MARVIN DAY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002337-MR
MARVIN DAY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 97-CI-001130
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
BARBER, JUDGE: Marvin Day (Day), pro se, appeals the order of the
Jefferson Circuit Court denying his RCr 11.42 motion for relief
from a guilty plea to first-degree murder and two (2) counts of
first-degree wanton endangerment.
Having reviewed the record and
applicable law, we affirm.
During a backyard party on May 4, 1997, Day
intentionally fired one gunshot into the head of Daryl Hayes
followed by his firing four (4) random shots into an alarmed and
scrambling crowd.
Due to the outdoor nature of the party,
numerous attendants witnessed the event.
On May 12, 1997, Day
was indicted on the above-described offenses.
Upon Day’s motion, the court ordered that a psychiatric
evaluation be conducted in order to ascertain whether he was
competent to stand trial.
The clinical results of that
examination and report of the evaluators were produced on August
28, 1997.
On September 30, 1997, Day pled guilty pursuant to a
plea agreement with the Commonwealth.
Having waived a formal
sentencing hearing, the court sentenced Day to 30 years on the
murder charge, and five years for each wanton endangerment charge
to run, concurrently for a total term of 30 years.
On September 14, 2000, Day, pro se, filed a motion
pursuant to RCr 11.42 seeking post-conviction relief from his
sentence.
Day alleged: (1) the trial court erred in accepting
his guilty plea absent a competency hearing, (2) his trial
counsel’s failure to object to same constituted ineffective
assistance and (3) the court erred in accepting guilty pleas to
wanton endangerment when there was insufficient proof for a
conviction on said charges substantially prejudicing Day.
Day further tendered motions requesting the appointment of
counsel and an evidentiary hearing.
the above-described motions.
The trial court denied all
This appeal ensued.
Before this Court, Day contends that: (1) the court
erred in denying his motion for an appointment of counsel, (2) he
suffered prejudicial error as a result of the trial court
refusing his motion to conduct a competency hearing, (3) he
received ineffective assistance of counsel in that trial counsel
waived same and (4) there was insufficient evidence for
conviction on the charges of wanton endangerment; therefore, the
court erred in accepting pleas of guilty on those charges.
We
disagree and discuss the reasons therefor in logical sequence.
-2-
With regard to Day’s contention that he was entitled to
a competency hearing, the record reflects that trial counsel
requested such a hearing be conducted on September 4, 1997.
However, at the time Day entered his guilty pleas, trial counsel
stated, for the record, that competency was not an issue and
waived the right to a hearing.
KRS 504.100(1) requires the court to appoint a
psychologist or psychiatrist “to examine, treat and report on the
defendant’s mental condition” at any time “the court has
reasonable grounds to believe that the defendant is incompetent
to stand trial.”
KRS 504.100(3) provides that following the
filing of such a report, “the court shall hold a hearing to
determine whether the defendant is competent to stand trial.”
Unquestionably, subsection (3) is mandatory.
On appeal, however,
the standard of review is
“‘[w]hether a reasonable judge, situated as was the trial court
judge whose failure to conduct an evidentiary hearing is being
reviewed, should have experienced doubt with respect to
competency to stand trial.’”
Mills v. Commonwealth, Ky., 996
S.W.2d 473, 486 (1999) (quoting Williams v. Bordenkircher, 696
F.2d 464, 476 (6th Cir. 1983)).
Day’s psychiatric evaluation
specifically concluded that he was competent to stand trial as he
was able to understand the proceedings, charges against him and
assist in his own defense.
Moreover, the record reflects the
trial judge did not order the psychiatric examination on the
basis that he had not observed or otherwise perceived reasonable
grounds upon which to question Day’s competency to stand trial.
-3-
Rather, the evaluation was ordered in response to Day’s motion
requesting same.
We conclude that Day has failed to demonstrate
that there was any factual basis which would have caused the
trial court to encounter reasonable doubt as to his competence to
stand trial.
Hence, permitting him to waive the mandatory
hearing of KRS 504.100(3) operated as harmless error.
Mills, 996
S.W.2d at 486.
Day further posits that there was insufficient evidence
for a conviction on the wanton endangerment charges.
However, we
note that this issue is not proper for a RCr 11.42 postconviction proceeding.
853, 856 (1983).
Gross v. Commonwealth, Ky., 648 S.W.2d
Even if his claim were viable, by virtue of
having entered a guilty plea he is precluded from raising same.
King v. Commonwealth, Ky., 408 S.W.2d 622 (1966).
Nonetheless,
the record contains the statements of numerous eye-witnesses who
reported that Day fired approximately four (4) random shots into
the crowd after shooting Daryl Hayes in the head.
Furthermore,
the trial court adequately reviewed the conduct giving rise to
these charges with Day prior to accepting his guilty plea.
As a final matter, Day claims that in accordance with
KRS 31.110 and RCr 11.42 he was entitled to the appointment of
counsel in an effort to have his conviction vacated.
The
Criminal Rule provides for appointed counsel only “[i]f the
answer raises a material issue of fact that cannot be determined
on the face of the record . . . .”
RCr 11.42(5).
The record
discloses that the trial court reviewed all matters raised in
Day’s RCr 11.42 motion during the course of conducting the
-4-
requisite colloquy prior to accepting his guilty plea.
As such,
the test of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969) was satisfied.
An evidentiary hearing was
completely unnecessary for the resolution of Day’s contentions.
Under circumstances such as these, failure of the trial court to
appoint counsel as directed by KRS 31.110 was harmless error.
Commonwealth v. Stamps, Ky., 672 S.W.2d 336 (1984).
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marvin Day, pro se
West Liberty, KY
AB Chandler III
Attorney General
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, KY
-5-
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