BROCKMAN (BOBBY DAVID) VS. COMMONWEALTH OF KENTUCKY

 Annotate this Case
Download PDF
RENDERED: DECEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED OPINION OF MAY 8, 2009, WITHDRAWN Commonwealth of Kentucky Court of Appeals NO. 2008-CA-000238-MR BOBBY DAVID BROCKMAN v. APPELLANT APPEAL FROM RUSSELL CIRCUIT COURT HONORABLE VERNON MINIARD, JR., JUDGE ACTION NO. 04-CR-00109 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, THOMPSON, AND WINE, JUDGES. WINE, JUDGE: Bobby David Brockman (“Brockman”) appeals pro se from the December 17, 2007 order1 of the Russell Circuit Court denying his motion for post judgment relief filed subject to Kentucky Rules of Criminal Procedure (“RCr”) 1 Although Brockman failed to include a copy of the judgment in his appendix as required by Kentucky Rules of Civil Procedure (“CR”) 76.12(4)(c)(vii), we will not strike the brief as permitted by CR 76.12(8), granting some leniency because he has filed this appeal pro se. 11.42. Having reviewed the record and finding no error, we affirm for the reasons set forth herein. Factual and Procedural Background In late July 2004, Brockman was accused by his daughter of sexually abusing two of her daughters, both less than twelve years of age. Allegations of sodomy and sexual abuse as to the older grandchild encompassed a period from December 1999, to July 2004. The younger grandchild, age three, was allegedly sodomized and sexually abused between January and July of 2004. Brockman was arrested on November 4, 2004. The arrest citation stated “During interview with Mr. Brockman, he confessed to engaging in deviate sexual contact with his 2 granddaughters, 1 the age of 13 and 1 the age of 3. Mr. Brockman admitted to sexually abusing both granddaughters as well.” He appeared before the district court on November 8, 2004 and his request for the appointment of counsel was granted.2 Brockman was charged with twenty counts of first-degree sodomy, punishable by twenty years to life and twenty counts of first-degree sexual abuse, punishable by one to five years, alleging sexual contact with the older grandchild. As to the three year old, he was charged with three counts each of first-degree 2 The record from circuit court contains pleadings from the Russell District Court including an affidavit of indigence and request for counsel form and an order appointing the public defender entered on November 9, 2004. -2- sodomy and first-degree sexual abuse.3 These allegations were presented to the Russell County grand jury in December 2004. Brockman was arraigned on December 28, 2004. Although counsel was appointed for Brockman’s arraignment, his request for appointment of counsel was denied as the trial court believed he had adequate resources to hire counsel. The court learned that Brockman had transferred property owned jointly by himself and his wife solely into his wife’s name between the time of his initial arrest and his indictment on these charges.4 The matter was passed to January 19, 2005, for a pretrial conference. At that conference, the court appointed counsel to represent Brockman. On February 14, 2005, Brockman’s counsel requested the Commonwealth provide discovery pursuant to RCr 7.24 and that all evidence be preserved. On February 21, 2005, the Commonwealth provided discovery including taped statements by Brockman, Brockman’s daugther, and both grandchildren. On May 24, 2005, Brockman pled guilty to all forty-three counts of first-degree sodomy and forty-three counts of first-degree sexual abuse. The written plea sheet, signed by Brockman, clearly states the Commonwealth recommended a twenty-five year sentence and objected to probation, shock 3 There was an additional count of first-degree sexual abuse as to the older grandchild; however, it was dismissed as part of the plea negotiations between Brockman and the Commonwealth’s attorney. 4 While the first affidavit of indigence and request for counsel form dated November 9, 2004, indicated Brockman owned property valued at $15,000.00, the second form dated December 13, 2004, stated that he owned no property. -3- probation or any other form of early release. During the plea colloquy, the court asked Brockman if he understood the Commonwealth’s recommendations. The court ordered a presentence investigation report as well as a presentence sexual offender evaluation and sentencing was passed to August 24, 2005. On August 24, 2005, Brockman was given the opportunity to review the presentence investigation (“PSI”) reports. Brockman’s counsel advised the court there were no corrections to either report. In addition to the standard PSI report was a “Comprehensive Sex Offender Presentence Evaluation, Summary, Conclusions and Recommendations” which included a recitation of information provided by Brockman concerning the sexual abuse allegations involving his two granddaughters. A copy of that report was not filed under seal with the trial court in accordance with KRS 532.045(7). Our Court has now sealed this record. In accordance with the Commonwealth’s recommendations, the court sentenced Brockman to twenty-five years on each count of first-degree sodomy and five years on each count of first-degree sexual abuse and ran the sentences concurrently for a total of twenty-five years. The