GEORGE H. MYERS IV v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 22, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001621-MR
GEORGE H. MYERS IV
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
INDICTMENT NO. 97-CR-00041
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE: DYCHE and MILLER, Judges.
DYCHE, JUDGE.
George H. Myers IV appeals pro se from an order of
the Marshall Circuit Court denying his RCr 11.42 motion.
We
affirm.
In March 1997, the Marshall County Sheriff’s office was
contacted by a woman who informed them that she had information
that Myers, who lived in the same trailer park as the informant,
had been sexually molesting his seven-year-old son.
During their
initial investigation, Myers’s wife indicated that her son had
told her that Myers was sexually abusing him.
After the police
informed him of his Miranda1 rights, Myers admitted to having
abused his son.
Following his arrest and again being given his
Miranda rights, Myers consented to a taped interview in which he
confessed to having committed fellatio on his son, having his son
perform fellatio on him, sodomizing, and fondling his son.
Myers
stated that he had sexual contact with his son at least once a
week over the prior six to seven months.
During an interview
with the son, he indicated that although he could not remember
when the abuse started, his father had been sexually molesting
him at least once or twice a week for as long as he could
remember and that the number of incidents exceeded one hundred.
In April 1997, the Marshall County Grand Jury indicted
Myers on 17 counts of sexual abuse.
The first six counts charged
him with sexual abuse in the first degree (KRS 510.110)(Class D
felony) by subjecting his son to sexual contact in each of the
six months between October 1996 and March 1997.
Counts 7-13
charged him with incest (KRS 530.020)(Class C felony) by having
deviate sexual intercourse with his son between October 1996 and
March 1997.
Counts 14-17 charged him with sodomy in the first
degree (KRS 510.070)(Class A felony) by engaging in deviate
sexual intercourse with his son, who was less than 12 years old,
between October 1996 and March 1997.
On July 18, 1997, Myers
entered a guilty plea to all of the counts pursuant to a plea
agreement with the Commonwealth.
Under the agreement, the
Commonwealth recommended sentences of five years on each of the
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966).
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six counts of first-degree sexual abuse, ten years on each of the
seven counts of incest, twenty-five years on each of the four
counts of first-degree sodomy, all to run concurrently for a
total sentence of twenty-five years.
The trial court sentenced
appellant in October 1997, to serve twenty-five years in prison
consistent with the recommendation of the Commonwealth.
In November 1998, Myers filed an RCr 11.42 motion
seeking to vacate his sentence based on several grounds including
ineffective assistance of counsel, an unconstitutionally obtained
confession, an illegal sentence, and double jeopardy.
Myers also
filed motions requesting an evidentiary hearing and appointment
of counsel.
After the Commonwealth filed a response, the trial
court entered an order on May 18, 1999, denying the RCr 11.42
motion on all grounds except for the issue of ineffective
assistance for counsel’s failure to request a hearing on and
suppression of Myers’s confession.
The court ordered appointment
of counsel and scheduled a hearing on the remaining issue for
June 21, 1999.
1999.
The hearing later was rescheduled for June 7,
On that day, the court actually appointed counsel for
Myers and conducted a hearing at which appellant’s trial counsel
testified and explained his reasons for not moving to suppress
the confession.
On June 10, 1999, the trial court denied the RCr
11.42 motion as to the remaining issue of ineffective assistance
of counsel finding that counsel had provided competent
assistance.
Myers filed a motion to reconsider on the grounds
that moving the evidentiary hearing from June 21 to June 7
prevented him and counsel from preparing adequately for the
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hearing.
On June 23, 1999, the trial court denied the motion to
reconsider noting appellant’s failure to object to the
rescheduling at the hearing.
On June 30, 1999, Myers filed a motion to vacate or set
aside the judgment and sentence pursuant to CR 60.02(f) on the
basis that the sentence exceeded the statutory limit for his
conviction.
There is no indication in the record that the
circuit court has ruled on this motion.
Meanwhile, Myers filed a
notice appealing the trial court’s denial of his RCr 11.42
motion.
Myers raises several issues on appeal including
ineffective assistance of counsel, double jeopardy, the legality
of the length of the sentence, and the fairness of the
evidentiary hearing given its having been held earlier than
originally scheduled.
We address first Myers’s claim that his conviction for
sexual abuse, incest, and sodomy involving the same time period
constitutes a violation of the double jeopardy clause of the
federal and state constitutions.
He contends that under the
Blockburger analysis, his conviction on all three offenses for
the same act violates double jeopardy.
In Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1997),
cert. denied sub nom. Effinger v. Kentucky, 522 U.S. 971, 118
S.Ct. 422, 139 L.Ed.2d 323 (1997), the Kentucky Supreme Court
adopted the “same elements” test enunciated in Blockburger v.
United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),
for determining a violation of the double jeopardy clause.
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In
Burge the court abandoned the “single impulse” test previously
adopted in Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990),
and stated that the Blockburger analysis involves a determination
of “whether the act or transaction complained of constitutes a
violation of two distinct statutes and, if it does, if each
statute requires proof of a fact the other does not.”
947 S.W.2d
at 811.
