VALENTINE (CHARLES L.) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: DECEMBER 11, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-000288-MR CHARLES L. VALENTINE v. APPELLANT APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 05-CR-00404 COMMONWEALTH OF KENTUCKY APPELLEE OPINION VACATING AND REMANDING ** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE. HENRY, SENIOR JUDGE: Charles L. Valentine appeals from the denial of his motion for post-conviction relief filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Valentine claims that the Hardin Circuit Court erred when 1 Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. it denied his RCr 11.42 motion without an evidentiary hearing and when it failed to appoint counsel to represent him on his motion. We agree with Valentine that the trial court should have conducted an evidentiary hearing on his motion; therefore, we vacate and remand for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY On August 30, 2005, the Hardin County grand jury charged Valentine in an indictment with one count of first-degree rape. Valentine entered a not guilty plea and the case proceeded to trial on September 18, 2006. Following voir dire, Valentine’s attorney moved to suppress two statements that Valentine had made to police on the grounds that no waiver-of-rights documents were contained in the discovery provided to the defense. Valentine’s attorney also noted that he had not been provided with any videotaped statements in discovery. However, the Commonwealth’s Attorney indicated that he possessed a videotaped statement given by Valentine to police along with a videotaped statement given by the alleged rape victim. A suppression hearing was then conducted (with the motion being ultimately denied), and the defense was given the opportunity to watch Valentine’s videotaped statement to police before the jury was reconvened. In the statement, Valentine – who was intoxicated – claimed that he did not have sexual relations with the alleged victim and repeatedly requested DNA testing. After the jury was excused for the day, Valentine pled guilty to an amended charge of second-degree rape after reaching an agreement with the -2- Commonwealth. The trial court accepted Valentine’s plea after conducting an extensive plea colloquy and set Valentine’s sentencing for November 7, 2006. However, three days later, Valentine changed his mind and filed a letter asking the trial court to allow him to withdraw his guilty plea. Although he was still represented by counsel, Valentine’s request to withdraw his guilty plea was filed pro se. Valentine advised the court that he believed he had been unfairly prosecuted because he had not been timely provided with witness statements in discovery – including his own videotaped interview with police. Valentine also advised the court that he wished to be appointed a new attorney. His attorney at the time, Hon. Willie M. Neal, Jr., requested permission to withdraw as Valentine’s counsel. The trial court told Valentine that it would consider his motion to withdraw his guilty plea on his original sentencing date. Valentine was also granted permission to hire a new attorney if he could obtain one by this date. However, the court noted that it was not releasing Neal from his representation of Valentine at this time. On November 7, 2006, Valentine appeared before the trial court – without a new attorney – to argue that he should be allowed to withdraw his guilty plea. Neal was present and had not been released by the trial court; nonetheless, he remained silent during the proceeding except to state that Valentine’s motion to withdraw his guilty plea had been filed against his advice as counsel. Valentine argued that he had been pressured into entering into the guilty plea and that he had made a “bad decision” because he had not committed the crime in question. The -3- trial court then allowed Valentine to review the sex offender evaluation – including the victim impact statement – that had been created concerning his case. Valentine subsequently admitted that he “wasn’t pressured by anybody” to plead guilty and that he wanted to withdraw his plea because he felt that he had done the wrong thing. The trial court ultimately found no reason to allow Valentine to withdraw his guilty plea and denied his motion. In doing so, the court advised Valentine that he could appeal this decision. The court then found Valentine guilty of second-degree rape and sentenced him to seven years’ imprisonment per the terms of the plea agreement and the Commonwealth’s sentencing recommendation. The record reflects that Valentine did not appeal the trial court’s denial of his motion to withdraw his guilty plea. On December 18, 2007, Valentine filed a motion to vacate and set aside his conviction and sentence pursuant to RCr 11.42. He also filed a corresponding motion for the appointment of counsel and a motion for an evidentiary hearing. Valentine’s RCr 11.42 motion raised five issues: (1) that his plea of guilty was involuntary because he had received ineffective assistance of counsel; (2) that he was wrongfully convicted of a crime he did not commit; (3) that he had received ineffective assistance of counsel based on his trial counsel’s failure to investigate, interview witnesses, or consult with him about the case; (4) that he had received ineffective assistance of counsel based on his trial counsel’s failure to advise him of the possibility of receiving a directed verdict of acquittal or -4- a lesser-included offense instruction at trial; and (5) that he was prejudiced by the cumulative effect of these errors. The Commonwealth did not file a response to Valentine’s motions. The Hardin Circuit Court denied the motion in an order entered on January 17, 2008, without appointing Valentine counsel and without conducting a hearing. It is from the denial of this motion that Valentine now appeals. Additional facts will be presented as they apply. STANDARD OF REVIEW The test for determining whether an RCr 11.42 movant is entitled to an evidentiary hearing is set forth in Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008): Whether an RCr 11.42 movant is entitled to an evidentiary hearing is determined under a two-part test. First, the movant must show that the “alleged error is such that the movant is entitled to relief under the rule.” Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001). In other words, the court must assume that the factual allegations in the motion are true, then determine whether there “‘has been a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack.’” Id. (quoting Lay v. Commonwealth, 506 S.W.2d 507, 508 (Ky. 1974)). “If that answer is yes, then an evidentiary hearing on a defendant’s RCr 11.42 motion on that issue is only required when the motion raises ‘an issue of fact that cannot be determined on the face of the record.’” Id. (quoting Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993)). To do this, the court must “examin[e] whether the record refuted the allegations raised” (and not “whether the record supported the allegations, which is the incorrect test”). Id. -5- “The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them.” Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). However, “[c]onclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing[.]” Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). ANALYSIS I. On appeal, Valentine first argues that the trial court failed to properly exercise its discretion when it purportedly held that his RCr 11.42 motion was precluded by his failure to appeal the denial of his motion to withdraw his guilty plea. At the end of its order denying Valentine’s RCr 11.42 motion, the trial court noted the following: A major problem for Valentine on his motion is that his request to withdraw his plea was specifically addressed by the Court by way of an evidentiary hearing before sentence was imposed. It was incumbent upon Valentine that he file an appeal of the Court’s decision not to allow him to withdraw his plea. The Court specifically advised Valentine of his right to appeal. Valentine is not permitted to succeed on an 11.42 motion, even though the allegations pertain to ineffective assistance of counsel, when he was given an opportunity to offer such reasons for the withdrawal of the plea, and this could have been addressed on the direct appeal. Valentine cannot use RCr 11.42 as a vehicle to litigate those issues which could have been addressed on a direct appeal. -6- Valentine contends that the trial court effectively held that his failure to directly appeal the denial of his motion to withdraw his guilty plea was dispositive of the RCr 11.42 motion. The Commonwealth argues in response that Valentine incorrectly interprets the trial court’s decision and ignores the fact that the court based its denial of Valentine’s motion on other grounds. In the alternative, the Commonwealth contends that Valentine’s claims could have been brought on direct appeal and were therefore barred from being raised in an RCr 11.42 motion. Our courts have long held that “[i]t is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court.” Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972); see also Parrish v. Commonwealth, 272 S.W.3d 161, 167 (Ky. 2008). However, Valentine correctly points out that the resolution of an issue on direct appeal, or the failure to raise an issue on direct appeal that could have been resolved therein, does not necessarily serve as a procedural bar to a related claim of ineffective assistance of counsel. See Leonard, 279 S.W.3d at 158. This is because “[t]he ineffective-assistance claim is collateral to the direct error, as it is alleged against the trial attorney,” and is “one step removed from those that are properly raised, even as palpable error, on direct appeal.” Id. “While such an ineffective-assistance claim is certainly related to the direct error, it simply is not the same claim.” Id. -7- Thus, to the extent that the trial court’s order here found that Valentine’s RCr 11.42 claims of ineffective assistance of counsel were barred by his failure to directly appeal the denial of his motion to withdraw his guilty plea, it was in error. All of the claims raised by Valentine ultimately relate to alleged ineffective assistance of counsel by his defense attorney and were therefore not required to be brought on direct appeal. See Humphrey v. Commonwealth, 962 S.W.2d 870, 872-73 (Ky. 1998). With this said, however, we disagree with Valentine’s position that the trial court’s decision rested entirely on these grounds. The court’s order provided a number of other bases for its denial of Valentine’s motion, and it is to those remaining issues that we now turn. II. As noted above, Valentine’s RCr 11.42 motion raised three issues relating to ineffective assistance of counsel, a due process claim of actual innocence, and a claim of cumulative error. Valentine’s ineffective assistance of counsel claims can be boiled down to a contention that his guilty plea was not knowingly, intelligently, and voluntarily made because his defense counsel failed to adequately investigate his case and to prepare for trial and instead devoted all of his efforts to convincing Valentine to take the Commonwealth’s plea offer. Valentine specifically contends that his attorney was unfamiliar with the facts and law of the case, failed to interview witnesses who were present at the time the alleged rape was committed, failed to properly consult with him as to the possibility of receiving a directed verdict or of receiving a lesser-included-offense -8- instruction, and failed to exercise sound discretion regarding allegedly exculpatory DNA evidence. Valentine consequently asserts that defense counsel’s errors and lack of investigation effectively compromised the plea process so as to render his guilty plea involuntary and, therefore, invalid. In response, the Commonwealth contends that the record refutes Valentine’s claims of error. It relies heavily on the representations made by Valentine during his plea colloquy with the trial judge. There, Valentine indicated that he had not been threatened, forced, or