court further ordered the sentences to be served and the appropriate amount of jail time credit to be awarded. The amount of jail time credit was later amended, increasing the original award of 293 days to 510 days credit. Subsequently, in December 2007, Brockman filed a motion pursuant to RCr 11.42 to vacate the judgment and sentence, for counsel to be appointed and for an evidentiary hearing. On December 17, 2007, the court denied the motions -4- for appointment of counsel and for an evidentiary hearing. In a detailed order denying the motion to vacate or set aside the judgment and sentence, the court addressed each substantive ground raised by Brockman. Brockman filed a motion pursuant to CR 59.05 to amend, alter, or vacate the December 17, 2007 order as well as a motion to recuse the trial judge, both of which were denied on January 4, 2008. Brockman then filed this appeal, raising the same grounds as those before the trial judge, alleging ineffective assistance of counsel when counsel failed to request a medical examination of the victims; misadvised him of the penalty for the crimes with which he was charged; and failed to challenge perjured testimony by the trooper who testified before the grand jury. Brockman also claims he was denied due process and equal protection under the law (1) when the court failed to appoint counsel for all pre-indictment proceedings; (2) because the plea sheets were not signed by the prosecuting victims; (3) because there was lack of medical evidence to substantiate the allegations; and (4) due to cumulative errors. Brockman also alleges the trial court erred when it failed to conduct an evidentiary hearing. Standard of Review Brockman argues that it was error for the trial court to deny him an evidentiary hearing on his RCr 11.42 motion. A defendant is entitled to an evidentiary hearing on an RCr 11.42 motion only if the issues raised in the motion reasonably require such a hearing for determination. Conversely, a hearing is not -5- required if the motion on its face does not allege facts that would entitle the defendant to a new trial even if true or if the allegations are refuted by the record itself. Maggard v. Commonwealth, 394 S.W.2d 893, 894 (Ky. 1965). Because the record clearly refutes every allegation made by Brockman, the trial court properly denied his motion for an evidentiary hearing. Analysis We first address Brockman’s allegation that he was denied effective assistance of counsel. The standards which measure ineffective assistance of counsel have been set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which Kentucky adopted in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Strickland requires the court to first find that there was an error in counsel's performance. If the court so finds, it must then find that the error was prejudicial to the defendant, meaning that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. The trial court must then determine whether counsel's deficient performance rendered the result of the trial unreliable or the proceedings fundamentally unfair so as to deprive a defendant of a substantive or procedural due process right. Because he pled guilty, Brockman is required to show “. . . that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). -6- Brockman alleges trial counsel was ineffective by coercing him to accept a plea of guilty. However, during the plea colloquy, Brockman assured the court, both verbally and in writing, that he had not been coerced. He also alleges that counsel was ineffective by failing to request medical examinations of the two minors. Brockman is accused of orally sodomizing the children, masturbating them or having them masturbate him and allowing one child to touch his penis with her mouth. He denied any force was involved. Brockman admitted these allegations during his confession to police. The confession to police could have been introduced at trial. Further, Brockman offers no evidence as to what type of evidence might be revealed by such an examination. Brockman also complains trial counsel failed to fully investigate the allegations prior to a plea of guilty. However, in open court Brockman indicated that he was satisfied with the advice of counsel. Further, while he complains that his daughter and the social worker were both biased against him, Brockman cites to no evidence of misstatements made by either. Rather, he claimed that his daughter had made false allegations ten years earlier and the social worker, an ex in-law, had an axe to grind. While he claims the victims’ statements made to troopers after the allegations came to light do not match the statements made by the trooper to the Russell County grand jury, he fails to detail the discrepancies. RCr 11.42 requires that a motion state specifically the grounds upon which a sentence is challenged and the facts upon which a movant relies to support those grounds. Further, RCr 11.42 provides that if a movant fails to do so, the motion shall be summarily dismissed. See also -7- Lucas v. Commonwealth, 465 S.W.2d 267, 268 (Ky. 1971). Considering the claims of ineffective assistance of counsel are based on conjecture and innuendo, we cannot find the trial court erred by denying Brockman’s motion on these grounds. Brockman