MELVIN BURROWS, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 8, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: November 22, 2002; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002684-MR
MELVIN BURROWS, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 00-CR-00558
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL,1 JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Melvin Burrows, Jr., has appealed pro se from an
order entered by the Fayette Circuit Court on November 14, 2001,
which denied his RCr2 11.42 motion to vacate his sentence.
Having concluded that the trial court did not abuse its
discretion by denying Burrows’s motion, we affirm.
1
Judge Gudgel concurred in this opinion prior to his
retirement effective November 1, 2002.
2
Kentucky Rules of Criminal Procedure.
Burrows was indicted on May 22, 2000, by a Fayette
County grand jury for rape in the first degree,3 sodomy in the
first degree,4 and being a persistent felony offender in the
first degree (PFO I)5 arising out of the sexual assault of his
wife, Sonia, occurring on March 12, 2000.
Burrows appeared with
his appointed counsel at his arraignment on May 26, 2000, and
entered a plea of not guilty.
A pre-trial conference was
originally set for June 9, 2000, rescheduled for June 28, 2000,
and then held on July 7, 2000.
On June 27, 2000, the day before a scheduled status
hearing, the trial judge received four hand-written letters
concerning Burrows’s case.
In one letter, Sonia claimed that
Burrows’s did not commit these crimes.
She claimed that they had
had consensual sex and that she had lied to the authorities
because she was angry with Burrows.
The other three letters were
from Burrows’s daughter and stepdaughters.
These letters did not
discuss Burrows’s guilt or innocence, but asked the judge for
leniency.
At the status hearing on July 7, 2000, the case was
scheduled for trial on September 19, 2000.
On September 8, 2000,
the Commonwealth filed a motion for the trial court “to determine
whether Sonia Burrows had a legitimate privilege to refuse to
testify at the trial of this case.”
The record does not include
3
Kentucky Revised Statutes (KRS) 510.040.
4
KRS 510.070.
5
KRS 532.080(3).
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an order ruling on this motion, but at a hearing on September 19,
2000, the trial judge orally ruled that Sonia would be allowed to
assert her Fifth Amendment right not to testify, but the
Commonwealth would be allowed to proceed with the prosecution of
Burrows based on Sonia’s statements which would be admitted into
evidence under the hearsay exceptions for an excited utterance
and medical treatment and that Sonia’s medical records from an
examination following the incident would also be admitted into
evidence.
On October 27, 2000, Burrows signed a waiver of further
proceedings with petition to enter plea of guilty to the amended
charge of sexual abuse in the first degree.6
On November 2,
2000, the trial court entered a judgment on guilty plea and final
sentence of imprisonment.
Burrows was sentenced to prison for a
term of one year and an additional period of conditional
discharge of three years following his release from incarceration
upon expiration of his sentence of imprisonment or from
completion of parole.
On June 15, 2001, Burrows filed a pro se RCr 11.42
motion to vacate his sentence.7
In a one-page order entered on
November 14, 2001, the trial court denied Burrows’s RCr 11.42
motion.
6
This appeal followed.
KRS 510.110.
7
The Department of Public Advocacy was appointed to
represent Burrows. However the “supplement” it filed on
September 28, 2001, stated that “[i]t appears to counsel that all
issues that could potentially be raised under an RCr 11.42
motion” have been raised.
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In Burrows’s brief, which is very difficult to
understand, he appears to have raised six issues for our
consideration: (1) he claims that the trial judge improperly
withheld exculpatory evidence from him; (2) he claims that his
trial counsel provided him with ineffective assistance of
counsel, which caused him to plead guilty; (3) he claims that he
was coerced into pleading guilty so his guilty plea was not
voluntarily, intelligently, and knowingly entered; (4) he claims
that he is being subjected to an illegal sentence; (5) he claims
he was entitled to a default judgment; and (6) he claims he was
entitled to an evidentiary hearing.
