DONALD LEE RUCKER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
August 22, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000594-MR
DONALD LEE RUCKER
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 95-CR-00275-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND KNOPF, JUDGES; AND MILLER, SENIOR JUDGE.1
JOHNSON, JUDGE:
Donald Lee Rucker, pro se, has appealed from an
order entered by the McCracken Circuit Court on March 12, 2002,
which denied his motion for leave to file a second RCr2 11.42
motion and a motion to vacate, correct or set aside his
conviction pursuant to RCr 10.26, RCr 11.42, CR3 60.02(f), and CR
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Kentucky Rules of Criminal Procedure.
3
Kentucky Rules of Civil Procedure.
60.03.
Having concluded that the trial court properly denied
Rucker’s motions, we affirm.
On September 20, 1996, Rucker was convicted by a jury
of trafficking in marijuana over five pounds,4 wanton
endangerment in the first degree,5 attempting to elude,6 leaving
the scene of an accident,7 and being a persistent felony offender
in the first degree (PFO).8
On September 23, 1996, the McCracken
Circuit Court sentenced Rucker to prison terms totaling 15
years.9
Rucker’s convictions were affirmed by this Court on his
direct appeal.10
On March 25, 1999, Rucker filed a motion to vacate
judgment pursuant to RCr 11.42 alleging that he received
ineffective assistance of counsel.
On April 26, 1999, the
McCracken Circuit Court entered an order denying Rucker’s motion
without holding an evidentiary hearing.
Rucker appealed the
trial court’s order and on February 18, 2000, this Court
rendered an Opinion affirming the judgment of the McCracken
4
Kentucky Revised Statutes (KRS) 218A.1421.
5
KRS 508.060.
6
KRS 189.393.
7
KRS 189.580.
8
KRS 532.080(3).
9
On September 25, 1996, and October 11, 1996, the sentencing judgment was
amended due to clerical errors.
10
1996-CA-002690-MR rendered December 24, 1997, not to be published.
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Circuit Court.11
On February 25, 2002, Rucker filed a motion for
leave to file a second RCr 11.42 motion and a motion to vacate,
correct or set aside his conviction and sentence pursuant to RCr
10.26, RCr 11.42, CR 60.02(f), and CR 60.03. The trial court
denied Rucker’s motions on March 12, 2002.
This appeal
followed.
The events leading up to Rucker’s convictions began in
June 1995 when James Rupke, through his counsel, contacted the
McCracken County Sheriff’s Department.
Rupke was the subject of
an arrest warrant arising out of a drug investigation in
McCracken County.
He contacted the Sheriff’s Department and
told the officers of his willingness to cooperate in a drug
investigation concerning Rucker.
On August 22, 1995, Rupke
appeared at the Sheriff’s Department with a green duffle bag
containing 16 pounds of marijuana.
Rupke claimed that he had
gotten the marijuana from Rucker and that he was to pay Rucker
for the marijuana after he sold it.
The bag of marijuana was
turned over to the police and they began a tape-recorded
surveillance of Rupke’s telephone conversations.
Based on information gathered in these tape-recorded
telephone conversations, the police formulated a plan whereby
Rupke would buy a shipment of marijuana from Rucker.
However,
on August 26, 1995, Rucker informed Rupke during one of the
11
1999-CA-001076-MR, not to be published.
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taped conversations that the suppliers of the 16 pounds of
marijuana that Rupke had previously turned over to the police
wanted the money for the marijuana immediately.
Since the
police could not come up with the money needed to satisfy Rucker
and his supplier, the police decided to do a “reverse”, whereby
Rupke would give the marijuana back to Rucker at a prearranged
location where the police would be watching and waiting to
arrest Rucker.
On the evening of August 26, Rupke, who was wearing a
wire transmitter, went to the parking lot of a local bank and
waited for Rucker.
When Rucker arrived, he was driving his own
car and seated in the front passenger’s seat was Miguel Garcia.
Rupke and Rucker got out of their cars and began talking.
According to police testimony, Rupke then walked to the
passenger side window of Rucker’s car and handed the green
duffel bag of marijuana to Garcia.
Rucker returned to his car
and started to drive away.