further alleges he was denied effective assistance of counsel because he was misadvised as to the punishment he faced. Brockman claims that subsequent to the plea he entered on May 24, 2004, an unknown probation officer advised him he would only receive a ten year sentence which would be probated for a period of five years. Brockman equates this statement, admittedly not made by his counsel, as a promise to get him to plead guilty. This argument fails on two grounds. The statement, if made at all, was not made by trial counsel, so it does not reflect on the effectiveness of counsel. Further, because it was allegedly made after the plea, it could not serve as an inducement to plead guilty. During the plea colloquy Brockman affirmatively responded to the court’s question when asked if he understood the offer as to the penalty of twentyfive years and that the Commonwealth objected to probation or shock probation. Again we cannot find the trial court erred when it found trial counsel was not deficient in advising Brockman of the potential punishment he faced. Brockman claims counsel never explained to him that there needed to be medical evidence to substantiate the allegations against him. He claims that had he known of such a requirement he would not have pled guilty. Brockman cites neither case law nor a statute to support this contention. Nor are we aware of any. -8- To the contrary, corroboration in a child sexual abuse case is required only if the unsupported testimony of the victim is “. . . contradictory, or incredible, or inherently improbable.” Garrett v. Commonwealth 48 S.W.3d 6, 10 (Ky. 2001), citing Robinson v. Commonwealth, 459 S.W.2d 147, 150 (Ky. 1970). Finally, Brockman complains that the trooper who testified before the grand jury was not the original officer assigned to investigate the complaint; that the officer perjured himself; that the allegations were not substantiated by medical proof; and that the state police did not fully investigate allegations of false claims made by Brockman’s daughter ten years earlier. Regardless of Brockman’s current complaints, the record is undisputed that Brockman unconditionally pled guilty. The general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense. Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994), citing Bush v. Commonwealth, 702 S.W.2d 46, 48 (Ky. 1986). In that Brockman’s current complaints are defenses, they are now waived. In addition to the allegations of ineffective assistance of counsel, Brockman raises several issues which pertain to alleged errors by the trial court. Brockman claims he was denied counsel for ninety days after his arrest. Again the record clearly refutes these allegations. On November 9, 2004 while still before the district court, the public defender assigned to the Somerset office was appointed to represent Brockman and a fee of $100.00 was assessed. On November 12, 2004, Brockman completed a form styled “Financial Statement, -9- Affidavit of Indigence and Request for Counsel”. The district court appointed the Honorable Glenn McClister (“McClister”) to represent Brockman. Only after the return of the indictment and at his arraignment on December 28, 2004, did the circuit judge deny Brockman’s request for the appointment of counsel. The request was denied in part because the trial court believed Brockman had improperly transferred jointly held property to his wife. However, at a subsequent pretrial on January 19, 2005, counsel was appointed and the court ultimately set a recoupment fee of $1,200.00. No hearing was held in the interim and when again appointed, McClister filed appropriate motions for discovery and to preserve any evidence collected. There is absolutely no basis for Brockman’s claim that he was prejudiced by being without counsel for a period of ninety days following his arrest. Brockman’s next claim is that the prosecuting witnesses did not sign the plea sheets. He claims that, had they been forced to come to court, they may have indicated an unwillingness to prosecute him. This convoluted argument has no basis in Kentucky or Federal case law, nor does Brockman cite any Kentucky statute or rule of court which mandates a prosecuting witness sign a plea sheet. The Commonwealth's attorney does have an obligation to consult with the victim on the disposition of the case, including “a negotiated plea.” Kentucky Revised Statute (“KRS”) 421.500(6). See also Hoskins v. Maricle, 150 S.W.3d 1, 26 (Ky. 2004). Brockman offers no evidence that the Commonwealth’s attorney did not -10- receive approval from the prosecuting witnesses’ mother prior to offering a possible plea agreement to him. Finally, as we can find no error in any of the trial court’s decisions to deny the motion for post judgment relief pursuant to RCr 11.42, there is no basis for Brockman’s claim that the cumulative effect of all the errors resulted in a denial of effective assistance of counsel. For the foregoing reasons, we affirm the order of the Russell Circuit Court denying Brockman's motion for RCr 11.42 relief. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Bobby David Brockman, pro se Burgin, Kentucky Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky -11-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.