BENNY FRANCIS v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 25, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001274-MR
BENNY FRANCIS
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 98-CR-00064
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Benny Francis appeals from a January 17, 2002,
order of the Monroe Circuit Court denying his RCr 11.42 and CR
60.02 motion without a hearing.
We affirm.
On October 28, 1998, the Monroe County Grand Jury
returned an indictment charging Francis with murder in violation
of KRS 507.020, for allegedly causing the death of Cortez Copass
by shooting him with a firearm.
Honorable John Alexander of the
Department of Public Advocacy (PD) was appointed to represent
him.
Francis’s sister, Donna Carol Rayburn, was charged with
complicity to commit murder involving the death of Copass and
was also appointed a PD.
Each defendant entered a not guilty
plea and the matter was set for trial on April 19, 1999.
Prior
to the scheduled trial date, attorney Alexander withdrew from
representing Francis and Honorable Teresa Whitaker, the
supervising director of the regional PD office, appeared with
Francis at the April 19, 1999, hearing.
At that time, Francis
withdrew his not guilty plea and entered a guilty plea to the
charge of murder.
Originally facing the possibility of a death
sentence, the plea agreement permitted a sentence range from 20
years to life imprisonment.
The Commonwealth agreed to
recommend a twenty-two year sentence and stated its opposition
to probation.
Prior to accepting Francis’s guilty plea, a detailed
colloquy between Francis and the trial court took place, a copy
of the nine page questions and answers being made part of the
trial record.
Also included in the record are a signed motion
to enter his guilty plea, the Commonwealth’s plea officer signed
by Francis, a request for sentencing prior to completion of presentence investigation report and judgment and sentence on plea
of guilty.
Each document contains information which includes
Francis’s assurances to the trial court that he had entered his
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guilty plea freely, voluntarily and knowingly and that his
appointed counsel was present and had fully discussed all
relevant matters with Francis and believed Francis’s plea to be
made freely, knowingly, intelligently and voluntarily.
The
court accepted the guilty plea and followed the plea agreement
sentencing Francis to 22 years imprisonment.
On the same day,
Donna Carol Rayburn pled guilty to complicity to commit murder
and had her sentencing continued until May 26, 1999.
The record
indicates she was sentenced to five years in prison.
On August 31, 1999, Francis filed his first RCr 11.42
motion to vacate sentence and conviction.
In said motion,
Francis alleges that his rights to effective assistance of
counsel under the Sixth and Fourteenth Amendments of the United
States Constitution and Section Eleven of the Kentucky
Constitution, were violated and he was denied due process when
the Commonwealth allegedly failed to turn over evidence (a tape)
to his counsel prior to the trial date.
That motion was denied
by order entered by Monroe Circuit Judge Paul Barry Jones on
October 8, 1999.
In the order, Judge Jones reviewed Francis’s
allegations, the standard of review applicable to a RCr 11.42
motion and why his motion must fail.
In relevant part, the
order stated:
Francis’s main allegation is that he
was not provided with effective assistance
of counsel. The facts upon which he bases
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such allegations are set out as follows:
Francis states that his counsel Hon. John
Alexander withdrew as counsel due to a
conflict, and that Francis was not present
at a pre-trial conference on February 24,
1999. He further states that he was denied
effective assistance of counsel from the
public advocate who was thereafter appointed
to represent him, claiming that she
consulted with him only two days before his
trial. He also alleges that counsel “worked
against him to obtain a guilty plea for the
[C]ommonwealth.”
Francis’s claims of ineffective
assistance of counsel amount to nothing more
than innocuous facts and unsupported
allegations. The withdrawal of his first
attorney due to a conflict of interests was
necessary as required by the rules of
professional conduct, and Francis fails to
state how this action prejudiced him.
Further, his statement that the public
advocate only spent two hours in
consultation with him a few days before
trial is insufficient evidence on which to
amend his sentence. Francis failed to
demonstrate how much more time for
consultation he required or why, and whether
more time could have changed the outcome of
this case. Likewise, Francis’s claim that
his attorney “worked against him” is merely
an allegation unsupported by any specific
facts – no mention is made of how his
attorney worked against him, and there is no
evidence in the record of any wrongdoing by
either attorney.
...
In short, none of the above allegations
demonstrate that his counsel’s performance
was deficient in any way, nor do they show
that any such deficient performance
prejudiced his defense. Therefore, he has
failed to prove either prong of the test for
ineffective assistance of counsel, Humphrey
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v. Commonwealth, Ky., 962 S.W.2d 870, 873
(1998).
In any case, the record reviewed by
this Court refutes all allegations of any
efforts sufficient to invalidate Francis’s
conviction. RCr 11.42 requires the Court to
grant a hearing if a movant raises a
material issue of fact, however, “[i]f the
record refutes the claims of error, there is
no need for an evidentiary hearing.”
