ROACH (TERRY WAYNE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 9, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001961-MR
TERRY WAYNE ROACH
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 01-CR-00037
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON AND KELLER, JUDGES.
ACREE, JUDGE: Terry Roach appeals the order of the McCracken Circuit Court
denying his motions to vacate his sentence and conviction pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42 and for a hearing. For the following
reasons, we affirm.
On February 16, 2001, Roach was indicted for murder and first-degree
robbery, and on June 30, 2002, he entered a guilty plea. At the plea hearing, the
trial judge inquired into the knowing and voluntary nature of Roach’s plea. The
Commonwealth recommended sentences of life without the possibility of parole
for twenty-five years for the murder charge and twenty years for the first-degree
burglary charge, the sentences to run concurrently. Before he was sentenced on
August 8, 2002, Roach attempted to withdraw his plea, claiming he had been
forced to enter it. The trial judge was not persuaded and proceeded to sentence
Roach as the Commonwealth recommended. Roach’s conviction was affirmed by
the Kentucky Supreme Court on direct appeal, and the decision became final on
January 8, 2004. Roach v. Commonwealth, No. 2003-SC-0013-TG (Ky., January
14, 2004).
Roach then filed a motion pursuant to RCr 11.42 alleging he was
denied effective assistance of counsel. This original motion was filed on March 5,
2004, well within the three-year time limit of RCr 11.42(10). Roach argued his
trial counsel had misinformed him about his potential sentence causing him to
enter the guilty plea involuntarily, and that his counsel had improperly failed to
move for the suppression of certain evidence. At the same time, Roach filed both a
motion for an evidentiary hearing on his RCr 11.42 motion and a motion
requesting appointment of counsel. The Commonwealth did not respond to any of
these motions.
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On March 11, 2004, Roach requested the trial court to hold its ruling
on his RCr 11.42 motion in abeyance until appointed counsel could file a
supplemental RCr 11.42 motion; the trial court never ruled on this motion.1 On
March 24, 2004, the trial court appointed the Department of Public Advocacy
(DPA) to represent Roach. Roach’s attorney entered his notice of appearance on
May 6, 2004, but did not file the supplement to Roach’s original RCr 11.42 motion
until September 3, 2008, more than four years after the original motion was filed.
The supplemental motion supported Roach’s argument that he had been “forced”
to enter his guilty plea and referenced Roach’s argument regarding his counsel’s
failure to file a suppression motion; however, it also raised new issues allegedly
demonstrating the ineffectiveness of trial counsel’s assistance.
The Commonwealth responded to the supplemental motion asserting
that both the original and supplemental motions were barred by the three-year
limitation established in RCr 11.42(10) and the doctrine of laches. In an order
entered September 23, 2008, the trial court ruled the supplemental motion was both
untimely and barred by laches and denied Roach’s original motion without a
hearing. This appeal followed.
Roach asserts neither the original nor the supplemental motion was
time-barred, either by the three-year limit of the Rule or by laches, and that the trial
court should have conducted an evidentiary hearing before denying either motion.
1
We need not consider whether the three-year limitation in RCr 11.42 can be “abated” by such a
motion because it was Roach’s “duty to insist upon a ruling [before expiration of the three-year
period], and failure to do so is a waiver.” Brown v. Commonwealth, 890 S.W.2d 286, 290 (Ky.
1994), citing Bell v. Commonwealth, 473 S.W.2d 820 (Ky. 1971).
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The Commonwealth responds by contending the supplemental motion was
untimely, both motions were barred by laches, and Roach was not entitled to an
evidentiary hearing. Additionally, the Commonwealth asserts that, in any event,
issues regarding timeliness are moot because the matter was properly dismissed on
its merits.
First, we address the Commonwealth’s contention that the trial court
dismissed both the original motion and the supplemental motion on their merits.
The wording of the trial court’s order leads us to believe it dismissed the
supplemental motion based upon timeliness and laches only, and dismissed the
original motion on its merits. The court specifically found the supplemental
motion was untimely and was barred by laches. There is no mention of the
original motion in the portions of the order which address the timing issues, and
the court did not make specific findings or conclusions with respect to the original
motion. Taken as a whole, it appears the trial court dismissed only Roach’s
original motion on its merits. The matters of timeliness and laches, therefore, are
not moot, and we address them now.
RCr 11.42(10) requires that a defendant file a motion pursuant to this
Rule within three years of the judgment’s becoming final, with certain exceptions
which toll the running of the three-year period. There has been no argument the
limit should be tolled in this case. The same subsection also permits the
Commonwealth to urge the application of the doctrine of laches even before
expiration of the three-year limitation “when the delay has prejudiced the
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Commonwealth’s opportunity to present relevant evidence to contradict or
impeach the movant’s evidence.” RCr 11.42(10).
