TAYLOR (LARRY WAYNE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 9, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000496-MR
LARRY WAYNE TAYLOR
v.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 05-CR-00075
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART
AND REMANDING
** ** ** ** **
BEFORE: ACREE, CAPERTON AND THOMPSON, JUDGES.
ACREE, JUDGE: Larry Wayne Taylor pleaded guilty to murder, tampering with
physical evidence, and being a persistent felony offender (PFO) in the first degree,
and was sentenced to thirty-five years in prison by the Knox Circuit Court. His
subsequent motion for relief pursuant to Kentucky Rule of Criminal Procedure
(RCr) 11.42 was denied without an evidentiary hearing or appointment of counsel.
We affirm in part and remand for a hearing.
Appellant was indicted for the murder of David Messer and for
tampering with certain evidence, in addition to the PFO charge. Following
indictment, Appellant was admitted to the Kentucky Correctional Psychiatric
Center (KCPC) on June 8, 2005, for a competency evaluation and psychiatric
treatment. The trial judge determined Appellant was competent to stand trial based
on testimony from a treating psychiatrist that Appellant was competent, testimony
that Appellant’s psychotic symptoms were feigned, and a diagnosis of
psychopathy. Specifically, the mental health professionals of KCPC found
Appellant was deliberately attempting to deceive the authorities as to his mental
status. Appellant returned to non-psychiatric incarceration.
After Appellant exhibited unusual behavior while in custody, he was
again admitted to KCPC on March 31, 2006, for further competency evaluations.
Again mental health professionals concluded he was feigning symptoms of
psychosis. The treating psychologist also found Appellant was competent to stand
trial and able to “1) Work with his lawyer on a legal strategy. 2) Understand
instruction and follow advice. 3) Appreciate the nature and consequences of the
proceedings against him.” The trial judge agreed and ruled Appellant competent.
Between Appellant’s indictment and entry of the guilty plea, the
Commonwealth submitted evidence to Appellant’s trial counsel pursuant to
criminal discovery rules. This evidence included: autopsy, odontology, and
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anthropology reports; a lab report on ignitable liquids; various audio tapes of
testimony and interviews; and various video tapes and photographs. Appellant
claimed the victim had been entering Appellant’s home in violation of an
Emergency Protective Order and that he was afraid of the victim as the result of
prior interactions with him.
On August 11, 2006, Appellant filed a motion to enter a guilty plea
and appeared before the trial judge. The motion, signed by Appellant, specifically
provided that Appellant understood he was constitutionally guaranteed “[t]he right
to appeal [his] case to a higher court[,]” in addition to other important rights, and
that in pleading guilty he was waiving those rights. The arraignment order, also
signed by Appellant, contained identical language informing Appellant of the
rights he waived by entering the plea. The order included a statement that
Appellant understood he could receive a sentence of twenty to fifty years or life
imprisonment for the murder charge, in addition to one to five years for the
tampering charge.
The trial judge conducted a colloquy during the plea hearing to
ascertain whether Appellant entered the plea voluntarily, intelligently, and
understandingly pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709
(1969). The colloquy was thorough. The trial judge explained Appellant’s
possible sentence, asked whether trial counsel had informed Appellant about
possible defenses, and advised Appellant that in entering a guilty plea he forfeited
the right to appeal his case. Appellant’s answers to the trial judge’s questions
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expressed that he understood the rights he was waiving, in addition to possible
defenses, and that he entered his plea voluntarily and with knowledge of the
consequences of doing so.
The trial judge accepted the plea and sentenced Appellant to thirtyfive years for the murder charge and five years for the tampering charge, as
recommended by the Commonwealth; the sentences run concurrently. The PFO
charge was dismissed in accordance with the plea agreement. After his sentence
was entered, Appellant moved the trial court to vacate the guilty plea pursuant to
RCr 11.42 and also requested an evidentiary hearing and appointment of counsel to
assist with the motion. The trial court denied the motion without conducting a
hearing or appointing an attorney. Appellant alleges the trial court erred in
denying his RCr 11.42 motion, failing to appoint counsel, and ruling without
conducting an evidentiary hearing.
