MICHAEL COLLINS v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002581-MR
MICHAEL COLLINS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
INDICTMENT NO. 95-CR-00488
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Michael Collins appeals from an order of the
Fayette Circuit Court denying his motion to vacate, alter, amend
or correct sentence brought pursuant to RCr 11.42.
After
reviewing the record, we affirm.
In February 1995, Detective Joseph Hess of the
Lexington Police Department received information that Collins had
been involved in several acts of sexual contact with C.J., his
eleven-year-old niece.
When Detective Hess interviewed him about
the allegations, Collins admitted that on one occasion he rubbed
his penis against the victim’s vagina but denied any penetration,
and on another occasion he fondled the victim with digital
penetration of her vagina.
A medical examination of C.J.
indicated evidence of blunt force trauma to her hymenal tissue.
Based on his investigation, the Fayette County Grand Jury
indicted Collins in May 1995 on one felony count of first-degree
rape (KRS 510.040) and two felony counts of first-degree sexual
abuse (KRS 510.110) involving incidents occurring in 1994.
Shortly after Collins’s arraignment, his attorney, with
agreement by the prosecution, moved for a mental health
evaluation.
In June 1995, the circuit court ordered Collins to
be evaluated by Dr. Harwell Smith, a licensed clinical
psychologist, on an out-patient basis.
In conjunction with this
examination, Collins consented to release of his prior mental and
physical medical records.
In August 1995, Dr. Smith filed a
report with the court in which he stated that Collins had below
average intelligence but was not mentally retarded.
He also
indicated that Collins suffered from chronic schizophrenia.
Nonetheless, Dr. Smith stated that Collins was competent to stand
trial and that he had the mental capacity to appreciate the
nature of the charges against him.
Dr. Smith, however, was
unable to say to a reasonable psychological certainty whether
Collins lacked the substantial capacity to conform his behavior
to the requirements of the law at the time he committed the
offenses.
Given Dr. Smith’s equivocal opinion on Collins’s mental
status at the time of the offense, the Commonwealth requested
further psychological testing of Collins by physicians at the
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Kentucky Correctional Psychiatric Center (KCPC).
Dr. Frank
Deland, a staff psychiatrist at KCPC, evaluated Collins and filed
a report in November 1995.
Dr. Deland indicated that Collins
suffered from a chronic schizoaffective disorder best described
as a combination of schizophrenia and a mood disorder.
He agreed
with Dr. Smith that Collins was competent to stand trial, but
also concluded that he believed Collins was criminally
responsible for his conduct with C.J.
Although Dr. Deland found
that Collins suffered from a severe mental illness which may have
been exacerbated during the times he committed the offenses, he
concluded that Collins did not lack the capacity to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of the law.
On November 17, 1995, Collins entered a plea of guilty
but mentally ill to an amended charge of second-degree rape and
one count of first-degree sexual abuse pursuant to a plea
agreement.
The Commonwealth moved to dismiss one count of first-
degree sexual abuse and recommended sentences of ten (10) years
on rape and five (5) years on sexual abuse.
During the guilty
plea hearing, the trial court queried Collins about his mental
illness and his ability to understand the proceeding.
At that
time, Collins offered a cogent description of the facts
supporting the charges.
In January 1996, the trial court
sentenced Collins to ten (10) years on second-degree rape and
five (5) years on first-degree sexual abuse to run concurrently
for a total sentence of ten (10) years.
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On March 24, 1998, Collins filed a motion to vacate the
judgment and sentence pursuant to RCr 11.42 and requested a
hearing.
In the motion, Collins alleged that he was denied
effective assistance of counsel because his attorney failed to
adequately investigate and inform him of the defense of extreme
emotional disturbance.
He stated that if he had gone to trial,
there was a reasonable probability the jury would have acquitted
him by reason of insanity.
opposing the motion.
The Commonwealth filed a response
The trial court denied the motion without a
hearing on the basis that the defense of extreme emotional
disturbance is not available for rape and sexual abuse.
This
appeal followed.
