MORRIS DUNCAN, SR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 7, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001417-MR
MORRIS DUNCAN, SR.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE T. STEVEN BLAND, JUDGE
ACTION NO. 98-CR-00001 AND 98-CR-00188
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Morris Duncan, pro se, has appealed from an
order entered by the Hardin Circuit Court on June 1, 2000, which
denied his RCr1 11.42 motion to vacate, set aside, or correct his
sentence.
Having concluded that Duncan has waived his right to
contest subject-matter jurisdiction and that Duncan did not
receive ineffective assistance of counsel, we affirm.
On November 24, 1997, three assailants broke into the
Hardin County home of James Willian and Virginia Williams.
assailants were armed with a handgun and a knife.
1
Kentucky Rules of Criminal Procedure.
The
In the course
of robbing Willian and Williams, the assailants stabbed both
victims.
Willian was killed and Williams was critically injured.
On June 27, 1998, the Hardin County grand jury indicted
Duncan, and co-defendants Thomas Eugene Stewart and Aaron L.
Camp, for complicity to commit capital murder,2 complicity to
commit burglary in the first-degree,3 complicity to commit
robbery in the first-degree,4 and complicity to commit assault in
the first-degree.5
Subsequently, Duncan was also indicted for
criminal mischief in the first-degree6 for allegedly causing
$1,000.00 in damage to his Hardin County jail cell.
On May 3,
1999, Duncan entered into a plea agreement with the Commonwealth.
In exchange for his guilty plea, the Commonwealth agreed to amend
the felony charge of criminal mischief in the first-degree to the
misdemeanor charge of attempt to commit criminal mischief.
The
Commonwealth also agreed to recommend a 40-year prison sentence
for complicity to the murder of Willian; 20-year prison sentences
for each charge of burglary in the first-degree, robbery in the
first-degree and assault in the first-degree; a 12-month jail
sentence for the criminal mischief charge, with all sentences to
run concurrently.
After assessing Duncan’s competency and
apprizing him of his rights, the Hardin Circuit Court accepted
2
Kentucky Revised Statutes (KRS) 502.020 and KRS 507.020.
3
KRS 502.020 and KRS 511.020.
4
KRS 502.020 and KRS 515.020.
5
KRS 502.020 and KRS 508.010.
6
KRS 512.020.
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the guilty plea and entered a sentence in accordance with the
Commonwealth’s recommendations.
On May 9, 2000, Duncan filed a pro se motion pursuant
to RCr 11.42, alleging that his trial counsel rendered
ineffective assistance of counsel.
Particularly, Duncan
contended that his attorney’s advice for him to accept the
Commonwealth’s proposed plea agreement was deficient because the
Commonwealth failed to obtain a murder conviction against his codefendant, Stewart.
Since Stewart was convicted of manslaughter
in the second-degree,7
Duncan argued that he could not have been
convicted as an accomplice to capital murder.
Without holding an
evidentiary hearing, the Hardin Circuit Court entered an order on
June 1, 2000, denying Ducan’s RCr 11.42 motion.
This appeal
followed.
On appeal Duncan argues, for the first time, that the
Hardin Circuit Court never acquired subject-matter jurisdiction
over his motion because he failed to “verify” it as required by
the plain language of the rule.8
We disagree.
We believe that
Duncan’s substantial compliance with the mandates of RCr 11.42
7
KRS 507.040. Duncan’s other co-defendant, Camp, also
pleaded guilty to complicity to murder.
8
RCr 11.42(2) states that:
The motion shall be signed and verified by
the movant and shall state specifically the
grounds on which the sentence is being
challenged and the facts on which the movant
relies in support of such grounds. Failure
to comply with this section shall warrant a
summary dismissal of the motion [emphasis
added].
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was sufficient to invoke the jurisdiction of the circuit court.9
We further believe that Duncan’s failure to bring the issue of
lack of proper verification to the attention of the trial court
constitutes a waiver of the defect.
While, as a general proposition, subject-matter
jurisdiction cannot be waived,10 this principle is not absolute.
In Duncan v. O’Nan,11 the Court distinguished the cases in which
jurisdictional defects could be waived and those in which it
could not, by stating:
"[T]he rule that subject-matter jurisdiction
cannot be born of waiver, consent or estoppel
has to do with those cases only where the
court has not been given any power to do
anything at all in such a case, as where a
tribunal vested with civil competence
attempts to convict a citizen of a crime. In
other words, ‘subject matter’ does not mean
‘this case’ but ‘this kind of case’. . . ."12
Since the Hardin Circuit Court clearly has jurisdiction over RCr
11.42 motions arising out of criminal convictions in that
circuit, we hold that Duncan’s failure to verify his motion does
not rise to the level of a jurisdictional defect, which could not
be waived by him.13
9
Cleaver v. Commonwealth, Ky., 569 S.W.2d 166, 169 (1978).