Appellant’s RCr 11.42 motion asserted his plea had not been
voluntary and knowing due to the ineffective assistance of counsel. On appeal, he
claims the trial court erred in denying his motion on four bases of ineffective
assistance of counsel: that trial counsel (1) misadvised him as to the possibility of
receiving a life sentence if he went to trial; (2) improperly failed to request
additional psychological evaluations; (3) failed to inform Appellant of possible
defenses, namely extreme emotional disturbance and self-protection; and (4) failed
to advise Appellant he waived his right to file a direct appeal by entering a guilty
plea.
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RCr 11.42 permits “[a] prisoner in custody under sentence or a
defendant on probation, parole or conditional discharge who claims a right to be
released on the ground that the sentence is subject to collateral attack” to file a
motion to alter, amend, or vacate the sentence. An appellant is entitled to an
evidentiary hearing on the matter when the motion raises “a material fact that
cannot be determined on the face of the record[.]” RCr 11.42(5).
In considering a request for a hearing, “[t]he 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)
(citing Drake v. United States, 439 F.2d 1319, 1320 (6th Cir. 1971)). On the other
hand, if the record conclusively resolves the claims, no hearing is necessary.
Maggard v. Commonwealth, 394 S.W.2d 893, 894 (Ky. 1965).
For a guilty plea to be upheld, there must be an affirmative showing
that it was entered knowingly and voluntarily. Boykin, 395 U.S. 238 (1969).
“Solemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629 (1977).
A defendant “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different[,]” in order to support a finding that he received ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065
(1984). In the context of a guilty plea, a defendant must demonstrate that he would
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not have pleaded guilty but for the errors of the attorney. Hill v. Lockhart, 474
U.S. 52 (1985).
Specifically, trial counsel’s behavior must fall below an objective
standard of reasonableness for an appellant to successfully allege he received
ineffective assistance of counsel. Id. at 57. A court must assess the reasonableness
of counsel’s actions in the context of all the circumstances, and “[j]udicial scrutiny
of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689.
Second-guessing strategic decisions with the benefit of hindsight is not permitted.
Id. There is a strong presumption trial counsel provided adequate assistance. Id. at
690.
Appellant first claims his attorney did not inform him that entering a
guilty plea would preclude directly appealing his conviction; however, he raises
this argument for the first time on appeal. It is apparently in response to the trial
court’s order denying his RCr 11.42 motion, in which the trial judge declined to
address certain grounds for error because, if true, they were errors of the trial court
and not of Appellant’s counsel. Accordingly, they could be addressed only on
direct appeal, and not by an RCr 11.42 motion. Appellant now claims he did not
understand he would not be permitted to raise certain arguments on an RCr 11.42
motion and that his lack of understanding was the result of ineffective assistance of
counsel. Because this argument was not properly preserved for appeal, and in fact
not presented to the trial court at all, our review is for manifest injustice. RCr
10.26.
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Appellant stated under oath during the plea colloquy that he
understood he would not be permitted to appeal his conviction. Furthermore, the
Commonwealth’s offer and the guilty plea also contain such a statement. During
the plea colloquy Appellant informed the trial judge that his attorney had explained
all the documents Appellant had signed relating to the entry of the plea, and that he
understood them. He now asserts he did not understand he was waiving the right
to file a direct appeal because neither his trial attorney nor the trial judge used the
phrase “direct appeal.” He does not deny he understood he was waiving the right
to some form of appeal of his conviction. In common usage of legal terms, the
word “appeal” signifies a direct appeal. If trial counsel informed Appellant that
entry of the guilty plea waived the right to appeal the conviction, and Appellant
admits he was so informed, counsel’s assistance was adequate. There was no
manifest injustice on this matter.
Furthermore, the matter was resolved by the record alone. Even if
Appellant had raised the issue before the trial judge, it properly could have been
disposed of without an evidentiary hearing. Appellant made a sworn statement in
open court that he understood he was waiving his right to appeal the conviction,
and this statement was consistent with the signed documents which Appellant’s
trial attorney explained to him. In the absence of other facts which call his sworn
statement into doubt, no hearing would have been necessary to resolve the issue.