As Rucker was pulling out of the parking lot, one of
the unmarked police cars attempted to block Rucker’s car by
pulling in front of it.
out onto the street.
Rucker struck the police car and pulled
A police chase ensued as several law
enforcement vehicles pursued Rucker’s car.
Eventually, Rucker’s
vehicle exited the road into a mobile home court.
At that time,
one of the police officers saw Garcia throw the duffel bag out
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of the passenger side window.
At the far end of the mobile home
court, Rucker’s car slid off the road and went down a wooded
embankment.
When the officers reached Rucker’s car, both Rucker
and Garcia were gone.
The duffel bag and marijuana were later
recovered by the police from the area where it had been thrown.
Early on August 27, Carolyn Craven received a phone
call from Garcia.
In response to Garcia’s request, she picked
up Garcia and Rucker and drove them to Carbondale, Illinois,
where she checked them into a hotel.
Rucker was then taken to a
Carbondale hospital, where he was subsequently arrested.
Garcia
was arrested at the hotel in Carbondale.
On August 19 and 20, 1996, Garcia and Rucker were
jointly tried.12
Prior to trial, both defendants moved the trial
court for an order granting severance, which was denied.
At
trial, Garcia denied any involvement in the drug deal and
maintained that he just happened to be getting a ride with
Rucker when the whole ordeal took place.
Rucker did not testify
at trial, but his defense theory was that he acted under duress
because he was scared that his supplier, Garcia, would kill him
and his family.13
12
Garcia was indicted on charges of trafficking in marijuana and wanton
endangerment in the first degree. Garcia was first tried on February 28 and
February 29, 1996. That trial ended in a mistrial when the jury was unable
to reach a verdict. After the mistrial, Garcia was charged in a superceding
indictment with tampering with physical evidence, KRS 524.100, and the charge
of wanton endangerment in the first degree was dismissed.
13
Garcia was convicted of possession of marijuana and tampering with physical
evidence and sentenced to prison for a term of five years.
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In this appeal Rucker raises three claims of error.
His first claim is predicated upon the alleged ineffective
assistance of his trial counsel.14
More specifically, Rucker
claims that his former attorney failed to inform him of the
substance of an alleged plea offer.
According to Rucker, the
prosecutor presented the attorney with a “deal” by which Rucker
would have served less than two years in the state penitentiary.
Rucker claims he was never made aware of the Commonwealth’s
offer.
In support of his argument, Rucker cites the following
language contained in a letter dated January 8, 1999, which
appears to be from the office of his former attorney:15
3.
Didn’t we get you a deal with Tim
Kaltenbach16 that included a letter from
his office wherein you would be doing
less than two years in the Department
of Corrections. I do not remember
exactly what it was because your sister
came in and we gave her your file.
Rucker claims this letter “clearly demonstrates that he was
denied his constitutional right to effective assistance of
counsel . . . .”
14
The term trial counsel is somewhat misleading as Rucker’s original counsel
withdrew from the case prior to trial. Rucker’s ineffective assistance of
counsel claim pertains to the pre-trial conduct of his original attorney.
15
The letter is not signed by Rucker’s attorney, rather, it is signed by the
law firm’s paralegal.
16
Tim Kaltenbach was the Commonwealth’s Attorney who prosecuted the case.
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We decline to reach the merits of Rucker’s argument
since this issue should have and could have been raised in his
initial RCr 11.42 motion.17
The letter cited by Rucker in
support of his argument is dated January 8, 1999.
Rucker’s
initial RCr 11.42 motion was filed on March 25, 1999.
Thus,
there is no escaping the clear and unequivocal language
contained in RCr 11.42(3), which provides as follows:
The motion shall state all grounds for
holding the sentence invalid of which the
movant has knowledge. Final disposition of
the motion shall conclude all issues that
could reasonably have been presented in the
same proceeding.
This provision has been consistently interpreted as barring
successive motions under RCr 11.42.18
As was stated by our
Supreme Court in Hampton v. Commonwealth,19 “[t]he courts have
much more to do than occupy themselves with successive ‘reruns’
of RCr 11.42 motions stating grounds that have or should have
been presented earlier.”