Bowling v. Commonwealth, Ky., 981 S.W.2d
545, 549 (1998). In this case, two
documents in the record indicate that Benny
Francis, who plead guilty, made his plea
willingly and voluntarily. The first
document, dated April 19, 1999, is a motion
by the defense to change Francis’s plea from
“not guilty” to “guilty.” This document,
which was signed by Benny Francis, states
that Francis believed that his attorney was
fully informed about his case, that he and
his attorney had fully discussed his charges
and possible defenses to them, and that his
guilty plea was “freely, knowingly,
intelligently and voluntarily made.” The
second document in the record is the Court’s
checklist indicating that Francis was
personally asked whether his plea was
voluntarily and intelligently made, and
whether he had any questions or problems
with his attorney’s representation. The
answers recorded on the checklist show that
Francis had no problems with his
representation. Thus, the record having
refuted Francis’s allegations, there is no
need for an evidentiary hearing.
Following the denial of his RCr 11.42 motion, Francis
filed a notice of appeal on October 21, 1999.
At that time, he
also requested appointment of appellate counsel and in forma
pauperis status.
At this point, the record becomes somewhat
confusing in that the next entry is a “Motion for discretionary
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review of a decision of the court of appeals” filed by Francis
on March 22, 2000.
In the motion, Francis claims that his “case
was decided by the Court of Appeals.
Neither the Movant nor the
Respondent have (sic) a Petition on Motion for reconsideration
pending in the Court of Appeals.”
He further stated that “The
Court of Appeals could not say that the record refuted the
Movant’s allegations. Nevertheless, the Court of Appeals
affirmed the trial court’s actions in denying the Movant’s RCr
11.42 without appointment of counsel or holding an evidentiary
hearing.”
The main problem with these statements is that
Francis apparently never perfected his appeal and thus, there
was never an appeal before this Court.
It further appears that
Francis did not file his motion for discretionary review with
the Kentucky Supreme Court but rather with the Monroe Circuit
Court.
Once this situation was realized, Francis simply refiled his previous RCr 11.42 (first filed on August 31, 1999 and
denied on October 8, 1999).
December 21, 2000.
This second RCr 11.42 was filed on
In January, 2001, the circuit court entered
an order permitting Francis to proceed in forma pauperis and
appointed the Department of Public Advocacy to represent him.
The appointed PD, Honorable Rebecca Stevens, then filed a
supplement to Francis’s RCr 11.42 motion on May 17, 2001.
Curiously in the body of the motion, Ms. Stevens alleges that
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Francis’s December 21, 2000, motion to vacate, set aside or
correct judgment of conviction was filed pursuant to RCr 11.42
and CR 60.02.
However, a review of the motion (as previously
indicated filed twice) clearly reveals the motion to be
specifically a RCr 11.42 motion with no mention of CR 60.02.
Thereafter, Francis filed his own supplement to his original
motion adding the issue that his attorney had a conflict of
interest in that his first appointed attorney, Mr. Alexander,
and his co-defendant’s attorney (who is unnamed in any of
Francis’s pleadings) “were partners in the same law firm and
each counsel knew that statements were made by the co-defendant
against [Francis].”
After reviewing the record, including the
two supplements to Francis’s RCr 11.42, Monroe Circuit Judge
James G. Weddle entered an order denying the second RCr 11.42
motion on January 14, 2002.
This appeal followed.
First, it must be noted that Francis appeals the
denial of his second RCr 11.42 motion.
As the Commonwealth
points out in its brief to this Court, Francis raised the issue
of his attorney’s alleged conflict of interest under RCr 8.30 in
his first RCr 11.42 motion.
That motion was denied, and
subsequently became final and binding when he failed to pursue
or perfect his appeal.
As our Supreme Court held in Gross v.
Commonwealth, Ky., 648 S.W.2d 853 (1983):
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RCr 11.42 provides a procedure for a
motion to vacate, set aside or correct
sentence for “a prisoner in custody under
sentence or a defendant on probation, parole
or conditional discharge.” It provides a
vehicle to attack an erroneous judgment for
reasons which are not accessible by direct
appeal. In subsection (3) it provides that
“the motion shall state all grounds for
holding the sentence invalid of which the
movant has knowledge. Final disposition of
the motion shall conclude all issues that
could reasonably have been presented in the
same proceeding.” (Emphasis in original).
...
The structure provided in Kentucky for
attacking the final judgment of a trial
court in a criminal case is not haphazard
and overlapping, but is organized and
complete. That structure is set out in the
rules related to direct appeals, in RCr
11.42, and thereafter in CR 60.02.
(Emphasis in original).
...
We hold that the proper procedure for a
defendant aggrieved by a judgment in a
criminal case is to directly appeal that
judgment, stating every ground of error
which it is reasonable to expect that he or
his counsel is aware of when the appeal is
taken.