Appellant next claims trial counsel did not inform him of the
availability of two defenses, extreme emotional disturbance (EED) and self-7-
defense. “Extreme emotional disturbance is a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one's judgment, and to cause one to act
uncontrollably from the impelling force of the extreme emotional disturbance
rather than from evil or malicious purposes.” McClellan v. Commonwealth, 715
S.W.2d 464, 468-469 (Ky. 1986). KRS 503.050 establishes the defense of selfprotection:
(1) The use of physical force by a defendant upon
another person is justifiable when the defendant believes
that such force is necessary to protect himself against the
use or imminent use of unlawful physical force by the
other person.
(2) The use of deadly physical force by a defendant upon
another person is justifiable under subsection (1) only
when the defendant believes that such force is necessary
to protect himself against death, serious physical injury,
kidnapping, sexual intercourse compelled by force or
threat, felony involving the use of force, or under those
circumstances permitted pursuant to KRS 503.055.
KRS 503.050. KRS 503.055 creates the following presumption:
(1) A person is presumed to have held a reasonable fear
of imminent peril of death or great bodily harm to
himself or herself or another when using defensive force
that is intended or likely to cause death or great bodily
harm to another if:
(a) The person against whom the defensive force was
used was in the process of unlawfully and forcibly
entering or had unlawfully and forcibly entered a
dwelling, residence, or occupied vehicle, or if that person
had removed or was attempting to remove another
against that person’s will from the dwelling, residence, or
occupied vehicle; and
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(b) The person who uses defensive force knew or had
reason to believe that an unlawful and forcible entry or
unlawful and forcible act was occurring or had occurred.
KRS 503.055.
Had he been aware of these two defenses, Appellant claims, he would
have rejected the plea offer and insisted upon continuing to trial.
The trial court was correct to note that the presence of EED mitigates
a murder charge to one of manslaughter in the first degree.1 Kentucky Revised
Statute (KRS) 507.020(1)(a). For the murder charge, Appellant was eligible for a
sentence of twenty to fifty years or life imprisonment. KRS 532.060(2)(a). Even
if Appellant had submitted evidence at trial that he did suffer from EED at the time
he killed the victim, the PFO enhancement would have made him eligible for the
same sentence as the murder charge: twenty to fifty years or life imprisonment.
KRS 532.080(6)(a). Either way, the charges Appellant faced at trial – murder,
tampering, and PFO or first-degree manslaughter, tampering, and PFO – made him
eligible for identical sentences. Given that fact, it is very unlikely receiving advice
on an EED defense would have caused him to decide not to enter a guilty plea to
secure a reduced sentence. Appellant has failed to show his attorney’s failure to
advise him of an EED defense resulted in prejudice.
1
“Extreme emotional disturbance for which there is a reasonable explanation or excuse does not
exonerate or relieve one of criminal responsibility. It simply reduces the degree of a homicide
from murder to manslaughter.” McClellan v. Com., 715 S.W.2d 464, 468 (Ky. 1986). See also
KRS 507.030 (A defendant is guilty of manslaughter when he has committed an act which does
not constitute murder due to extreme emotional disturbance.).
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No evidentiary hearing was required because the record conclusively
resolved the matter. Review of the record and the law made it clear Appellant
faced the same possible sentence at trial whether his trial counsel advised him of
the EED defense or not. Appellant raised no allegations which required further
examination of evidence regarding what transpired between himself and his
attorney.
The trial court denied Appellant’s RCr 11.42 motion on the selfdefense claim because he “has failed to show why, if he had known the elements of
this affirmative defense, he would not have entered a guilty plea but instead would
have insisted on going to trial.” The trial court’s rationale on this matter is flawed.
Clearly the reason Appellant would have insisted on trial if he had been aware of
this defense is that the successful argument of a self-protection defense exonerates
a defendant entirely. KRS 503.050. If Appellant could convince a jury he was
acting in self-defense, he would be required to serve no time in prison for killing
the victim. Furthermore, RCr 11.42 only requires a movant to “state specifically
the grounds on which the sentence is being challenged and the facts on which the
movant relies in support of such grounds.” Appellant did what the Rule requires.
He stated trial counsel did not inform him of a possible self-protection defense and
alleged that such knowledge would have altered his decision to enter the guilty
plea. He was not required to explain why knowledge of the possible defense
would have changed his decision, especially when the benefits of a successful selfprotection defense were obvious.
