ROUSE (TIMOTHY D.) JR. VS. COMMONWEALTH OF KENTUCKY

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RENDERED: AUGUST 27, 2010; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2010-CA-000291-MR TIMOTHY D. ROUSE, JR. v. APPELLANT APPEAL FROM FULTON CIRCUIT COURT HONORABLE CHARLES W. BOTELER, JR., SPECIAL JUDGE ACTION NO. 06-CR-00013 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: STUMBO AND VANMETER, JUDGES; BUCKINGHAM,1 SENIOR JUDGE. BUCKINGHAM, SENIOR JUDGE: Timothy D. Rouse, Jr., appeals from an order of the Fulton Circuit Court denying his Kentucky Rules of Criminal Procedure 1 Senior Judge David C. Buckingham 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. (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02 motions for postconviction relief. We affirm. Rouse was indicted in March 2006 on charges of first-degree burglary, first-degree robbery, and first-degree assault. He was also charged with theft by unlawful taking over $300 and two counts of unlawful transaction with a minor in the second degree. Rouse entered pleas of not guilty and was appointed counsel. He insisted on representing himself, however, and, following a hearing, counsel was designated “stand-by” counsel pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). During the first day of trial, Rouse reached a plea agreement with the Commonwealth. In accordance with this agreement, he pled guilty to complicity to robbery in the first degree, complicity to assault in the first degree, and complicity to burglary in the second degree. The three remaining charges were dismissed. The trial court accepted Rouse’s guilty pleas and sentenced Rouse to ten years for complicity to robbery, ten years for complicity to assault, and seven and one-half years for complicity to burglary. Prior to final sentencing, Rouse moved the court to allow him to withdraw his guilty pleas. The court denied the motion and sentenced Rouse to 27 years and six months in prison pursuant to the plea agreement. Rouse filed an RCr 11.42 motion to vacate his convictions and sentences on February 7, 2008. On February 20, 2008, the circuit court entered an -2- order denying that motion and all simultaneously filed attendant motions, finding the basis of the motion to be totally without merit, both factually and legally. This Court declined to hear a belated appeal from that order. Since the disposition of his first RCr 11.42 motion, Rouse has filed at least two RCr 11.42 motions, three CR 60.02 motions, and numerous amendments and related and supplemental motions. On January 19, 2010, the circuit court entered an order denying relief pursuant to RCr 11.42 and CR 60.02, and this appeal followed. Rouse raises numerous arguments in his appeal. First, he argues that his guilty plea was involuntary because (1) it was physically coerced;2 (2) it was made following a misrepresentation regarding his parole eligibility;3 (3) it was induced by a promise of the prosecuting attorney which was not kept;4 (4) it was made while he was suffering from extreme emotional disturbance; and (5) it was made upon advice of incompetent counsel. Rouse also asserts that his waiver of 2 Rouse filed a 42 U.S.C. § 1983 action in the United States Distinct Court, Western District of Kentucky, against Terry Powell, Fulton County Police Chief; Benny Duncan, late Fulton City Police Officer; Michael B. Stacey, Commonwealth Attorney for Fulton County; and Richard L. Majors, Fulton County Attorney. He later added Ricky Parnell, Fulton County Jailer, as a defendant. All claims have been settled by the parties. 3 Rouse presented this argument in an RCr 8.10 motion to withdraw his guilty plea. The Fulton Circuit Court denied that motion, and this Court affirmed in an opinion entered on April 23, 2009. This Court found substantial evidence supporting the circuit court’s decision, and also found that even if Rouse were truly under a misapprehension regarding parole eligibility restrictions, that alone would not be sufficient to render his guilty plea involuntary. 4 Rouse claims that his guilty plea in this case was linked with a guilty plea in forgery case pending in a separate indictment No. 07-CR-00100. According to Rouse, the Commonwealth agreed to make no objection to concurrent sentences if he pled guilty in both cases. This Court denied Rouse’s motion to consolidate the instant appeal with appeal number 2009-CA-001549. -3- counsel was involuntary in violation of his rights under the Sixth Amendment of the U.S. Constitution and Section 11 of the Kentucky Constitution. Next, Rouse claims that the trial court abused its discretion by denying his CR 60.02 motion because a “misfortune of justice” prevented him from introducing new alibi evidence at the time of trial through no fault of his own and that he is actually innocent. He also argues that the trial court abused its discretion by rejecting his “guilty plea claim” on the grounds that it had already been presented to the Court of Appeals in his first