 22, 1999, Vickery filed a motion to enter a
plea of guilty in return for the Commonwealth’s offer to amend
the charge to first-degree manslaughter (KRS 507.030) and to
recommend a sentence of ten years.
On July 28, 1999, the trial
court entered judgment and sentence consistent with the plea
agreement.
On March 20, 2000, Vickery filed a motion to vacate his
judgment and sentence pursuant to the Kentucky Rules of Criminal
Procedure (RCr) 11.42.
On April 18, 2000, the trial court
entered an order denying Vickery’s motion.
This appeal followed.
First, Vickery contends that his judgment and sentence
should be vacated on the basis that the trial court accepted his
guilty plea notwithstanding that the court knew Vickery was
incompetent to enter such a plea.
Specifically, Vickery contends
that the trial court was well aware of his past history of mental
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instability, his mental state at the time of the plea, the
medication he was taking at the time of the plea, and based upon
this knowledge, the trial court should not have accepted the
plea.
We disagree.
On two occasions the trial court ordered that Vickery
be admitted to KCPC for psychiatric testing.
The results of the
tests confirmed that Vickery was aware of the nature of the
charges against him and that he was competent to stand trial.
In
addition, prior to accepting Vickery’s plea, the trial court
personally engaged in a colloquy with Vickery for the purposes of
assuring itself that Vickery was, at the time of the plea,
mentally capable of entering into a plea agreement and that he
was not rendered mentally incompetent to enter a plea as a result
of the drugs that had been prescribed by KCPC.
In summary, the
trial court’s knowledge of Vickery’s mental history and present
medical treatment was not a bar to its acceptance of his guilty
plea.
Second, Vickery contends that his plea of guilty was
not entered or made knowingly, intelligently, or voluntarily as
required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969) and Lewis v. Commonwealth, Ky., 472 S.W.2d 65
(1971).
Specifically, Vickery contends that his plea was not
knowingly, intelligently, and voluntarily entered because of his
mental condition and his psychiatric medication.
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.
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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.
Boykin v. Alabama, supra.
"[T]he validity of a guilty plea is
determined not by reference to some magic incantation recited at
the time it is taken but from the totality of the circumstances
surrounding it."
Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447
(1978) (citing Brady v. United States, 397 U.S. 742, 749, 90
S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970));
Sparks v.
Commonwealth, Ky. App., 721 S.W.2d 726, 727 (1986).
The record indicates that, in his motion to enter a
guilty plea, Vickery acknowledged that he understood the charges
against him, he described all of the facts surrounding the case
to his attorney, and his attorney counseled him at length as to
the nature and cause of each accusation against him.
The motion
stated that trial counsel had informed Vickery of any possible
defenses that he may have had.
The motion explained that Vickery
understood his right to plead not guilty; his right to a speedy
and public trial; his right to see, hear, and confront all
witnesses called against him; and the right to compel the
production of any evidence in his favor.
The motion further
acknowledges that Vickery’s decision to enter a guilty plea was
made freely, voluntarily and of Vickery’s own accord.
Before accepting Vickery’s guilty plea, at the July 22,
1999 hearing, the trial court engaged in a lengthy colloquy to
insure that Vickery understood the nature of the plea.
The trial
court advised Vickery of his constitutional rights and that by
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pleading guilty he would be waiving those rights.
Vickery stated
that he understood and still desired to plead guilty.
While
Vickery stated that in the past he had suffered from mental
disease and defect and was on medication, he acknowledged under
oath that his condition did not affect his thinking.
Further,
Vickery acknowledged that he knew where he was and why he was
there.
Vickery stated under oath that he was pleading guilty
willingly, freely, voluntarily and without any promise or
pressure to induce him to so plead.
Vickery’s conduct and
demeanor at the plea hearing confirms his sworn statement that
his plea was entered willingly, freely, voluntarily and that he
was not acting under the influence of a mental defect or
medication.
oath.
Vickery’s statements occurred in open court under
Solemn declarations in open court carry a strong
presumption of verity.
S.W.2d 51, 54 (1990).
Centers v. Commonwealth, Ky. App., 799
We are persuaded that Vickery’s guilty
plea was knowing, intelligent, and voluntary.
Vickery contends that, based upon the factual
allegations surrounding the shooting, his conviction should have
been limited to reckless homicide (KRS 507.050).
Specifically,
Vickery contends that because he did not actually intend to cause
the death of his roommate, the crime did not satisfy the mens rea
element of first-degree manslaughter; therefore, his plea of
guilty was improper.