On appeal, Collins argues that the circuit court erred
by denying his motion without a hearing and by finding defense
counsel provided adequate assistance.
He contends that counsel
failed to adequately investigate and inform him of the possible
defenses of extreme emotional disturbance and insanity prior to
advising him to plead guilty.
Collins asserts that if he had
received information on these defenses, he would not have pled
guilty, but would have insisted on going to trial.
He contends
that there was a reasonable probability that a jury would have
found him not guilty by reason of insanity based on the testimony
of his treating and evaluating psychiatrists that he was
psychotic during the time of the offenses.
For the reasons that
follow, we disagree with all of Collins assertions.
RCr 11.42 provides persons in custody under sentence a
procedure for raising collateral challenges to the judgments
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entered against them.
A movant, however, is not automatically
entitled to an evidentiary hearing on the motion.
Wilson v.
Commonwealth, Ky., 975 S.W.2d 901, 904 (1998), cert. denied, ___
U.S. ___, 119 S. Ct. 1263, 143 L. Ed. 2d 359 (1999).
An
evidentiary hearing is not required on a RCr 11.42 motion where
the issues raised in the motion are refuted on the record, or
where the allegations, even if true, would not be sufficient to
invalidate the conviction.
Harper v. Commonwealth, Ky., 978
S.W.2d 311, 314 (1998), cert. denied, ___ U.S. ___, 119 S. Ct.
1367, 143 L. Ed. 2d 527 (1999); Sanborn v. Commonwealth, Ky., 975
S.W.2d 905, 909 (1998), cert. denied, ___ U.S. ___, 119 S. Ct.
1266, 143 L. Ed. 2d 361 (1999).
A guilty plea may be rendered invalid if the defendant
received constitutionally ineffective assistance of counsel.
Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 80 L. Ed. 2d 203
(1985); Osborne v. Commonwealth, Ky. App., 992 S.W.2d 860 (1998).
In order to establish ineffective assistance of counsel, a person
must satisfy a two-part test showing that counsel’s performance
was deficient and that the deficiency caused actual prejudice
affecting the outcome of the proceeding.
Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985),
cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724
(1986).
Where an appellant challenges a guilty plea based on
ineffective counsel, he must show both that counsel made serious
errors outside the wide range of professionally competent
assistance, McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct.
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1441, 1449, 25 L. Ed. 2d 763 (1970), and that the deficient
performance so seriously affected the outcome of the plea process
that, but for the errors of counsel, there is a reasonable
probability that the defendant would not have pled guilty, but
would have insisted on going to trial.
Hill v. Lockhart, 474
U.S. at 58, 106 S. Ct. at 370; Russell v. Commonwealth, Ky. App.,
992 S.W.2d 871 (1999).
The burden is on the movant to overcome a
strong presumption that counsel’s assistance was constitutionally
sufficient.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065;
Moore v. Commonwealth, Ky., 983 S.W.2d 479, 482 (1998).
A court
must be highly deferential in reviewing defense counsel’s
performance and should avoid second-guessing counsel’s actions
based on hindsight.
Harper, 978 S.W.2d at 315; Russell, 992
S.W.2d at 875.
In the case at bar, Collins’s argument that his
attorney failed to adequately investigate and inform him of the
defenses of extreme emotional disturbance and insanity is without
merit.
The defense of extreme emotional disturbance can be
utilized to mitigate the severity of punishment in a prosecution
for the offenses of murder (KRS 507.020(a)) and assault (KRS
508.040).
Proof of extreme emotional disturbance does not
exonerate or relieve a defendant of criminal responsibility, it
merely acts to reduce the degree and resulting penalty range of
the offense.
McClellan v. Commonwealth, Ky., 715 S.W.2d 464,
467-69 (1986), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L.
Ed. 2d 986 (1987).
As the commentary to the assault under
extreme emotional disturbance statute, KRS 508.040, states:
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The purpose of this statute is to provide
the same type of mitigating, degree-reducing
factor in the law of assault as exists in the
law of homicide. It affects only
intentionally-caused assaults and then only
to the extent of reducing the sanctions.
