ELDRED (FRANK) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 1, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001418-MR
FRANK ELDRED
v.
APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NOS. 90-CR-00073 & 90-CR-00076
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, NICKELL, AND STUMBO, JUDGES.
KELLER, JUDGE: Frank Eldred (Eldred) appeals from an order of the Russell
Circuit Court denying his motion for post-conviction relief pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42. For the following reasons, we affirm.
FACTUAL BACKGROUND
On June 27, 1991, Eldred was found guilty of murder and first-degree arson,
and was sentenced to life without the possibility of parole for twenty-five years and
life, respectively. The jury trial conviction was subsequently reversed by the
Supreme Court of Kentucky in Eldred v. Commonwealth, 906 S.W.2d 694 (Ky.
1994). Prior to retrial, Eldred entered an Alford1 plea to murder and first-degree
arson, with a sentence of 25 years on each charge to run consecutively for a total of
fifty years’ imprisonment.
Having reviewed the record, we adopt the following facts from the
Supreme Court’s decision in Eldred, 906 S.W.2d at 697-99:
On July 23, 1988, Herbert Cannon was killed when his
automobile was burned. The automobile was completely
destroyed by the extremely hot fire, which also
incinerated the body, although the official cause of death
was smoke inhalation and carbon monoxide intoxication.
The Commonwealth’s theory of the case was that the
decedent was killed by Appellant and a confederate,
Tommy Perdue, at the request of Cannon’s ex-wife, Sue
Melton, for the sum of $5,000.
The Commonwealth’s case was premised initially upon
the testimony of Appellant’s girlfriend, Cynthia Moore.
She came forward in August 1990 and accused Appellant
of the murder based upon statements he had made to her
during the course of their relationship. There was
additional evidence derived from the investigation of the
crime, although it apparently was insufficient to make a
case since no indictment was sought until after Moore
came forward.
In any event, Appellant was arrested on November 15,
1990. An indictment was filed the next day charging
Appellant, Melton, and Perdue, each with murder as a
principal, complicity to murder, first degree arson as a
principal, and complicity to first degree arson . . . .
On December 7, 1990, a trial was scheduled to begin on
June 10, 1991. Eventually, the trials of the three co1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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defendants were severed, and Appellant’s was slated to
go first.
Prior to trial, Melton entered into a plea agreement and agreed to testify
against Eldred. A jury convicted Eldred of murder and first-degree arson, and
Eldred appealed his conviction. The relevant issue raised on appeal was whether
the trial court erred in denying Eldred’s request to discover the medical and
psychiatric records of Melton and Moore, because their mental health issues called
into question their credibility. The Court concluded that the trial court abused its
discretion in denying the discovery sought by Eldred and remanded the case with
instructions for the trial court to conduct an in camera hearing “in the presence of
the prosecutor and defense counsel” to determine which information would be both
relevant and material to each witness’s credibility. Id. at 702.2
The in camera review was conducted on August 13, 1996. On November
22, 2005, Eldred entered a guilty plea and was sentenced on January 19, 2006. On
June 26, 2008, Eldred filed a pro se RCr 11.42 motion. On October 9, 2008,
Eldred filed a motion to supplement his RCr 11.42 motion. Without holding an
evidentiary hearing, the trial court entered an order on June 22, 2009, denying
Eldred’s RCr 11.42 motion. It is from this order that Eldred appeals.
STANDARD OF REVIEW
2
In Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky. 2003), the Kentucky Supreme Court
partially overruled Eldred regarding when to conduct a review of psychotherapy records.
Specifically, the Court held that an “in camera review of a witness’s psychotherapy records is
authorized only upon receipt of evidence sufficient to establish a reasonable belief that the
records contain exculpatory evidence.” The Court also concluded that the review must be
conducted by the trial judge alone. Id.
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In order to prevail on a claim of ineffective assistance of counsel, the
defendant must satisfy the two-part test set forth in Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Gall v.
Commonwealth, 702 S.W.2d 37 (Ky. 1985). Under this standard, a party asserting
such a claim is required to show: (1) that the trial counsel’s performance was
deficient in that it fell outside the range of professionally competent assistance; and
(2) that the deficiency was prejudicial because there is a reasonable probability that
the outcome would have been different but for counsel’s performance. Strickland,
466 U.S. at 687, 104 S. Ct. at 2064.
When a movant has pled guilty, the Strickland test is slightly
modified. In such instances, the second prong of the Strickland test includes the
requirement that a defendant demonstrate that, but for the alleged errors of counsel,
there is a reasonable probability that he would not have entered a guilty plea, but
rather would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Sparks v. Commonwealth, 721
S.W.2d 726, 727-28 (Ky. App. 1986).
There is no automatic entitlement to an evidentiary hearing with regard to an
RCr 11.42 motion. Rather, a hearing is required only if there is an “issue of fact
that cannot be determined on the face of the record.” RCr 11.42(5); Stanford v.
Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). Furthermore, “[w]here the
movant’s allegations are refuted on the face of the record as a whole, no
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evidentiary hearing is required.” Sparks, 721 S.W.2d at 727 (citing Hopewell v.
Commonwealth, 687 S.W.2d 153, 154 (Ky. App. 1985)).