KRS 507.030 provides that
(1) A person is guilty of manslaughter in the
first degree when:
(a) With intent to cause serious physical injury to another
person, he causes the death of such person or of a third person;
or
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(b) With intent to cause the death of another
person, he causes the death of such person or of a third person
under circumstances which do not constitute murder because he
acts under the influence of extreme emotional disturbance, as
defined in subsection (1)(a) of KRS 507.020.
“Extreme emotional disturbance is a temporary state of
mind so enraged, inflamed, or disturbed as to overcome one's
judgment, and to cause one to act uncontrollably from the
impelling force of the extreme emotional disturbance rather than
from evil or malicious purposes.”
McClellan v. Commonwealth,
Ky., 715 S.W.2d 464, 468 - 469 (1986).
Merely suffering from a
mental illness or substance abuse is insufficient to warrant an
instruction upon extreme emotional disturbance.
Stanford v.
Commonwealth, Ky. 793 S.W.2d 112, 115 (1990).
The record shows that Vickery killed Bill Delaney by
shooting him in the head with a shotgun while under the influence
of drugs and alcohol.
In his brief, Vickery states,
[o]n the date of the alleged offense the
appellant and his best friend [sic] the
victim in this case [sic] were drinking,
taken [sic] cocaine, and smoking marijuana.
The combination of the seroguel, prozac,
vistaril, cocaine, alcohol, and marijuana,
[sic] created, [sic] a mental instability
that triggered off an uncontrollable rage
that the appellant was not consciously aware
of at the time.
We are persuaded that Vickery’s description of his
mental state at the time of the killing, that he was suffering
from an uncontrollable rage, complies with the definition of an
extreme emotional disturbance as set forth in McClellan v.
Commonwealth.
Accordingly, a conviction for first-degree
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manslaughter under KRS 507.030(b) is supported by the appellate
record.
Finally, Vickery contends that he received ineffective
assistance of counsel in conjunction with his guilty plea.
Specifically, Vickery contends that trial counsel failed to
investigate the facts and circumstances surrounding the case.
Vickery contends that if trial counsel had investigated she would
have learned that Vickery was mentally incapable of committing
the crime, that the incident was an accident and not intentional,
and that he had a long history of mental illness.
In order to establish ineffective assistance of
counsel, a person must satisfy a two-part test showing that
counsel's performance was deficient and that 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);
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).
Where an appellant challenges a guilty plea based on ineffective
assistance of 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 pled guilty but
would have insisted on going to trial.
Hill v. Lockhart, 474
U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Sparks v.
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Commonwealth, Ky. App., 721 S.W.2d 726, 727-28 (1986).
The
burden of proof is upon the appellant to demonstrate that both
prongs of Strickland have been met.
App., 992 S.W.2d 860, 863 (1998).
Osborne v. Commonwealth, Ky.
The simple fact that counsel
advises or permits a defendant to plead "guilty" does not
constitute ineffective assistance of counsel.
Beecham v.
Commonwealth, Ky., 657 S.W.2d 234, 237 (1983).
We do not agree with Vickery’s claim that trial counsel
failed to investigate the case regarding his mental problems.
Based upon motions by trial counsel, Vickery was twice admitted
to KCPC for psychological evaluations and two psychiatric reports
were filed into the record.
Further, trial counsel filed notice
of her intent to introduce evidence at trial of Vickery’s mental
illness and/or insanity.
These facts demonstrate proper
investigation by trial counsel of Vickery’s mental problems.
Trial counsel’s advice to accept the guilty plea was
not deficient performance.
Vickery was charged with a Capital
Offense, carrying a possible sentence of 20 years to life or life
without parole for 25 years (KRS 532.030).1
Further, it is
uncontested that Vickery shot and killed Bill Delaney.
As a
result of the guilty plea, Vickery was able to plead out of the
original capital murder charge in exchange for a Class B felony
and the minimum ten-year sentence.
In view of the risks of
proceeding to trial, we are persuaded that Vickery, in obtaining
this deal, received effective assistance of counsel.
1
It does not appear that there were aggravating factors
associated with the killing which would have permitted the
Commonwealth to seek the death penalty.
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For the foregoing reasons, the judgment of the
Christian Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas Edward Vickery, Pro Se
West Liberty, Kentucky
Albert B. Chandler III
Attorney General
Frankfort, Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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