In the present case, the elements of first-degree
sodomy involved (1) deviate sexual intercourse (2) with a person
less than twelve years old.
KRS 510.070.
The elements of incest
involved (1) deviate sexual intercourse (2) with a person the
defendant knows to be a descendant.
KRS 530.020.
The elements
of first-degree sexual abuse involved (1) sexual contact (2) with
a person less than twelve years old.
KRS 510.110.
The evidence
against Myers included incidents of anal intercourse, sodomy
performed both on Myers and on the child, and fondling performed
both on Myers and on the child.
Sodomy requires deviate sexual
intercourse not necessary for sexual abuse and a victim under
twelve-years old not necessary for incest.
Incest requires
deviate sexual intercourse not necessary for sexual abuse and a
victim who is a blood relative not necessary for sodomy or sexual
abuse.
While first-degree sexual abuse requires a victim less
than twelve-years old not necessary to incest, it may constitute
a lesser-included offense of sodomy when the same act is
involved.
However, in this case, the sexual abuse offenses
clearly were intended to apply to the fondling incidents, so they
would involve different factual elements from the incidents of
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sodomy.
See, e.g., Gray v. Commonwealth, Ky., 979 S.W.2d 454
(1998)(no double jeopardy violation in conviction on two counts
of trafficking in cocaine involving two sales occurring on same
day 17 minutes apart).
Myers’s reliance on Hamilton v.
Commonwealth, Ky., 659 S.W.2d 201 (1983), and Denny v.
Commonwealth, Ky., 670 S.W.2d 847 (1984), is misplaced because
those cases were overruled in Burge.
947 S.W.2d at 811.
In addition, to the extent that several of Myers’s
convictions included multiple counts involving the same statute,
the traditional Blockburger test was not designed to handle that
situation.
The proper analysis in that situation involves
whether the incidents supporting the individual counts are
discrete, completed offenses constituting more than a single act.
For instance, in Commonwealth v. Bass, Ky., 777 S.W.2d 916
(1989), the Court upheld convictions on sixteen counts of the
same medicare fraud statute.
The Court stated “the test is
whether individual acts are prohibited or the course of action
and conduct which they constitute.”
Id. at 918.
Similarly, in
Van Dyke v. Commonwealth, Ky., 581 S.W.2d 563 (1979), the Court
affirmed defendant’s convictions on two counts of rape for two
incidents occurring fifteen minutes apart.
The Court stated,
“The fact that the acts occurred in a brief period of time with
the same victim and in a continuum of force does not protect Van
Dyke from prosecution and conviction of each separate offense.”
Id. at 564.
See also Hampton v. Commonwealth, Ky., 666 S.W.2d
737 (1984)(involving multiple convictions for first-degree sexual
abuse of same victim over two month period).
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Myers’s assertion that he was engaged in a single
course of conduct that precluded multiple convictions for the
same or different statutes is without merit.
There was evidence
from the victim that he had been abused on numerous occasions
once or twice a week over an extended time period.
Myers
admitted to having had sexual relations with his son at least
once a week over a seven month period.
The fact that the
indictment alleged the offenses occurred over the same six month
time period does not affect the validity of the indictment or the
convictions.
Myers has failed to demonstrate any violation of
double jeopardy.
Myers argues on appeal that his twenty-five year
sentence exceeds the statutory limit.
Although this issue was
more clearly presented in his CR 60.02 motion which the circuit
court has not ruled on and is not the subject of the current
appeal, we note that it is clearly without merit.
He asserts
that under KRS 532.110(1)(c) the maximum sentence he should have
received was twenty years because first-degree sodomy is a Class
B felony.
First-degree sodomy is a Class A felony, punishable by
twenty years to life in prison.
Under KRS 532.110(c) and KRS
532.080, the maximum sentence for a Class A felony (or a Class B
felony) at the time of Myers’s conviction was twenty years to
life.
See Commonwealth v. Durham, Ky., 908 S.W.2d 119 (1995).
Myers’s sentence did not exceed the statutory limit.
The major portion of Myers’s RCr 11.42 motion concerns
his claim of ineffective assistance of counsel.
In order to
establish ineffective assistance of counsel, a defendant must
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satisfy a two-part showing both that counsel’s performance was
deficient, and that the deficiency resulted in actual prejudice
affecting the outcome of the proceeding.
Strickland v.
Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
Harper v. Commonwealth, Ky., 978 S.W.2d 311, 314 (1998), cert.
denied, 526 U.S. 1056, 119 S.Ct. 1367, 143 L.Ed.2d 527 (1999).
The defendant bears the burden of establishing ineffective
assistance.
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066;
Bowling v. Commonwealth, Ky., 981 S.W.2d 545, 551 (1998), cert.
denied, 527 U.S. 1026; 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999).
When a defendant challenges a guilty plea based on ineffective
assistance of 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.
1441, 1449, 25 L.Ed.2d 763, 773 (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. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985);
Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 316 (1994).
A
court must be highly deferential in scrutinizing counsel’s
performance and avoid second-guessing counsel’s actions based on
the benefit of hindsight.