In this case, Roach did all that was required of him to preserve the
issues raised in his original motion. He filed that motion within the three-year
limit provided by the Rule and promptly requested appointment of counsel.
Furthermore, the motion was filed only about two months after the Supreme Court
affirmed his conviction and it became final. It is unlikely this two-month lapse
caused the Commonwealth any prejudice and, as Roach correctly notes, the
Commonwealth has failed to identify how it has been prejudiced. When Roach
filed his original motion, the Commonwealth was put on notice of every problem
Roach perceived in his trial counsel’s representation. Consequently, the
Commonwealth had ample opportunity to preserve evidence or take whatever steps
it deemed necessary to adequately respond to every issue reasonably ascertainable
from that original motion. DPA’s failure to file the supplemental motion before
the three years expired did not affect the timing of or notice provided by Roach’s
original motion.
However, the three-year limitation does impact our consideration of
the substance of the DPA’s supplemental motion. Roach was “required to avail
himself of RCr 11.42 as to any ground of which he is aware, or should be aware,
during the period when the remedy is available to him.” McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). While those portions of the
supplemental motion which support the issues raised in the first motion should be
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considered by the trial court, any issues raised for the first time in the supplemental
motion should not. This rule does not prejudice Roach. Even a lay person who is
a criminal defendant knows generally the reasons he believes the assistance of his
counsel was inadequate, and in most cases should be able to relay them in a timely
pro se RCr 11.42 motion. See RCr 11.42(2). Permitting new issues to be raised
for the first time after the three-year period has lapsed encourages defendants to
file baseless initial motions, move for permission to supplement them, and then
urge appointed counsel to formulate new reasons trial counsel was ineffective.
Without some early notice to the Commonwealth of the portions of
his case a defendant believes to have been mishandled, evidence on those matters
may become more difficult to locate or the Commonwealth may be prejudiced in
other ways by the delay. The Kentucky Supreme Court has determined to draw the
line at three years and this Court is obligated to enforce that limitation.
Therefore, we hold the circuit court was correct in ruling that it was
barred from considering the issues raised in the supplemental motion to the extent
those issues were not first raised in the original motion. We are thus left with the
substance of the original motion, considering also the legal arguments contained in
the supplemental motion that relate only to the points raised in the original motion,
and to Roach’s motion for an evidentiary hearing. We will turn to the latter first.
A trial judge should conduct an evidentiary hearing on an RCr 11.42
motion when the motion “raises a material issue of fact that cannot be determined
on the face of the record[.]” RCr 11.42(5). However, an evidentiary hearing is
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unnecessary when there is nothing outside the record which is material to the
determination. Skaggs v. Commonwealth, 803 S.W.2d 573, 576 (Ky. 1990). Here,
the trial court’s order determined that “the record conclusively resolves the
claims[.]” Maggard v. Commonwealth, 394 S.W.2d 893, 894 (Ky. 1965). This is
the equivalent of determining that no hearing was necessary. Roach alleges this
was error. We disagree with regard to Roach’s claim that his plea was not
knowing and voluntary because the record affirmatively demonstrates it was. We
disagree with regard to Roach’s claim that counsel was ineffective in failing to
move to suppress recordings of his conversations with his girlfriend because
nothing in the record gives rise to any reasonable inference that his girlfriend did
not consent to the recordings.
Roach’s argument regarding his claim that his plea was not voluntary
has a few facets. He is of the opinion there was no aggravating factor that would
have justified a punishment equal to the sentence to which he agreed.2 This is
patently incorrect. The aggravating factor was his robbery of the victim. KRS
532.025(2)(a)2.
Partly because of the foregoing fact, we are not persuaded by the next
facet of Roach’s argument. That argument is that his counsel’s advice that he
would face the death penalty was unreasonable if not erroneous, thereby
2
He apparently relies on the last sentence of KRS 532.025(3) which states: “In all cases unless
at least one (1) of the statutory aggravating circumstances enumerated in subsection (2) of this
section is so found, the death penalty, or imprisonment for life without benefit of probation or
parole, or the sentence to imprisonment for life without benefit of probation or parole until the
defendant has served a minimum of twenty-five (25) years of his sentence, shall not be
imposed.”
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constituting ineffective assistance. We disagree. It is true that incorrect advice
about the possible sentence, and the reasonableness of accepting a plea offer in
light of that sentence, could amount to ineffective assistance of counsel. See
Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988). However, the advice in this
case was not incorrect. Life without the possibility of parole for twenty-five years
and the death penalty were both sentences that could have been imposed upon
Roach had he been convicted of murdering and robbing the victim. KRS
532.025(2)(a)2. Given the evidence supporting the accusations against Roach, and
after his motion to exclude the death penalty as a possible sentence failed, his trial
counsel was justified in advising him that a jury could sentence him to death.
