ROUSE (TIMOTHY D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 16, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001549-MR
TIMOTHY D. ROUSE, JR.
v.
APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 07-CR-00100
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KELLER, JUDGES; LAMBERT,1 SENIOR JUDGE.
DIXON, JUDGE: Appellant, Timothy D. Rouse, Jr., appeals pro se from an order
of the Fulton Circuit Court denying his RCr 11.42 and RCr 8.10 motions. Finding
no error, we affirm.
1
Senior Judge Joseph Lambert 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.
In August 2007, a Fulton County Grand Jury indicted Appellant on
one count of second-degree forgery and one count of second-degree possession of
a forged instrument. The indictment charged that Appellant “falsely completed or
altered court orders by forging the name of the special circuit judge in attempt to
hinder prosecution in another case and/or effect escape from custody.” Appellant
subsequently entered into a plea agreement with the Commonwealth whereby he
agreed to plead guilty to the second-degree forgery charge and the Commonwealth
agreed to dismiss the possession of a forged instrument charge.
On August 30, 2007, Appellant appeared in open court with his
attorney for a hearing to determine whether his plea was knowing, voluntary and
intelligent. During the colloquy with the trial court, Appellant stated that he had
been told that the sentence in this case would run concurrently with a sentence he
received in another separate case. The trial court informed Appellant that the
decision whether to run sentences concurrently or consecutively was solely within
the discretion of the trial court and could not be part of any plea agreement. The
trial court specifically asked Appellant whether he needed additional time to
consider the matter. Appellant responded in the negative and clearly indicated that
he understood the sentencing procedure. Despite being informed that he could
choose not to plead guilty, Appellant again confirmed that he wished to proceed
and enter his plea. Based upon Appellant’s statements during the colloquy, the
trial court determined that his plea was knowing, intelligent and voluntary.
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A sentencing hearing was held the following day wherein defense
counsel again asked the trial court to run the current sentence concurrent with
Appellant’s twenty-seven year sentence in Indictment No. 06-CR-00013.
Although the Commonwealth did not take a position on how the sentences should
run, the prosecutor noted that applicable sentencing provisions could prohibit the
sentences from running concurrently. The trial court thereafter commented that
concurrent sentences would depreciate the seriousness of the crimes and ordered
the current two and a half year sentence to run consecutive to the twenty-seven
year sentence. When asked if he had any questions, Appellant responded, “No.”
The final judgment and sentence was entered on August 31, 2007.
Appellant immediately thereafter began filing numerous and repetitive
collateral motions, including but not limited to four RCr 11.42 motions, four CR
60.02 motions, and at least two RCr 8.10 motions to withdraw his guilty plea.2
Most of the motions included a request for the appointment of counsel and an
evidentiary hearing. The trial court denied each on the merits. Finally, on March
2, 2009, the court entered an order stating, in part:
IT IS HEREBY the findings of this Court that Defendant
has created a lengthy record, the majority of which
ultimately is much ado about absolutely nothing, and has
continually filed repetitive pleadings, despite the Court’s
ruling on those various issues. Defendant has several
other felony cases from multiple jurisdictions, all
stemming in one way or another from Defendant’s
original Fulton Circuit Court case, 06-CR-00013,
involving the assault and robbery of David Homra, now
2
In a February 2009 order, the trial court noted that Appellant filed the same repetitive motions
at four month intervals.
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deceased. Defendant has a history of procuring his
release (while he was in custody with the Kentucky
Correctional Psychiatric Center at LaGrange, Kentucky),
and attempting subsequent release by subterfuge, by
falsifying records, and by forgery of a prosecutor’s and
judge’s signature. Defendant’s actions have been
calculated and executed with the hope that he can pull the
wool over the eyes of someone involved in the criminal
justice process to which he is a constant party.
The Court further finds that it has reviewed in its
entirety the record in the captioned matter and can find
no substantive matter which would require any further
action by this Court. . . .
...
IT IS, THEREFORE, THE ORDER OF THIS COURT
that, to the extent there are any motions pending which
have not yet been ruled upon, any and all such motions
should be, and are hereby, denied.
In this Court, Appellant argues that the trial court erred by failing to
hold evidentiary hearings on his RCr 11.42 and 8.10 motions. Due to the
numerous pleadings and repeated notices of appeal, it is not entirely clear from the
record which order of the trial court Appellant actually appeals from.
Nevertheless, the
underlying basis of these motions is the same. Namely, Appellant claims that his
guilty plea was rendered involuntary when the prosecutor “reneged” on his oral
agreement “that the Commonwealth would make no sentence recommendation
toward the sentence in Indictment No. 07-CR-00100, forgery second degree
whether it be to favor or opposse [sic] concurrent sentences.”
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In an RCr 11.42 proceeding, the movant has the burden to establish
convincingly that he was deprived of some substantial right that would justify the
extraordinary relief afforded by the post-conviction proceeding. Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). Furthermore, an evidentiary
hearing is warranted only “if there is an issue of fact which cannot be determined
on the face of the record.” Stanford v. Commonwealth, 854 S.W.2d 742, 743-44
(Ky. 1993), cert. denied, 510 U.S. 1049 (1994); RCr 11.42(5). See also Fraser v.
Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981
S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026 (1999). “Conclusionary
allegations which are not supported by specific facts do not justify an evidentiary
hearing because RCr 11.42 does not require a hearing to serve the function of a
discovery deposition.” Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky.
2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard
v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
RCr 8.10 provides in pertinent part that “[a]t any time before
judgment the court may permit the plea of guilty . . . to be withdrawn and a plea of
not guilty substituted.” While this language is permissive, our Supreme Court has
held that a trial court may exercise discretion as to the withdrawal of a guilty plea
only after first determining that the plea was voluntary. Rodriguez v.
Commonwealth, 87 S.W.3d 8 (Ky. 2002). If the court finds that the plea was not
voluntary, “the motion to withdraw must be granted.” Id. at 10. In Rigdon v.
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Commonwealth, 144 S.W.3d 283, 287-89 (Ky. App. 2004), a panel of this Court
discussed the procedure a trial court must follow:
When a criminal defendant pleads guilty, Rule 8.10[3] of
the Kentucky Rules of Criminal Procedure (RCr) requires
the trial court receiving the guilty plea to determine on
the record whether the defendant is voluntarily pleading
guilty. [Bronk v. Commonwealth, 58 S.W.3d 482, 486
(Ky. 2001)]. Whether a guilty plea is voluntarily given is
to be determined from the totality of the circumstances
surrounding it. [Id.] The trial court is in the best position
to determine the totality of the circumstances surrounding
a guilty plea. [Id.] Once a criminal defendant has
pleaded guilty, he may move the trial court to withdraw
the guilty plea, pursuant to RCr 8.10. If the plea was
involuntary, the motion to withdraw it must be granted.
[Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky.
2002)]. However, if it was voluntary, the trial court may,
within its discretion, either grant or deny the motion. [Id.]
Whether to deny a motion to withdraw a guilty plea
based on a claim of ineffective assistance of counsel first
requires “a factual inquiry into the circumstances
surrounding the plea, primarily to ascertain whether it
was voluntarily entered.” [Bronk, 58 S.W.3d at 489
(Cooper, J., concurring)]. The trial court's determination
on whether the plea was voluntarily entered is reviewed
under the clearly erroneous standard. [Id.] A decision
which is supported by substantial evidence is not clearly
erroneous. [Baltimore v. Commonwealth, 119 S.W.3d
532, 539 (Baltimore v. Commonwealth, 119 S.W.3d 532,
539 (Ky. App. 2003)]. If, however, the trial court
determines that the guilty plea was entered voluntarily,
then it may grant or deny the motion to withdraw the plea
at its discretion. This decision is reviewed under the
abuse of discretion standard. [Bronk, 58 S.W.3d at 487.]
A trial court abuses its discretion when it renders a
decision which is arbitrary, unreasonable, unfair, or
unsupported by legal principles. [Goodyear Tire and
Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.
3
Presumably this citation should have been to RCr 8.08 since that rule states that a court “shall
not accept the plea without first determining that the plea is made voluntarily with understanding
of the nature of the charge.” RCr 8.10 pertains to the withdrawal of a guilty plea.
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2000). Cf. Kennedy v. Commonwealth, 962 S.W.2d 880,
882 (Ky. App. 1997) (holding that “fair play and
honesty” as well as RCr 8.10, require a trial court to
permit a defendant to withdraw his guilty plea, despite
the fact that it was made knowingly, voluntarily, and
intelligently as part of a plea agreement, where the trial
court subsequently declined to follow the
Commonwealth's sentencing recommendation).]
Upon review of the record, we are convinced that the trial court
correctly denied an evidentiary hearing as it was clear that Appellant's guilty plea
was voluntary and he was not entitled to either withdrawal of his plea or any other
post-conviction relief. During the lengthy plea colloquy, Appellant acknowledged
that he understood his constitutional rights and the charges against him. The trial
court specifically questioned Appellant and counsel as to the voluntariness of the
plea. The trial court gave Appellant ample opportunity to withdraw his plea or to
express dissatisfaction with counsel during the plea colloquy. Appellant
unequivocally stated that, despite the court’s admonition that only it could
determine how the sentences would run, he nevertheless wished to enter a guilty
plea.
Furthermore, Appellant’s claim that the Commonwealth “reneged” on
its agreement is plainly refuted from the record. The plea agreement contains no
mention of concurrent/consecutive sentencing. And there is certainly no evidence
that the prosecutor made any “behind the scenes” promise regarding such. Cf.
Woods v. Commonwealth, 469 S.W.2d 765 (Ky. 1971). Finally, the prosecutor
clearly did not ask the trial court during the hearing to run the sentences
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concurrently, but rather commented that applicable sentencing provisions may
have prohibited a concurrent sentence.
We are convinced that the trial court adequately determined the
voluntariness of Appellant's plea. Accordingly, the trial court did not abuse its
discretion by denying an evidentiary hearing as both Appellant’s RCr 11.42 and
RCr 8.10 motions were wholly lacking in merit.
The order of the Fulton Circuit Court denying Appellant’s RCr 11.42
and RCr 8.10 motions is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy D. Rouse, Jr., Pro Se
Eddyville, Kentucky
Jack Conway
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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