Harper, 978 S.W.2d at 315; Wilson v.
Commonwealth, Ky., 836 S.W.2d 872, 879 (1992), cert. denied, 507
U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993); Russell v.
Commonwealth, Ky. App., 992 S.W.2d 871, 875 (1999).
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There is a
strong presumption that counsel’s conduct fell within the wide
range of reasonable assistance that the defendant must overcome.
Strickland, 478 U.S. at 689, 104 S.Ct. at 2065; Bowling, 981
S.W.2d at 551.
In measuring prejudice, the relevant inquiry is
whether “there is a reasonable probability, that but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.
A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
See also Moore
v. Commonwealth, Ky., 983 S.W.2d 479, 488 (1998), cert. denied,
__ U.S.__, 120 S.Ct. 110, 143 L.Ed.2d 93 (1999).
“‘A defendant
is not guaranteed errorless counsel, or counsel adjudged
ineffective by hindsight, but counsel reasonably likely to render
and rendering reasonably effective assistance.’”
Sanborn v.
Commonwealth, Ky., 975 S.W.2d 905, 911 (quoting McQueen v.
Commonwealth, Ky., 949 S.W.2d 70 (1997)).
Myers presents several challenges to his trial
counsel’s performance.
He argues that counsel’s performance was
ineffective for the following reasons: (1) failure to
investigate; (2) failure to move to suppress appellant’s
confession; (3) advising appellant to plead guilty to a sentence
that exceeded the statutory limit; and (4) failure to challenge
the indictment based on double jeopardy.
Myers states that counsel misadvised him to plead
guilty to a life sentence.
five year sentence.
In fact, he pled guilty to a twenty-
As discussed earlier, Myers was subject to a
potential sentence of twenty years to life on the offenses, so
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counsel’s advice that he faced a possible life sentence was
accurate.
Similarly, Myers’s belief that his convictions for the
multiple counts of the indictment violated double jeopardy is
erroneous.
counts.
There was sufficient evidence to support the various
Consequently, counsel’s performance was neither
deficient nor prejudicial with respect to his advice on the
potential sentences and his failure to raise a double jeopardy
challenge.
Myers also argues that trial counsel was
constitutionally ineffective for failing to conduct a reasonable
investigation of the case.
He claims that counsel did not
interview a physician treating him prior to commission of the
offenses and did not investigate the medication that he was
taking at the time of his confession.
Myers’s allegations are
simply too vague to establish ineffective assistance of counsel.
He does not identify how any information counsel may have
discovered would have substantially affected the guilty plea
process.
Myers also contends that trial counsel was ineffective
for failing to attempt to suppress his confession.2
At the
evidentiary hearing on this issue, counsel testified that he was
2
To the extent Myers’s RCr 11.42 motion seeks reversal based
on a violation of his Miranda rights, he waived any claim based
on that ground by entering a guilty plea. See, e.g., Tollett v.
Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235
(1973)(guilty plea waives all constitutional violations occurring
prior to entry of plea); United States v. Galbraith, 200 F.3d
1006 (7th Cir. 2000)(guilty plea waives challenge to denial of
motion to suppress statements made to police during search);
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51 (1990)(guilty
plea waives all claims to deprivation of constitutional rights
occurring before entry of the guilty plea).
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fully aware of the circumstances surrounding the confession.
Counsel also testified that Myers decided to plead guilty after
he told appellant that, even if his confession was suppressed,
the child victim would testify at a trial about the various
incidents of sexual abuse and that the prosecution could use the
statements he made during the police interview for impeachment
purposes should Myers attempt to testify at a trial and could
continue to proceed with a trial.
In addition, Myers admits that
he received a Miranda warning both prior to the initial
questioning by the police and prior to the taped confession.
The
fact that the police may have told him that they wanted to help
him and that he was not under arrest prior to the initial
questioning did not render the confession constitutionally
invalid.
See, e.g., Springer v. Commonwealth, Ky., 998 S.W.2d
439 (1999)(employment of ruse or “strategic deception” by police
does not render confession involuntary unless the ploy rises to
the level of compulsion or coercion).
Myers has not
demonstrated that counsel was deficient in not challenging the
confession or that there is a reasonable probability that a
motion to suppress the confession would have been successful and
would have affected his decision to plead guilty.
Myers also alleges that his attorney on the RCr 11.42
motion was ineffective for failing to seek a change of venue
because the prosecutor was prejudiced and biased against him.
He
points to comments by the prosecutor during the hearing that upon
a retrial he would ask the jury to sentence Myers to four
consecutive life sentences.
The trial judge was the relevant
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audience on the RCr 11.42 motion.
judge was biased.
There is no evidence that the
Any alleged animosity of the prosecutor toward
Myers is irrelevant.
a change of venue.
Counsel was not ineffective for not seeking
In addition, Myers has not shown that the
rescheduling of the RCr 11.42 hearing prejudiced him or adversely
affected counsel’s performance during the hearing.
He should
have raised this issue at the hearing and sought a continuance.
We affirm the order of the Marshall Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
George H. Myers IV - Pro Se
Eddyville, Kentucky
Albert B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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