There was nothing deficient about this advice, and Roach therefore cannot meet
even the first requirement of the Strickland test that “the defendant must show that
counsel’s performance was deficient.” Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
In the final facet of this argument he claims he was “forced” into the
plea agreement by his attorneys. This is the same argument he has already
presented to the Supreme Court in his direct appeal. Considering the record, we
find nothing to indicate force or coercion was involved. Instead, like the Kentucky
Supreme Court, “we are convinced that the trial court correctly determined that
Appellant’s guilty plea was voluntary.” Roach, supra, at p. 2. However, as Roach
points out, review of the denial of an RCr 11.42 motion is not identical to a review
of the voluntariness of the plea on direct appeal. See Martin v. Commonwealth,
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207 S.W.3d 1, 4 (Ky. 2006). Therefore, abundantly cautious, we will again
examine the record to determine whether Roach’s guilty plea was knowing and
voluntary.
In general, a fact placed in issue relative to a plea of guilty can be
resolved based on the record where, as here, the trial judge specifically inquired
into the knowing and voluntary nature of the entry of Roach’s plea. See Centers v.
Commonwealth, 799 S.W.2d 51, 55 (Ky.App. 1990). For a guilty plea to be upheld
there must be an affirmative showing that it was entered knowingly and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1712, 23
L.Ed.2d 274 (1969). The transcript of the colloquy Roach set forth in his original
motion demonstrates that, after being sworn, he affirmatively acknowledged the
following: he killed the victim of the crime and robbed him; he understood his
constitutional rights and that he was waiving them; he knew he was facing the
death penalty; the Commonwealth’s recommended sentence was as stated earlier in
this opinion; his plea was “offered freely, willingly, knowingly, voluntarily, and
intelligently, without threat of force”; and he had read, understood and signed the
plea agreement.3 “Solemn declarations in open court carry a strong presumption of
verity.” Centers at 54, citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52
L.Ed.2d 136 (1977). Roach “filed no affidavits in support of his claim of coercion
and did not identify any particular instance of the alleged manipulation other than
3
Furthermore, the colloquy showed his counsel had gone over the guilty plea agreement with
Roach and had discussed his constitutional rights as well. When asked whether she had any
reason to believe Roach’s guilty plea was “any less than freely, willingly, knowingly,
voluntarily, and intelligently offered” she replied that she did not.
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defense counsel’s truthful warning that the death penalty was a very real
possibility.” Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009). No
additional inquiry on the part of the trial judge was necessary to determine whether
Roach’s guilty plea was knowingly and voluntarily offered and entered. We reach
the same conclusion reached by the Supreme Court – Roach’s guilty plea was
knowing and voluntary.
Roach’s second claim of ineffective assistance is that his counsel
failed to move to suppress his incriminating statements on grounds that the police
obtained them by recording conversations between himself and his girlfriend
without her consent. Roach claimed his girlfriend only made the calls as a “result
of being coerced and threatened if she did not consent to recording her
conversation [and] Counsel was told by [girlfriend] that she had been threatened by
police to make the call.” If this were true, it may have warranted exclusion of the
evidence. See Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001).
However, Roach’s claim is not supported by affidavit or other
evidence. While incarcerated and acting pro se, Roach was handicapped in his
ability to collect such evidence, but even DPA counsel subsequently assigned to
him did not support his argument with any evidence. In the absence of any
evidence from which even a reasonable inference could be drawn indicating
Roach’s girlfriend had not consented to the tape recording of her conversations, it
was not error for the trial judge to decide the issue without a hearing. “RCr 11.42
does not require a hearing to serve the function of a discovery deposition.”
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Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002)(overruled on other
grounds), cert. denied, 540 U.S. 838, 124 S.Ct. 96, 157 L.Ed.2d 70 (2003). When
we assess the reasonableness of the exercise of defense tactics, such as the decision
not to move to suppress evidence, we apply “a heavy measure of deference to
counsel’s judgments.” Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at
2066. Strickland held that there exists a strong presumption in the law that the
assistance of counsel was within the range of professional guidelines, and Roach’s
allegations, unsupported by evidence, failed to rebut this presumption. Strickland,
466 U.S. at 687, 104 S.Ct. at 2064. Roach’s argument on this issue is without
merit.
For the foregoing reasons, we affirm the order of the McCracken
Circuit Court denying Roach relief pursuant to RCr 11.42.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Marguerite Neill Thomas
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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