JETT (KEVIN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 30, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000769-MR
KEVIN JETT1
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 05-CR-001759
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES.
DIXON, JUDGE: Kevin Jett, pro se, appeals from a Jefferson Circuit Court order
denying his motion for post-conviction relief pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42. We affirm.
In June 2005, a Jefferson County grand jury indicted Jett on charges
of capital murder, burglary, robbery, and tampering with physical evidence. On
1
There is a discrepancy as to the correct spelling of the Appellant's name. For convenience, the
Court has elected to spell it the way the Appellant signed his brief.
June 27, 2005, the court granted Jett’s motion for an ex parte order providing funds
for Jett to be evaluated by a forensic psychologist. Following Jett’s evaluation, the
psychologist tendered a report finding Jett to have below average intelligence in
the range of mental retardation. In light of the psychological report, Jett moved to
exclude the death penalty from the potential range of punishment. On September
30, 2005, the court held a hearing on Jett’s motion, but postponed ruling on the
motion until the Commonwealth had an opportunity to respond. Shortly thereafter,
the Commonwealth offered Jett a thirty-five year sentence in exchange for
pleading guilty to the indicted offenses. On November 9, 2005, Jett appeared in
Jefferson Circuit Court and pleaded guilty pursuant to the Commonwealth’s offer,
and the court sentenced him to thirty-five years’ imprisonment.
In February 2008, Jett filed a pro se motion pursuant to RCr 11.42
seeking to vacate his guilty plea and sentence. Jett alleged the circuit court erred
by failing to hold a hearing to determine whether he was competent to stand trial.
On February 20, 2008, the court rendered an order denying Jett’s motion without
an evidentiary hearing. This appeal followed.
Jett contends 1) he had a statutory right to receive a competency
hearing; 2) he had a potential defense of mental illness; 3) the court erred by
accepting the plea without holding a competency hearing;2 and 4) he was entitled
to an evidentiary hearing on his RCr 11.42 motion.
2
Although this is the third argument in Jett’s brief, we will address it within the analysis of Jett’s
first argument.
-2-
Jett cites Kentucky Revised Statutes (KRS) 504.100, which addresses
court-appointed psychological evaluations for determining competency. The
statute states in relevant part:
(1) If upon arraignment, or during any stage of the
proceedings, the court has reasonable grounds to believe
the defendant is incompetent to stand trial, the court shall
appoint at least one (1) psychologist or psychiatrist to
examine, treat and report on the defendant's mental
condition.
***
(3) After the filing of a report (or reports), the court shall
hold a hearing to determine whether or not the defendant
is competent to stand trial.
Jett asserts that the court was made aware of his alleged “mental
problems” and was obligated to hold a competency hearing. We disagree.
Although the trial court appointed a psychologist to assist in the
“effective representation” of Jett, at no time was Jett’s competency to stand trial
placed before the court. The psychological evaluation focused on Jett’s IQ and
social functioning. At the hearing on the motion to exclude the death penalty,
defense counsel plainly advised the court that they were not raising the issue of
Jett’s competence.
We note that the record on appeal does not include the videotape of
Jett’s guilty plea and sentencing. Jett contends the court clerk informed him the
tape “could not be found.” However, the record does not reveal that the tape was
lost; rather, it appears Jett did not properly request that the video be included in the
record. It is well settled, “[w]hen the record is incomplete, we assume the omitted
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record supports the trial court's decision.” Graves v. Commonwealth, 283 S.W.3d
252, 255 (Ky. App. 2009) (citation omitted). Here, the trial court rendered a
detailed opinion denying RCr 11.42 relief. The order states, in pertinent part:
[I]t is clear from a review of the videotaped
proceedings in this matter that the Defendant’s
competency was explored by the Court, counsel for the
defense and the Defendant himself. The hearing, which
was held on November 9, 2005, during which the
Defendant’s plea of guilty was accepted by the Court,
was lengthy and detailed. Defense counsel indicated that
prior to the hearing he had an exhaustive discussion with
the Defendant, and believed the Defendant had the
capacity to make a knowing and voluntary plea. The
Court asked the Defendant on the record about the
evaluation of his IQ. Defense counsel indicated that the
Defendant had “deficits” and “problems in formative
behavior” during his youth. However, counsel reiterated
the Defendant had the capacity to plead knowingly and
voluntarily. Furthermore, defense counsel indicated his
belief that the Defendant understood the Court
proceedings and could participate rationally in his own
defense. Defense counsel indicated Defendant’s
competence in that regard was clear because the
Defendant asked counsel just before the hearing on the
guilty plea if he could “waive final sentencing.”
In addition to counsel’s inquiry and discussion, the
Court conducted a thorough colloquy with the Defendant
regarding his plea. The Defendant indicated that he was
satisfied with his attorney’s advice and that he had had
sufficient time to discuss the case, his rights and any
defenses with counsel. The Court inquired into the
Defendant’s prior mental illness, and the Defendant
stated that those issues were resolved a “long, long time
ago.” The Defendant testified that he was currently
prescribed medication and that helped him and made him
think clearly. The Defendant repeatedly stated that he
understood everything with regard to his case. The
Defendant testified that he had been convicted of several
felonies in the past, as well as numerous misdemeanors,
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and received sentences from Courts for those crimes. He
testified that he had never been found incompetent by a
Court or incapable of handling his own affairs. He said
that he knew what he was doing, and he testified that he
wanted to plead guilty pursuant to his own free will. He
specifically testified that he understood he would receive
a 35-year sentence from this Court for his plea. The
Court entered a finding that the Defendant’s plea [was]
knowing and voluntary.
“When a trial court does not hold a competency hearing, ‘our standard
of review is whether a reasonable judge, situated as was the trial court judge,
should have experienced doubt in regard to the defendant's competency to stand
trial.’” Id. at 256, quoting Smith v. Commonwealth, 244 S.W.3d 757, 760 (Ky.
App. 2008). Based upon the findings by the trial court and our own review of the
limited record before us, we are not persuaded that the trial court was obligated to
hold a competency hearing sua sponte. Counsel informed the court that Jett’s
competence had not been raised, Jett coherently engaged the court during his plea
colloquy, and he signed the formal documents to enter a guilty plea. Although Jett
asserts he suffered “mental problems and issues in the past,” he has not otherwise
demonstrated that “he lacked the ‘capacity to appreciate the nature and
consequences of the proceedings against [him] or to participate rationally in [his]
own defense.’” Id., quoting KRS 504.060(4). After careful review, we find no
error and conclude the court properly accepted Jett’s guilty plea.
Jett next argues that the court erred by ignoring his alleged mental
illnesses, including schizophrenia and depression, which could have excused his
criminal conduct. Jett’s argument implies that he would have relied on an extreme
-5-
emotional disturbance defense had he proceeded to trial. However, by pleading
guilty, Jett waived “all defenses other than that the indictment charged no offense.”
Greer v. Commonwealth, 713 S.W.2d 256 (Ky. App. 1986) (citation omitted).
Finally, we conclude the trial court did not err by failing to hold an
evidentiary hearing on the RCr 11.42 motion. “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.” Fraser v. Commonwealth,
59 S.W.3d 448, 452 (Ky. 2001). We conclude that Jett’s allegations were resolved
by examining the record, and an evidentiary hearing was not warranted.
For the reasons stated herein, the order of the Jefferson Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kevin Jett, pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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