Next, we hold that a defendant is
required to avail himself of RCr 11.42 while
in custody under sentence or on probation,
parole or conditional discharge, as to any
ground of which he is aware, or should be
aware, during the period when this remedy is
available to him. Final disposition of that
motion, or waiver of the opportunity to make
it, shall conclude all issues that
reasonably could have been presented in that
proceeding. The language of RCr 11.42
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forecloses the defendant from raising any
questions under CR 60.02 which are “issues
that could reasonably have been presented”
by RCr 11.42 proceedings.
Id. at 856, 857.
Likewise is Lycans v. Commonwealth, Ky., 511
S.W.2d 232 (1974), a case factually similar to the one before us
(a subsequent RCr 11.42 recitating the same grounds and then
adding additional grounds), the Court held:
We have consistently held that issues
which could have been presented in an
initial motion to vacate judgment cannot
thereafter be raised by subsequent motions.
(Citations omitted).
...
Upon further consideration we have
decided that when a prisoner fails to appeal
from an order overruling his motion to
vacate judgment or when his appeal is not
perfected or is dismissed, he should not be
permitted to file a subsequent motion to
vacate as suggested by the dicta in
Schroader [v. Thomas, Ky., 387 S.W.2d 312
(1965)]. If such a procedure were allowed
there would be no end to the successive
applications for post-conviction relief.
The reasons supporting and the need for
final disposition of litigation are
applicable to petitions for post-conviction
relief as to other areas of law. To the
extent that Schroader stands as authority
for the filing of subsequent motions to
vacate judgment when an appeal from an order
denying a motion to vacate is not perfected
or is dismissed, it is hereby overruled.
Id. at 232, 233.
Both of the above-cited cases fully comply
with RCr 11.42(3) which provides, as follows:
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(3) The motion shall state all grounds
for holding the sentence invalid of which
the movant has knowledge. Final disposition
of the motion shall conclude all issues that
could reasonably have been presented in the
same proceeding.
Having fully considered the record before us in light
of the applicable rules and case law, we believe Francis’s
appeal in this matter to be procedurally flawed.
His second
motion, which is the basis of this appeal, is prohibited by RCr
11.42, Gross, Lycans, and a multitude of similar cases which
provide that a defendant must state all grounds on which the
defendant’s collateral attack is based in the initial motion.
Francis is prohibited from attempting to re-litigate his alleged
claims if he did not include all reasons in his original RCr
11.42 motion or if he failed to properly appeal the original
denial.
In this case, Francis did both and his subsequent RCr
11.42 is hence prohibited.
While we do believe Francis’s appeal to be
procedurally flawed, had he properly appealed the original (or
had he filed a motion for a belated appeal as advised by the
PD’s office), the denial of his RCr 11.42 motion would still
have been affirmed.
In arguing that is attorney had a conflict
of interest based on RCr 8.30, he relied on the cases of Peyton
v. Commonwealth, Ky., 931 S.W.2d 451 (1996), and Trulock v.
Commonwealth, Ky.App., 620 S.W.2d 329 (1981).
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However, each
case was overruled by Kirkland v. Commonwealth, Ky., 53 S.W.3d
71 (2001).
In addressing RCr 8.30, the Kirkland Court held:
The bright line rule established in
Peyton, supra, “replaces the proper and
thoughtful exercise by the trial court of
discretion based on contemporaneous or onthe-spot supervision of the legal situation
with a kind of automatic robotic system
handed down from on high.” Id. at 456.
(Wintersheimer, J., dissenting). This case
illustrates the importance of analyzing
individual situations on a case-by-case
basis. A violation of RCr 8.30, or as in
this case, a questionable violation, which
does not result in any prejudice to the
defendant, should not mandate automatic
reversal. Such a result defies logic and
ignores the principles of judicial economy.
Consequently, under circumstances where
each defendant was represented not by a
single firm or single attorney, but by two
individually assigned public defenders, and
where no conflict or prejudice is claimed, a
nonprejudicial or harmless error analysis
can be applied. Thus, the failure of the
circuit judge to comply with RCr 8.30(1) was
harmless or nonprejudicial error. Such
failure is not presumptively prejudicial and
does not warrant automatic reversal. A
defendant must show a real conflict of
interest in order to obtain reversal.
Peyton v. Commonwealth, Ky., 931 S.W.2d 451
(1996), is overruled. Trulock v.
Commonwealth, Ky.App., 620 S.W.2d 329 (1981)
is also overruled.
Kirkland, Id. at 75.
For the foregoing reasons, the order of the Monroe
Circuit Court denying Francis’s RCr 11.42 motion is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT,PRO SE:
BRIEF FOR APPELLEE:
Benny Francis
LaGrange, KY
Albert B. Chandler, III
Attorney General
J. Gary Bale
Assistant Attorney General
Frankfort, KY
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