Rucker seeks to relitigate his claim of ineffective
assistance of counsel by arguing that he did not receive the
above-quoted letter until after he filed his initial RCr 11.42
17
Rucker did in fact raise the issue of ineffective assistance of counsel in
his initial RCr 11.42 motion, however, his claim was based on different
grounds.
18
See Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 454 (2001); and Butler v.
Commonwealth, Ky., 473 S.W.2d 109, 109 (1971).
19
Ky., 454 S.W.2d 672, 673 (1970)(citing Kennedy v. Commonwealth, Ky., 451
S.W.2d 158, 159 (1970)).
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motion.
Rucker claims the letter was not mailed directly to
him, but was instead mailed to his sister in Illinois.
This
assertion, however, is refuted by the fact that the letter in
question was addressed to the state penitentiary in LaGrange,
where Rucker currently resides.
Moreover, Rucker has failed to
introduce any evidence indicating the letter was sent to his
sister in Illinois.20
Rucker’s argument also fails under CR 60.02 since that
rule was not intended merely as an additional opportunity to
relitigate the same issues which could “reasonably have been
presented” by direct appeal or RCr 11.42 proceedings.21
Similarly, we hold that Rucker has failed to establish an
adequate basis for relief under RCr 10.26 and CR 60.03 as his
claims amount to no more than conclusionary allegations
unsubstantiated by the record.
Rucker next claims that his PFO I conviction and
sentence should be vacated because it is constitutionally null
and void.
This claim was presented in Rucker’s initial RCr
11.42 motion, denied by the trial court, and affirmed by this
20
Rucker has failed to produce any supporting affidavits from his original
trial counsel and/or sister. Thus, Rucker’s arguments appear to be no more
than conclusionary allegations. Moreover, the letter in question is not even
signed by Rucker’s former counsel, rather, it is signed by the law firm’s
paralegal.
21
See McQueen v. Commonwealth, Ky., 948 S.W.2d 415 (1997).
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Court.
Accordingly, Rucker is barred from raising this argument
in a subsequent post-conviction relief motion.22
Rucker’s final claim of error is that the trial court
erred by failing to hold a competency hearing.
Once again, any
arguments pertaining to Rucker’s competency to stand trial
should have been raised on direct appeal or in his initial RCr
11.42 motion.
without merit.
Regardless, the arguments advanced by Rucker are
Rucker claims that a competency hearing is
mandatory pursuant to KRS 504.100.
Rucker further argues that
by failing to hold a competency hearing the trial court violated
his due process rights under the Fourteenth Amendment to the
United States Constitution.
Rucker, however, fails to
demonstrate exactly how he was prejudiced by the trial court’s
failure to conduct a competency hearing.
In the case sub judice, the trial judge ordered a
psychiatric evaluation.
Rucker was subsequently evaluated by a
Clinical Psychologist, Dr. Robert B. Sivley, who filed a report
indicating that Rucker was competent to stand trial.
The record
does not contain any medical evidence contradicting Dr. Sivley’s
report.
Moreover, Rucker has failed to offer any evidence
22
“The motion shall state all grounds for holding the sentence invalid of
which the movant has knowledge. Final disposition of the motion shall
conclude all issues that could reasonably have been presented in the same
proceeding.” See RCr 11.42(3).
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indicating that he was incompetent to stand trial.23
Since
Rucker has failed to establish that he was prejudiced by the
trial court’s failure to conduct a competency hearing, such
failure at most would constitute harmless error.24
Error without
prejudice is disregarded.25
Based on the foregoing reasons, the order of the
McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald Lee Rucker, Pro Se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
23
All of the cases cited by Rucker in support of his argument involve
instances in which the record contained evidence, such as doctors reports,
questioning the defendant’s competence to stand trial. See Drope v.
Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Gabbard v.
Commonwealth, Ky., 887 s.W.2d 547, 548-49 (1994); and Hayden v. Commonwealth,
Ky., 563 S.W.2d 720, 721-22 (1978), overruled in part Thompson v.
Commonwealth, Ky., 56 S.W.3d 406, 409 (2001).
24
See Mills v. Commonwealth, Ky., 996 S.W.2d 473, 486 (1999).
25
Commonwealth v. Donovan, Ky., 610 S.W.2d 601, 602 (1980)(citing RCr 9.24).
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