ANALYSIS
On appeal, Eldred argues that he received ineffective assistance of
counsel because his counsel: (1) failed to inform him that Moore passed away prior
to the entry of his guilty plea; (2) mistakenly told him that the psychiatric records
of Melton and Moore would not help him in defending his case; (3) violated his
right to a speedy trial; (4) failed to investigate and prepare for trial; (5) provided
misadvice to his alibi witnesses, which caused him to plead guilty; and (6) failed to
advise him about his right to appeal. Eldred also contends that the trial court erred
in not holding an evidentiary hearing.
We note that in its order denying Eldred’s RCr 11.42 motion, the trial
court only addressed two issues raised by Eldred in his motion. Those issues were
counsel’s failure to advise Eldred about his right to appeal, and that counsel misled
him about Melton’s psychiatric records. RCr 11.42(6) provides, in pertinent part,
that
[a] final order shall not be reversed or remanded because
of the failure of the court to make a finding of fact on an
issue essential to the order unless such failure is brought
to the attention of the court by a written request for a
finding on that issue or by a motion pursuant to Civil
Rule 52.02.
Kentucky Rule of Civil Procedure (CR) 52.02 provides that, within ten days after
entry of a judgment, a party may ask the court to make additional findings of fact
and amend its judgment accordingly. “[A] trial court conducting a hearing to
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vacate sentence must make findings on all material issues of fact. Such findings
are required if there is to be meaningful appellate review . . . .” Lynch v.
Commonwealth, 610 S.W.2d 902, 905 (Ky. App. 1980) (citing Blankenship v.
Commonwealth, 554 S.W.2d 898, 903 (Ky. App. 1977)). If a party does not seek
those additional findings of fact, we cannot reverse or remand the court’s
judgment. CR 52.04; see also Vinson v. Sorrell, 136 S.W.3d 465, 471 (Ky. 2004).
Because Eldred did not file a written request asking the trial court to make
additional findings of facts on the remaining issues, we cannot reverse or remand
on those issues. Therefore, we only address the issues addressed by the trial court
in its order.
Eldred argues that he received ineffective assistance of counsel
because his counsel failed to inform him that he would not retain the right to
appeal by entering an Alford plea. However, Eldred’s claim that his trial counsel
failed to advise him of his right to appeal is refuted by the record. While the plea
hearing is not in the record on appeal, his signed Motion to Enter Guilty Plea is.
That motion specifically states that Eldred agreed that he understood that the
Constitution guarantees him the right to appeal his case to a higher court, and that
by pleading guilty, he waived that right. Thus, the trial court did not err in denying
this claim.
Next, Eldred contends that he received ineffective assistance of
counsel because his counsel mistakenly told him that the psychiatric records of
Melton and Moore were not helpful to his case. First, we note that the trial court
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only addressed Melton’s medical records. Thus, we will only address Melton’s
records. Additionally, the trial court only concluded that Eldred was aware of the
content of Melton’s psychiatric records, and it did not address Eldred’s argument
that his counsel misled him as to the usefulness of Melton’s records.
Because Eldred was present in the room when the trial court conducted an in
camera review of Melton’s records on August 13, 1996, we believe that the trial
court was correct when it determined that Eldred was aware of the content of
Melton’s psychiatric records. Even though the trial court did not address the issue
of whether Eldred’s counsel misled him about the usefulness of Melton’s records,
we believe that Eldred cannot prevail on this argument. First, Eldred has failed to
show how any of Melton’s record would be admissible. Even if they were
admissible, he failed to assert how they would be helpful to his case. It is wellestablished that a motion made pursuant to RCr 11.42 must specifically state the
grounds for relief and the facts to support those grounds. Stanford, 854 S.W.2d
742. Thus, the trial court did not err in denying this claim.
Next, we note that intertwined within many of Eldred’s claims is his
argument that he was forced to enter into the guilty plea. Having reviewed the trial
court’s order and the limited record before us, we conclude that the trial court was
correct when it rejected this assertion. Although we do not have a copy of the plea
colloquy, in its order, the trial court noted that prior to accepting the plea, Eldred
answered that he was not entering the plea under any coercion or duress.
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Additionally, Eldred signed the Motion to Enter Guilty Plea on November 22,
2005, which provides, in pertinent part, the following:
In return for my guilty plea, the Commonwealth has
agreed to recommend to the Court the sentence(s) set
forth in the attached “Commonwealth’s Offer on a Plea
of Guilty.” Other than that recommendation, no one,
including my attorney, has promised me any other benefit
in return from my guilty plea nor has anyone forced or
threatened me to plead “Guilty.”
....
I declare my plea of “GUILTY” is freely, knowingly,
intelligently and voluntarily made; that I have been
represented by counsel; that my attorney has fully
explained my constitutional rights to me as well as the
charges against me and any defenses to them; and that I
understand the nature of this proceeding and all matters
contained in this document.
Therefore, the trial court was correct when it concluded that Eldred was not forced
to plead guilty.
Finally, Eldred contends that the trial court erred by denying his motion for
an evidentiary hearing. Because the record refutes the allegations raised in
Eldred’s RCr 11.42 motion that are properly before this Court, the trial court did
not err when it denied his motion for an evidentiary hearing. See Stanford, 854
S.W.2d at 743-44.
CONCLUSION
For the foregoing reasons, the order of the Russell Circuit Court denying
Eldred’s RCr 11.42 motion is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert C. Yang
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky
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