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Unlike the EED defense, the matter of the self-protection defense
could not be conclusively resolved by review of the record. Whether Appellant’s
trial counsel did in fact inform him of a self-protection defense is not apparent
from the colloquy. The trial judge only asked whether trial counsel had informed
Appellant of possible defenses – he did not address self-defense directly. The trial
court should have conducted an evidentiary hearing to determine whether
Appellant’s trial attorney informed him of the self-protection defense and, if not,
whether failing to do so fell below an objective standard of reasonable
representation.
As the next basis for his ineffective assistance of counsel claim,
Appellant asserts his trial attorney improperly advised him he would likely receive
a sentence of life imprisonment if he went to trial. Specifically, he states “his
lawyer . . . advised him that if his jurors heard that he was a convicted felon, and
used the PFO count at his trial . . . he would get a life term[.]” The essence of
Appellant’s argument is that he was wrongfully led to believe he would be
sentenced to life in prison if the case went to trial. This advice was accurate. As
previously noted, the murder charge carried a possible sentence of twenty to fifty
years or life imprisonment. Even if Appellant had successfully presented an EED
case, the PFO charge would have enhanced the possible sentence to twenty to fifty
years or life imprisonment. It is possible trial counsel believed such a sentence
was likely based upon the evidence and his knowledge of the case. We cannot
now say this advice was objectively unreasonable.
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This matter was properly resolved without an evidentiary hearing.
Appellant raised no issues of fact which could not be determined by an
examination of the record and the law, which made life imprisonment a possible
sentence. Appellant asserted only that his trial attorney advised him he would
likely receive life imprisonment. There was no need to supplement the record with
additional evidence.
Finally, Appellant asserts trial counsel should have requested an
independent psychiatric evaluation. This matter was conclusively resolved by the
record and therefore did not require an evidentiary hearing. By the time Appellant
entered his plea, the trial judge had already conducted two competency hearings
and had heard evidence from two psychiatric experts. Both experts concluded
Appellant had been feigning psychiatric symptoms as part of a legal strategy.
Furthermore, during the plea colloquy, Appellant stated that he fully understood
what was happening and was not suffering from a disorder which interfered with
his ability to reason. The record resolved this matter.
Additionally, trial counsel’s decision not to request additional
evaluation did not constitute ineffective assistance of counsel. After receiving two
competency hearings, both of which concluded Appellant was lying to mental
health professionals about his mental state, a third evaluation conducted by an
independent mental health professional might have been at best unproductive and
at worst damaging. This decision by trial counsel can be characterized as strategic
– it may very well have been the result of an effort to avoid wasting time and
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energy and to focus on more productive outlets. We will not second-guess the
strategic decision of Appellant’s trial counsel. Appellant has not demonstrated the
failure to request a third evaluation of Appellant’s mental state was objectively
unreasonable.
An RCr 11.42 movant is not entitled to the appointment of counsel
when a hearing is not required. Fraser v. Commonwealth, 59 S.W.3d 448, 453
(Ky. 2001)(citing Hemphill v. Commonwealth, 448 S.W.2d 60, 63 (Ky. 1969)). On
the other hand, a movant is entitled to the appointment of counsel when a hearing
is required. Id. Here, Appellant was entitled to a hearing to determine whether
counsel improperly failed to advise Appellant regarding a self-protection defense.
The trial judge’s refusal to appoint Appellant counsel to assist with his motion was
therefore improper.
The only allegation Appellant made in pursuit of his RCr 11.42
motion which could not conclusively be resolved on the face of the record was the
assertion trial counsel did not advise him regarding a self-protection defense. He
was entitled to representation by appointed counsel to conduct a hearing on this
matter. The trial court properly dismissed the motion on all other grounds.
Based on the foregoing, we remand for the limited purpose of
conducting a hearing to determine: (1) whether Appellant’s trial attorney did in
fact advise him on the possibility of asserting a self-protection defense and (2) if
not, whether failure to do so constituted ineffective assistance of counsel. On all
other alleged errors, we affirm.
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CAPERTON, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Wayne Taylor, Pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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