In general, the Sixth and Fourteenth Amendments to the
United States Constitution mandate that a defendant charged with
a crime receive effective assistance of counsel.8
To establish
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 as counsel
was not performing as 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.9
When an appellant challenges a
8
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).
9
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
(continued...)
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guilty plea based on ineffective counsel, he must show both that
counsel made serious errors outside the wide range of
professionally competent assistance, 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 appellant would not have pled guilty, but
would have insisted on going to trial.10
The burden is on the
movant to overcome a strong presumption that counsel’s assistance
was constitutionally sufficient.11
An allegation of ineffective
assistance of counsel does not state grounds for relief under a
RCr 11.42 motion unless the motion alleges sufficient facts to
show that counsel’s representation was inadequate.12
When a case is resolved by a plea of guilty, the guilty
plea must represent a voluntary and intelligent choice among the
alternative courses of action open to a defendant.13
The trial
court must determine that a defendant’s guilty plea is
9
(...continued)
S.W.2d 223, 226 (1986); Brewster v. Commonwealth, Ky.App., 723
S.W.2d 863, 864 (1986).
10
Hill, 474 U.S. at 58; Phon v. Commonwealth, Ky.App., 51
S.W.3d 456, 459-60 (2001); Casey v. Commonwealth, Ky.App., 994
S.W.2d 18, 22 (1999).
11
Strickland, 466 U.S. at 689; Commonwealth v. Pelphrey,
Ky., 998 S.W.2d 460, 463 (1999).
12
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).
13
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970); Centers v. Commonwealth, Ky.App., 799 S.W.2d
51, 54 (1990); Sparks v. Commonwealth, Ky.App., 721 S.W2d 726
(1986).
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intelligent and voluntary, and this determination must be put in
the record.14
The validity of a guilty plea must be determined
from considering the totality of circumstances surrounding it.15
These circumstances include the accused’s demeanor, background
and experience, and whether the record reveals that the plea was
voluntarily made.16
Solemn declarations made in open court carry
a strong presumption of verity.17
The trial court is in the best
position to determine if there was any reluctance,
misunderstanding, involuntariness, or incompetence by the
defendant in pleading guilty.18
If the record refutes the claim
of error, there is no basis for granting an evidentiary hearing
on an RCr 11.42 motion.19
An evidentiary hearing is only
required on an RCr 11.42 motion if the issues presented cannot be
fairly determined on the face of the record.20
Three of the issues raised by Burrows concern whether
his guilty plea was entered voluntarily, intelligently and
14
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 1712, 23
L.Ed.2d 274 (1969); Centers, supra; Sparks, supra at 727.
15
Commonwealth v. Crawford, Ky., 789 S.W.2d 779, 780 (1990);
Centers, supra; Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447
(1978).
16
Centers, supra; Sparks, supra; Littlefield v.
Commonwealth, Ky.App., 554 S.W.2d 872 (1977).
17
Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621,
1629, 52 L.Ed.2d 136 (1977).
18
Centers, supra (citing Blackledge, supra).
19
Glass v. Commonwealth, Ky., 474 S.W.2d 400, 401 (1971).
20
Newsome v. Commonwealth, Ky., 456 S.W.2d 686, 687 (1970).
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knowingly, to wit: (1) whether the trial judge withheld
exculpatory evidence; (2) whether his trial counsel provided
ineffective assistance; and (3) whether he was coerced into
pleading guilty.
Based on our review of the videotapes of the
hearings of record, we conclude that none of these claims has
merit.
As the trial court noted in its order denying RCr 11.42
relief, Burrows was aware that the victim stated in open court
that he was not guilty of the charges, but that the Commonwealth
chose to pursue the charges against him even with a hostile
victim.
This bare allegation by Burrows that he was denied
exculpatory evidence is clearly refuted by the record and he is
not entitled to any relief.21
In order for a movant to establish
his claim of ineffective assistance of counsel, he must produce
sufficient evidence to support his allegations.22
Burrows failed
to produce any evidence to support this claim and he was not
entitled to any relief on this claim.