Collins was indicted for rape and sexual abuse.
He has
presented and this Court has found no statutory or case law
extending the defense of extreme emotional disturbance to the
offenses for which Collins was indicted and to which he pled
guilty.
As a result, Collins has not shown that counsel’s
failure to advise him on the defense of extreme emotional
disturbance constituted either deficient performance or actual
prejudice.
Collins also argues on appeal that his attorney failed
to adequately advise him of a possible insanity defense.
It
appears that the trial court did not address this issue because
Collins’s initial RCr 11.42 motion emphasizes his complaint about
the extreme emotional disturbance defense and only tangentially
mentions the insanity claim.
Nevertheless, we believe that this
complaint also lacks merit.
In support of his claim, Collins alleges that “[i]n a
report from [a] Staff Psychiatrist of KCPC, it was determined
that the Appellant was not competent to stand trial and that the
Appellant was diagnosed as being mentally ill and/or insane at
the time of the alleged offenses.”
In fact, Dr. Deland, the
staff psychiatrist at KCPC who evaluated Collins, stated just the
opposite in his report.
He opined that Collins was competent to
stand trial and was not insane at the time he committed the
offenses.
Dr. Deland indicated that Collins exhibited signs of
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volitional control when sexually abusing his niece, and that
Collins was intelligent enough to understand the law or
criminality of his actions.
Dr. Deland specifically stated that
although Collins suffered from a severe mental illness, “there
was substantial evidence to indicate that he did not lack
substantial capacity to appreciate the criminality of his conduct
or conform his conduct to the requirements of the law.”
See KRS
504.020.
Collins also asserts that his attorney should have
obtained the psychiatric records for his treatment by government
psychiatrists after 1979.
He contends that counsel should have
personally contacted those physicians to discuss his
psychological condition for purposes of advising him on possible
criminal defenses.
Insanity absolves a person of criminal intent and
therefore represents a complete defense to an intentional
criminal offense.
On the other hand, mental illness, which is
defined as a substantially impaired capacity to use self-control,
judgment, or discretion in the conduct of one’s affairs and
social relations related to physiological, psychological or
social factors, does not absolve a person of criminal
responsibility, but rather entitles one suffering from a mental
illness who is convicted of a crime to treatment so long as he
remains mentally ill or until the expiration of his sentence.
KRS 504.150; McClellan, supra.
The record indicates that defense counsel was aware of
Collins’ psychological history.
The evaluations by Dr. Smith and
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Dr. Deland both recognized that Collins suffered from a chronic
mental illness, but neither concluded that he was insane at the
time of the offenses.
Collins has not shown that his attorney
would have discovered any additional relevant or beneficial
information by personally contacting Collins’s previous treating
physicians.
Defense counsel’s advice to Collins to enter a plea
of guilty but mentally ill was not deficient and was supported by
the medical records.
Collins also has not demonstrated actual prejudice in
that there is not a reasonable probability that even had he been
differently advised, he would have risked a trial based on his
alleged insanity defense, rather than pleading guilty as he did.
The medical evidence was equivocal at best, and Dr. Deland
specifically stated that he did not believe Collins was insane at
the time of the offenses.
Furthermore, under the plea agreement,
the Commonwealth dismissed one of the two counts of first-degree
sexual abuse, amended the first-degree rape charge to the lesser
offense of second-degree rape, and recommended sentences of ten
(10) years and five (5) years for rape and sexual abuse,
respectively.
Collins faced a possible minimum sentence of
twenty (20) years had he been convicted of first-degree rape
alone.
In conclusion, Collins has failed to establish that his
attorney’s performance was deficient.
There is no reasonable
probability, moreover, had Collins received the advice he claims
was due, that, he would have insisted on going to trial rather
than plead guilty but mentally ill.
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We believe the trial court
did not err in denying Collins’s RCr 11.42 motion without a
hearing because the record refutes his claim of ineffective
assistance of counsel.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Collins, Pro Se
LaGrange, Kentucky
A. B. Chandler III
Attorney General
Frankfort, Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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