MYRNA L. THARP v. COMMONWEALTH OF KENTUCKY
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RENDERED: March 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: MAY 6, 2005; 2:00 p.m.
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002372-MR
MYRNA L. THARP
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 97-CR-00023
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; BARBER, JUDGE; MILLER, SENIOR
COMBS, CHIEF JUDGE:
Myrna Tharp appeals from an order of the
McCracken Circuit Court that denied her motion for relief filed
pursuant to RCr2 11.42, which included a motion for an
evidentiary hearing and for appointment of counsel.
1
Myrna
Senior Judge John D. Miller, sitting as Special Judge by Assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Kentucky Rules of Criminal Procedure.
argues that the trial court erred in summarily denying her
motion.
She contends that she raised numerous allegations
relating to her trial counsel’s deficient performance in
defending her on charges of murder and conspiracy to murder.
She claims that those allegations are not refuted on the face of
the record.
After our review of the proceedings, we agree that
the trial court failed to make the requisite finding as to
whether the record on its face negates her allegations.
Therefore, we vacate the order of October 10, 2002, and remand
for additional proceedings pursuant to Fraser v. Commonwealth,
59 S.W.3d 448 (Ky. 2001).
In 1997, Myrna and her husband, Kenneth Tharp
(Kenneth), were indicted on charges of wanton murder and firstdegree criminal abuse in the death of her infant daughter,
Elaina Curtis.
granted.
Kenneth’s motion for separate trials was
Myrna was the first to be tried.
Following her trial
in November 1997, she was convicted of the crimes of complicity
to commit murder and of second-degree criminal abuse.
She was
sentenced to serve twenty-seven years in prison.
Myrna’s conviction was affirmed by the Supreme Court
of Kentucky on direct appeal.
356 (Ky. 2000).
Tharp v. Commonwealth, 40 S.W.3d
In its opinion, the Court acknowledged that
there was “no evidence” that Myrna had killed her child or that
she “aided, abetted, encouraged, or otherwise actively
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participated in the conduct which resulted in [the child’s]
death.”
Id. at 360.
Her liability was predicated on the breach
of her duty to protect her child from Kenneth’s assaults under
KRS 502.020(2)(c).
Id.
She contends that her trial counsel
wholly failed to offer an adequate defense on this critical
issue.
On September 26, 2002, Myrna, pro se, filed a motion
pursuant to RCr 11.42 to vacate or to set aside her conviction
based on ineffective assistance of counsel.
Her motion
contained numerous complaints with respect to the representation
of her trial counsel, Donald Muir, now deceased.
Specifically,
she alleged that trial counsel had compromised her
constitutional rights to effective counsel as follows:
1.
trial counsel was under the influence
of alcohol during most of her trial;
2.
trial counsel did not seek a change of
venue or individually question
prospective jurors about their exposure
to pretrial publicity;
3.
trial counsel failed to request a
hearing pursuant to Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), to determine the validity of
certain expert opinions regarding
bruising and pattern injuries;
4.
trial counsel failed to preserve for
review her claim that the trial court
erred in excluding evidence;
5.
trial counsel failed to object to the
trial court’s instructions for
complicity to commit homicide;
-3-
6.
trial counsel failed to introduce the
child’s medical records showing that
the child had no bruises or broken
bones two days prior to her death in
order to counter the Commonwealth’s
theory that the child had been beaten
over a period of several days;
7.
trial counsel failed to investigate
Kenneth’s background and generally
failed to present evidence of his
repeated abuse of Tharp; and
8.
trial counsel failed to obtain an
expert witness to present a viable
defense predicated on her status as a
battered spouse.
(Summary of claims
from appellant’s brief.)
On October 9, 2002, the Commonwealth filed its
response to the motion.
It argued that since the jury
instructions had been determined proper by the Supreme Court of
Kentucky on direct appeal, any relief under RCr 11.42 was
precluded.
It also argued that the motion should be denied
based on the death of Attorney Muir, a fact which would prevent
Myrna from meeting her burden of proof.
On October 11, 2002, the trial court without
explanation denied Myrna’s motion for an evidentiary hearing and
for the appointment of counsel.
In denying the motion to vacate
Myrna’s sentence, the court summarily stated that it was “clear
from the Petition and Response that [Tharp] does not merit
relief under RCr 11.42.”
This appeal followed.
-4-
The trial court did not utilize the procedures that
are required in considering motions for relief pursuant to RCr
11.42.
In Fraser v. Commonwealth, supra, the Supreme Court of
Kentucky reiterated and summarized those procedures, holding
that a trial court is required to:
determine whether the allegations in the
motion can be resolved on the face of the
record, in which event an evidentiary
hearing is not required. A hearing is
required if there is a material issue of
fact that cannot be conclusively resolved,
i.e., conclusively proved or disproved, by
an examination of the record. [Citations
omitted.] The trial judge may not simply
disbelieve factual allegations in the
absence of evidence in the record refuting
them. (Emphasis added).
Id. at 452-453.
In this case, the trial court skipped the critical,
threshold inquiry:
whether Tharp’s allegations were refuted on
the face of the record.
Rather than addressing this issue, it
proceeded immediately to the merits of her claims that counsel
had failed to function as guaranteed by the Sixth Amendment of
the United States Constitution.
As Fraser dictates, however,
the essential question with respect to appointment of counsel
and the propriety of an evidentiary hearing is whether the
record conclusively disproves those allegations.
Id.
Where the
allegations are not clearly refuted by the record, the movant is
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legally entitled to an opportunity to create a record with the
assistance of appointed counsel.
The Commonwealth has submitted a comprehensive brief
countering the numerous allegations of ineffective assistance
raised by Myrna.
It argues that the judgment should be affirmed
on the basis that her claims either are refuted by the record or
cannot be substantiated due to the death of Attorney Muir.
However, we believe that Fraser requires the trial court to
determine whether the allegations can be resolved on the face of
the record.
That finding has not been made in the manner
directed by Fraser.
We cannot substitute our judgment for that
of the trial court in determining whether Myrna’s allegations
raise questions of fact necessitating a hearing.
The propriety
of denying a hearing is premised on the trial court’s finding
that the record refutes the defendant’s allegation.
finding was never made in this case.
That
While trial counsel’s
death may indeed create an impediment to her meeting her burden
of proof, Fraser mandates that Myrna receive at least the
opportunity to undertake the task of meeting that burden.
Accordingly, the judgment of the McCracken Circuit
Court is vacated, and this matter is remanded for further
proceedings consistent with this opinion and with the procedures
outlined in Fraser, supra.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael J. Bufkin
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
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