Burrows also makes a general claim that he was denied
the effective assistance of counsel, but he fails to identify the
specific grounds for his claim.23
A movant “must do more than
raise doubt about the regularity of the proceedings under which
he was convicted.
He must establish convincingly that he has
been deprived of some substantial right which would justify the
21
Brown v. Commonwealth, Ky., 397 S.W.2d 160, 161 (1965).
22
King v. Commonwealth, Ky., 408 S.W.2d 204, 205 (1966).
23
Id.
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extraordinary relief afforded by this post-conviction
proceeding.”24
A court must indulge in a strong presumption that
trial counsel’s performance fell within the wide range of
reasonable professional assistance.25
Burrows has failed to
establish grounds for relief on his claim of ineffective
assistance of counsel.
The third issue raised by Burrows which is related to
his claim that his guilty plea was not properly entered is his
claim that he was coerced into pleading guilty.
Again, Burrows
has failed to provide any specific facts to support this bare
allegation.
However, we note that it is not ineffective
assistance for trial counsel to recommend a plea of guilty.
Under the original charges, Burrows could have received a life
sentence, but the amended charge he pled guilty to was only a
Class D felony and he received the minimum one-year sentence.
It
is proper for counsel to influence a defendant in accepting an
offer to plead guilty when a lighter sentence is assured.26
Burrows’s claim of ineffective assistance of counsel is without
merit.
We have reviewed the videotape of the colloquy when
Burrows entered his guilty plea.
The trial judge was very
24
Pelphrey, supra at 462 (quoting Commonwealth v. Campbell,
Ky., 415 S.W.2d 614, 616 (1967)).
25
Strickland, supra; Wilson v. Commonwealth, Ky., 836 S.W.2d
872, 878 (1992), cert denied, 507 U.S. 1034, 113 S.Ct. 1857, 123
L.Ed.2d 479 (1993).
26
Campbell, supra; Osborne v. Commonwealth, Ky.App., 992
S.W.2d 860, 864 (1999).
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thorough and patient in accepting Burrows’s guilty plea.
The
trial judge carefully asked Burrows if he was voluntarily waiving
his various constitutional rights, if he was satisfied with his
counsel, if he needed any more time, if he was under the
influence of any alcohol, drugs, or medication, and if he desired
to plead guilty.
The trial court properly determined that the
plea of guilty was entered voluntarily, intelligently and
knowingly.
Burrows additionally argues that his sentence should be
vacated because it improperly subjects him to a three-year
conditional discharge under KRS 532.043.
However, Burrows’s
reliance on Purvis v. Commonwealth,27 is misplaced since in
Purvis, the offenses occurred before July 15, 1998, the effective
date of the statute.
Burrows stands convicted of an offense
which occurred on March 12, 2000, and this conviction is clearly
subject to KRS 532.043.
Burrows also claims that the trial court erred by not
granting him a default judgment.
However, he was not entitled to
a default judgment, since the Commonwealth is not required to
file a response to a RCr 11.42 motion.28
Finally, Burrows claims that the trial court erred by
not holding an evidentiary hearing.
As previously stated, since
Burrows’s allegations were all clearly refuted by the record,
27
Ky., 14 S.W.3d 21 (2000).
28
Polsgrove v. Commonwealth, Ky., 439 S.W.2d 776, 778
(1969).
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there was no basis for an evidentiary hearing.29
An evidentiary
hearing is only required when the RCr 11.42 motion presents an
issue which cannot be fairly determined on the face of the
record.30
The trial court did not err by denying an evidentiary
hearing.31
For the foregoing reasons, the Fayette Circuit Court’s
order denying RCr 11.42 relief is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Melvin Burrows, Jr. Pro Se
Eddyville, Kentucky
Albert B. Chandler III
Attorney General
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
29
Glass, supra.
30
Newsome, supra.
31
Hopewell v. Commonwealth, Ky.App., 687 S.W.2d 153, 154
(1985).
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