TIMOTHY MULLINS v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: MAY 12, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001307-MR
TIMOTHY MULLINS
v.
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 95-CR-00124
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order denying
appellant’s RCr 11.42 motion on grounds that it was untimely
filed and all of the claims were refuted by the record.
While we
agree with appellant that the motion was filed in a timely
manner, we nevertheless affirm because the allegations contained
therein were refuted by the record.
On May 2, 1996, appellant, Timothy Mullins, filed a
motion to enter an unconditional guilty plea to murder, firstdegree burglary, and theft by unlawful taking.
Pursuant to a
plea agreement, the Commonwealth agreed to recommend that Mullins
be sentenced to life imprisonment without the possibility of
parole for twenty-five (25) years.
In the judgment of May 2,
1996 accepting Mullins’s guilty plea, the court stated that final
sentencing would be held on May 10, 1996.
On May 10, 1996, after
a hearing thereon, the court entered a judgment sentencing
Mullins to:
life imprisonment without the possibility of parole
for twenty-five (25) years on the murder conviction; twenty (20)
years’ imprisonment on the burglary conviction; and five (5)
years’ imprisonment on the theft conviction.
On May 10, 1999,
Mullins filed an RCr 11.42 motion claiming, among other things,
that his plea was not entered voluntarily and that he received
ineffective assistance of counsel.
On May 13, 1999, the court
denied the motion without a hearing.
In the order, the court
stated that the motion was not filed within three years after the
final judgment as required by RCr 11.42(10).
The court also went
on to state:
Further, every ground stated in support of
the motion is defeated by unequivocal matters
in the record. Accordingly, the movant is
not entitled to a hearing. Stanford v.
Commonwealth, Ky., 854 S.W.2d 742 (1993).
From this order, Mullins now appeals.
Mullins first argues that his RCr 11.42 motion was
filed in a timely manner.
We agree.
RCr 11.42(10) provides that
all motions under that rule must be filed “within three years
after the judgment becomes final. . . .”
In the present case, we
can only surmise that the court found that the motion was
untimely filed because it was not filed within three years of the
date of the guilty plea, May 2, 1996.
-2-
However, that was not the
date the judgment was final.
The judgment was not final until
the order sentencing Mullins, which was entered on May 10, 1996.
Accordingly, the court erred in finding that the motion was
untimely filed.
Mullins next argues that the case must be remanded to
the trial court for a full evidentiary hearing and review of the
claims in his RCr 11.42 motion.
We do not agree.
Although the
court did erroneously determine that the RCr 11.42 motion was
untimely filed, the court also determined that there was no merit
to the claims, as they were refuted by the record.
Thus, we need
not remand the matter to the trial court if we agree with that
portion of the trial court’s ruling.
Mullins’s first argument in his RCr 11.42 motion is
that there was no showing in the record that his guilty plea was
entered voluntarily pursuant to Boykin v. Alabama, 395 U.S. 238,
89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
Upon reviewing the
record, we see that there was ample proof that Mullins’s plea was
voluntary.
First, the motion to enter a guilty plea signed by
Mullins lists all of the rights Mullins would be giving up and
states that the defendant understands that he is giving up said
rights by pleading guilty.
The motion further states that the
plea was “freely, knowingly, intelligently and voluntarily made.”
The certificate of counsel attached to the motion confirms that
the plea was made voluntarily and that all of the defendant’s
rights had been explained to him and that he understood those
rights.
In the transcript of the guilty plea, Mullins responded
in the affirmative when asked if he was entering the plea of his
-3-
own free will and if he understood what he was doing in pleading
guilty.
Mullins also indicated he understood, that by pleading
guilty, he was giving up his right to a trial by jury, an appeal,
and his right to not incriminate himself.
During the guilty
plea, Mullins’s attorney again confirmed that he had explained
Mullins’s rights to him.
Finally, the judgment of May 2, 1996
states that Mullins understood the charges against him, that his
plea was entered knowingly and voluntarily, and that he
understood the rights he was waiving.
Mullins next argues that he was deprived of effective
assistance of counsel when his attorney failed to investigate his
case and advised him he had no defense to the charges.
To
prevail on a claim of ineffective assistance of counsel on a
guilty plea, the defendant must show that his counsel’s
performance was deficient relative to current professional
standards and that but for the deficient performance, the
defendant would not have pled guilty but would have insisted on
going to trial.
Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984); Sparks v. Commonwealth, Ky.
App., 721 S.W.2d 726 (1986).
The defendant must state the facts
underlying his claim of ineffective assistance of counsel with
specificity since he has the burden of proving said claim.
Strickland, 466 U.S. 668.
In his motion, Mullins does not state
what facts his counsel would have discovered had he adequately
investigated his case, nor does he state any defense(s) that
would have been available to him.
In our view, Mullins’s
allegations are simply too general and are refuted by the record.
-4-
Mullins’s third argument is that his sentence of life
imprisonment without the possibility of parole for twenty-five
(25) years was arbitrary and in violation of his due process and
liberty interests because the court did not make a finding on the
record of any of the aggravating circumstances in KRS 532.025.
Sentencing pursuant to KRS 532.025 is not required if all parties
are in agreement as to the sentence.
Ky., 910 S.W.2d 229, 231 (1995).
Commonwealth v. Johnson,
Here, Mullins agreed to his
sentence of life without the possibility of parole for twentyfive (25) years by entering into the plea agreement with the
Commonwealth.
Since the court accepted the Commonwealth’s
recommended sentence and sentenced Mullins according to the
agreement, Mullins cannot be heard now to complain about the
sentence.
Mullins’s final argument is that the Commonwealth
improperly failed to advise him of the penalty it would seek
prior to trial.
record.
This allegation is unequivocally refuted by the
The record contains the Commonwealth’s offer on the plea
of guilty which clearly states that the recommendations for
sentencing would be life without the possibility of parole for
twenty-five years on the murder charge, twenty (20) years on the
burglary charge and five (5) years on the theft charge, all to
run concurrently.
Since all of Mullins’s allegations were refuted by the
record, he was not entitled to an evidentiary hearing on his
motion.
Skaggs v. Commonwealth, Ky., 803 S.W.2d 573 (1990),
cert. denied, 502 U.S. 844, 112 S. Ct. 140, 116 L. Ed. 2d 106
-5-
(1991).
For the reasons stated above, the order of the Boyd
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy Mullins, Pro Se
Central City, Kentucky
A. B. Chandler, III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