appeal. Finally, Rouse argues that the trial court unfairly denied his RCr 11.42 motion and CR 60.02 motion without an evidentiary hearing. The circuit court first denied Rouse’s CR 60.02 motion because the court determined that through due diligence Rouse could have raised his alibi defense at the time of his trial in August 2007. The court pointed out that information regarding Rouse’s alleged actual whereabouts, specifically his presence at the robbery of a Speedway Oil in Louisville, were known to him at the time of his trial and plea agreement. Furthermore, the court pointed out that witnesses alleged to have knowledge of Rouse’s actual whereabouts testified at his trial and were not questioned about this information. The court also noted that since Rouse represented himself at trial, there is no reason the defense could not have been raised at that time. “Relief afforded by a 60.02 proceeding is extraordinary in nature and should be related to those instances where the matters do not appear on the face of -4- the record, were not available by appeal or otherwise, and were discovered after rendition of the judgment without fault of the party seeking relief.” Bd. of Trustees of Policemen’s & Firemen’s Ret. Fund of the City of Lexington v. Nuckolls, 507 S.W.2d 183, 186 (Ky. 1974). Because the standard for granting a CR 60.02 motion is so high, “a trial court’s ruling on the motion receives great deference on appeal and will not be overturned except for an abuse of discretion.” Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998). The test for whether a trial court abused its discretion is whether the decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The circuit court did not abuse its discretion in denying Rouse’s CR 60.02 motion. Rather, the court made a reasonable determination based on the record that the defense Rouse is now asserting could have been presented at the time of his trial and is not grounds for the “extraordinary” relief provided by CR 60.02. The circuit court also denied Rouse’s RCr 11.42 motion. First, the court rejected Rouse’s claim that at the time of the trial and entry of plea both he and his counsel were insane. The court noted that Rouse was examined for competency before the trial and deemed competent to proceed and that no evidence of insanity was observable to the court during the trial and plea process. The court also pointed out that Rouse’s contention that his plea was involuntary because he was misinformed about his parole eligibility was fully litigated in Rouse v. -5- Commonwealth, 2008 WL 4092869 (Ky. App. 2008)(2007-CA-002020-MR). Finally, the court rejected any argument maintaining that the Commonwealth failed to honor the plea agreement. Since the circuit court denied Rouse’s RCr 11.42 motion without an evidentiary hearing, review is “confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.” See Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). An RCr 11.42 motion “shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” RCr 11.42(3). This provision has been held to bar successive RCr 11.42 motions. See Fraser v. Commonwealth, 59 S.W.3d 448, 454 (Ky. 2001) (citing Butler v. Commonwealth, 473 S.W.2d 108, 109 (Ky. 1971)). Furthermore, an RCr 11.42 motion “is limited to issues that were not and could not be raised on direct appeal.” Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1988) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). Rouse makes no claims in his most recent RCr 11.42 motions that could not have been raised either on direct appeal or in his earlier RCr 11.42 motion. Therefore, the circuit court order entered on February 20, 2008, precludes -6- Rouse from asserting them now, the court properly denied his most recent RCr 11.42 motions. The circuit court also found that the issues raised in Rouse’s motions could be adequately resolved by the record and that an evidentiary hearing was unnecessary. In order to be entitled to an evidentiary hearing on a CR 60.02 motion, a movant must “affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Rouse has failed to meet this burden, and the record was sufficient to determine that he was not entitled to relief under CR 60.02. An evidentiary hearing is required on an RCr 11.42 motion where the motion on its face alleges an error such that the movant is entitled to relief under the rule and the motion raises an issue of fact that cannot be determined on the face of the record. See Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001). Rouse has failed to satisfy the first requirement of this test. His motion on its face does not assert any allegation that could not have been raised in his February 2008 RCr 11.42 motion; therefore, no evidentiary hearing was required. Accordingly, the order of the Fulton Circuit Court denying Rouse’s CR 60.02 and RCr 11.42 motions is affirmed. ALL CONCUR. -7- 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 -8-

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