10
Commonwealth, Department of Highways v. Berryman, Ky., 363
S.W.2d 525, 526 (1962).
11
Ky., 451 S.W.2d 626, 631 (1970).
12
Id. (quoting In Re Estate of Rougeron, 17 N.Y.2d 264, 271,
270 N.Y.S.2d 578, 583, 217 N.E.2d 639, 643 (1966)).
13
See id. (holding that where a district court’s judgment
had not been signed in a will contest, the contestant had waived
the jurisdictional defect by failing to inform the circuit
court).
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Duncan also contends that the trial court abused its
discretion when it rejected his claim of ineffective assistance
of counsel.
In general, the Sixth and Fourteenth Amendments to
the United States Constitution mandate that a defendant in a
criminal case receive effective assistance of counsel.14
To
prove counsel’s ineffectiveness, a movant must show (1) that
counsel made errors so serious that counsel’s performance fell
outside the wide range of professionally-competent assistance
guaranteed by the Sixth Amendment, and (2) that the deficient
performance prejudiced the defense so seriously that it affected
the process whereby the end result would have been different.15
For a motion alleging ineffective assistance of counsel to state
sufficient grounds for relief under RCr 11.42, the motion must
allege sufficient facts to show that counsel’s representation was
inadequate.16
If the record refutes the claim of error, there is
no basis for granting an evidentiary hearing on an RCr 11.42
motion.17
An evidentiary hearing is not required in an RCr 11.42
14
United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37
L.Ed.2d 619 (1973); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55,
77 L.Ed. 158 (1932); Hopewell v. Commonwealth, Ky.App., 687
S.W.2d 153, 154 (1985).
15
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366,
88 L.Ed.2d 203 (1985); Taylor v. Commonwealth, Ky.App., 724
S.W.2d 223, 226 (1986); Brewster v. Commonwealth, Ky.App., 723
S.W.2d 863, 864 (1986).
16
Thomas v. Commonwealth, Ky., 459 S.W.2d 72 (1970); Evans
v. Commonwealth, Ky., 453 S.W.2d 601 (1970); McCarthy v.
Commonwealth, Ky., 432 S.W.2d 50 (1968).
17
Glass v. Commonwealth, Ky., 474 S.W.2d 400, 401 (1971).
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case where the issue presented can be fairly determined on the
face of the record.18
After a thorough review of the record, we hold that
Duncan’s claim of ineffective assistance of counsel is without
merit.
Duncan claims that his counsel was ineffective because
his attorney advised him to plead guilty to the amended charges
as recommended by the Commonwealth, even though one of his
accomplices was adjudged guilty of manslaughter instead of
murder.
Duncan is apparently under the erroneous belief that his
accomplice’s acquittal of murder renders him innocent of the
charge as an aider and abettor.
In Kentucky, a defendant may be convicted on a separate
trial of aiding and abetting the principal in the commission of a
crime after the principal has been acquitted.19
For it is
evident that different juries may reach different conclusions as
to the guilt of the principal.20
Therefore, had Duncan proceeded
to trial on the charge of complicity to commit capital murder, he
could have been convicted and potentially sentenced to death or
life in prison, regardless of the outcome of his co-defendant
Stewart’s trial.
Duncan's claim of ineffective assistance of
counsel is refuted on the face of the record and an evidentiary
hearing was not required.
Duncan’s final claim on appeal is that he received
ineffective assistance of counsel because his lawyer “failed to
18
Newsome v. Commonwealth, Ky., 456 S.W.2d 686, 687 (1970).
19
Gambrel v. Commonwealth, 283 Ky. 816, 820, 143 S.W.2d 514,
516 (1940).
20
Id.
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investigate the circumstances surrounding the charges and failed
to effectively advise [him] on . . . defenses readily available
to counter the Commonwealth’s case.”
However, in his motion to
enter a guilty plea, which Duncan signed and acknowledged, Duncan
stated that he had “reviewed a copy of the indictment and told
[his] attorney all the facts known to [him] concerning [his]
charges.”
Duncan further stated that he believed his attorney
was “fully informed about his case” and that he and his attorney
had “fully discussed [his] charges and any possible defenses to
them.”
We note that such solemn declarations in open court carry
a strong presumption of verity.21
We also note that Duncan’s
bare allegations of ineffective assistance of counsel, which are
unsupported by specific facts, do not warrant an evidentiary
hearing.22
For the foregoing reasons, the order of the Hardin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Morris Duncan, Sr., Pro Se
Burgin, Kentucky
Albert B. Chandler, III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
21
Centers v. Commonwealth, Ky.App., 799 S.W.2d 51, 54
(1990).
22
See Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909
(1998)(holding that conclusionary allegations which are not
supported by specific facts do not justify an evidentiary hearing
because RCr 11.42 does not require a hearing to serve the
function of a discovery deposition).
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