coerced to enter his guilty plea. He also stated that he had told defense counsel all that he knew about the case and that he was satisfied with defense counsel’s investigation into the facts and law of the case and his representation as a whole. Valentine further acknowledged that he was pleading guilty because he had committed the crime in question and for no other reason. The Commonwealth also notes that Valentine signed AOC Form 491 – the standard “Motion to Enter Guilty Plea” form filed by a defendant when he wishes to do just that – which provided, in relevant part, as follows: I declare my plea of “GUILTY” is freely, knowingly, intelligently and voluntarily made; that I have been represented by counsel; that my attorney has fully explained my constitutional rights to me as well as the charges against me and any defenses to them; and that I understand the nature of this proceeding and all matters contained in this document. The Commonwealth argues that these representations support the trial court’s decision to deny Valentine’s RCr 11.42 motion without a hearing because they -9- conclusively refute Valentine’s allegations of error and allow the matter to be resolved on the face of the record. In denying Valentine’s RCr 11.42 motion, the trial court also relied heavily upon Valentine’s representations during the plea colloquy in reaching its decision. The court also noted, among other things, that Valentine was well aware of what DNA evidence established prior to entering his guilty plea and that his claim that he did not understand the option of lesser-included offenses was refuted by the fact that Valentine pled guilty to second-degree rape – a lesser-included offense of first-degree rape, the crime with which he was originally charged. In Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001), the Supreme Court of Kentucky summarized the showing that must be made with respect to a movant’s claim that his guilty plea should be invalidated because of ineffective assistance of counsel: A showing that counsel’s assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel’s performance fell outside the wide range of professionally competent assistance; and (2) 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 pleaded guilty, but would have insisted on going to trial. Id. at 486-87, quoting Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1987). “[T]he trial court must evaluate whether errors by trial counsel significantly influenced the defendant’s decision to plead guilty in a manner which -10- gives the trial court reason to doubt the voluntariness and validity of the plea.” Id. at 487. Accordingly, our analysis must begin with the question of whether the trial court should have conducted an evidentiary hearing to determine the voluntariness of Valentine’s guilty plea. “This is because the effect of a valid plea of guilty is to waive all defenses other than that the indictment charges no offense.” Commonwealth v. Elza, 284 S.W.3d 118, 121 (Ky. 2009); see also Quarles v. Commonwealth, 456 S.W.2d 693, 694 (Ky. 1970). “[T]he voluntariness of a guilty plea ‘can be determined only by considering all of the relevant circumstances surrounding it.’” Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002), quoting Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). The Commonwealth’s position that Valentine’s arguments in support of his RCr 11.42 motion contradict the affirmations that he made during his plea colloquy with the trial judge and in his “Motion to Enter Guilty Plea” certainly has merit. Representations made by a defendant during such a colloquy “constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); see also Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006). With this said, however, “[t]he validity of a guilty plea must be determined not from specific key words uttered at the time the plea was taken, but from considering the totality of circumstances -11- surrounding the plea.” Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990). Thus, while the statements made by Valentine in his plea colloquy and in his “Motion to Enter Guilty Plea” are strong indications that his guilty plea was voluntary in nature, they are not necessarily conclusive on this issue. Valentine’s arguments all relate to his relationship with defense counsel, the substance of their conversations relating to this case, and what information was made available to Valentine when he was considering whether to plead guilty. “Generally, an evaluation of the circumstances supporting or refuting claims of coercion and ineffective assistance of counsel requires an inquiry into what transpired between attorney and client that led to the entry of the plea, i.e., an evidentiary hearing.” Rodriguez, 87 S.W.3d at 11. Accordingly, we believe that an evidentiary hearing should have been conducted in this case. While the affirmations made by Valentine in pleading guilty carry strong weight in any ineffective-assistance-of-counsel determination, a fuller understanding of what transpired between Valentine and his attorney is required before his claim can be dismissed. Therefore, this case must be remanded so that a hearing can be conducted. Because of our decision to vacate and remand for an evidentiary hearing, Valentine’s contention that the trial court erred in denying his motion to appoint counsel need not be addressed in detail. The rule set forth in Fraser v. Commonwealth, supra, is still applicable: “If an evidentiary hearing is required, -12- counsel must be appointed to represent the movant if he/she is indigent and specifically requests such appointment in writing.” Fraser, 59 S.W.3d at 453. CONCLUSION For the foregoing reasons, the judgment of the Hardin Circuit Court is vacated and this matter remanded for further proceedings consistent with this opinion. LAMBERT, JUDGE, CONCURS. TAYLOR, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Thomas M. Ransdell Department of Public Advocacy Frankfort, Kentucky Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky -13-

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