DAVID L. CARR v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000799-MR
DAVID L. CARR
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 97-CR-003029
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BAKER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
David L. Carr has appealed, pro se, from an
order of the Jefferson Circuit Court entered on March 15, 2002,
which denied his RCr1 11.42 motion to vacate, set aside, or
correct his sentence.
Having concluded that all of Carr’s
claims of error are without merit, we affirm.
1
Kentucky Rules of Criminal Procedure.
On December 11, 1997, Carr was indicted by a Jefferson
County grand jury on two counts of murder,2 two counts of robbery
in the first degree,3 and on one count of tampering with physical
evidence.4
The grand jury charged that on or between November
19, 1997, and December 4, 1997, Carr and two accomplices robbed
and murdered Jodean Nichols and Kristy Motley, and then tampered
with evidence in an attempt to conceal the crimes.
On January
13, 1999, pursuant to KRS 532.025, the Commonwealth filed notice
that aggravating circumstances existed and that punishments of
death and/or life in prison without the possibility of parole
could be authorized.5
Rather than go to trial, Carr elected to enter guilty
pleas to all of the charges in his indictment.
As part of its
plea offer, the Commonwealth stated that it intended to argue
for a sentence of life in prison without the possibility of
parole on the murder convictions, but that the death penalty and
a sentence of less than life in prison without the possibility
2
Kentucky Revised Statutes (KRS) 507.020.
3
KRS 515.020.
Robbery in the first degree is a Class B felony.
4
KRS 524.100.
Tampering with physical evidence is a Class D felony.
5
Murder is a capital offense.
The crimes for which Carr was charged were committed on or around November
24, 1997. KRS 532.025 was amended on July 15, 1998, to include life in
prison without the benefit of probation or parole as a sentencing option in
capital offense cases. On November 19, 1999, Carr filed a notice with the
trial court wherein he agreed to allow the court to consider sentencing him
to life in prison without the possibility of parole. Specifically, Carr
stated that “[i]t is [Carr’s] belief that under the particular circumstances
of this case, including the proposed plea agreement, the penalty of [l]ife
[w]ithout the [b]enefit of [p]robation or [p]arole is mitigating as an
alternative to a death sentence.”
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of parole for 25 years would be excluded from consideration.
In
addition, the Commonwealth agreed to recommend 20 years’
imprisonment on each of the two robbery convictions and 5 years’
imprisonment on the tampering with physical evidence conviction.
On November 30, 1999, the trial court accepted Carr’s guilty
pleas to all five charges.
On December 28, 1999, after a pre-sentence
investigation had been completed and after a three-day
sentencing hearing was held, the trial court sentenced Carr to
life in prison without the possibility of parole on each murder
conviction, 20 years’ imprisonment on each robbery conviction,
and five years’ imprisonment on the tampering with physical
evidence conviction.6
On May 4, 2001, Carr filed a pro se RCr 11.42 motion
to vacate, set aside, or correct his sentence, on the grounds
that he had received ineffective assistance of counsel.
Carr
argued, inter alia, that his defense counsel had been
ineffective by allowing him to be sentenced in violation of the
Ex Post Facto Clause of the United States Constitution,7 and by
“coercing” him to plead guilty while under the influence of
prescription drugs.
On December 21, 2001, after having counsel
6
The sentences for Carr’s robbery and tampering with physical evidence
convictions were set to run concurrently with his life in prison without the
possibility of parole sentences.
7
See U.S. Const. Art. I §10, cl. 1.
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appointed, Carr filed a supplemental RCr 11.42 motion, which
restated the claim that his defense counsel had been ineffective
by permitting him to plead guilty while under the influence of
prescription drugs.
On March 15, 2002, the trial court denied
Carr’s RCr 11.42 motion.
This appeal followed.
Carr first argues that his defense counsel was
ineffective by “coercing” him into accepting a sentence of life
in prison without the possibility of parole.
According to Carr,
the Commonwealth recommended a sentence of life in prison
without the possibility of parole for 25 years, but his defense
attorney somehow improperly coerced Carr into pleading to a
“harsher penalty.”
We disagree for two reasons.
First, Carr is simply incorrect with respect to the
procedural history of this case.
Our review of the record shows
that the Commonwealth expressly stated that it intended to
“recommend and argue for a sentence of life without parole
[emphasis original].”
In short, there is nothing in the record
to suggest that the Commonwealth ever agreed to recommend a
sentence of life in prison without the possibility of parole for
25 years as part of Carr’s plea agreement.
Second, Carr seems to mistakenly believe that by
agreeing to plead guilty, he was entitled to his choice of
sentences and that his defense counsel “coerced” him into
accepting a harsher sentence.
After hearing evidence regarding
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both aggravating and mitigating circumstances, the trial court,
as the ultimate sentencing authority,8 imposed a sentence of life
in prison without the possibility of parole for Carr’s murder
convictions.
Accordingly, Carr’s argument that his defense
attorney was ineffective by somehow “coercing” him into
accepting a harsher sentence is wholly without merit.
Carr next argues that his sentences of life in prison
without the possibility of parole violate the Ex Post Facto
Clause of the United States Constitution, and that as such, he
received ineffective assistance of counsel when his defense
attorney allowed him to plead guilty and receive these
sentences.
According to Carr, since the crime for which he was
charged was committed on or around November 24, 1997, and since
KRS 532.025 was amended on July 15, 1998, for the trial court to
include life in prison without the possibility of parole as a
sentencing option in his capital case, subjected him to a
sentence that violated the Ex Post Facto Clause.
We disagree.
The Ex Post Facto Clause of the United States
Constitution is aimed at laws that “‘retroactively alter the
definition of crimes or increase the punishment for criminal
8
See Commonwealth v. Corey, Ky., 826 S.W.2d 319, 322 (1992)(noting that a
trial court is vested with final sentencing authority).
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acts’” [emphasis added].9
In Commonwealth v. Phon,10 our Supreme
Court held that the July 15, 1998, amendment to KRS 532.025,
which permitted a sentence of life in prison without the
possibility of parole, was a “lesser penalty than death.”11
The
Supreme Court further held that under KRS 446.110, the statute
could be applied retroactively with the “unqualified consent of
the defendant.”12
In the case sub judice, a notice bearing Carr’s
signature was filed with the trial court wherein he agreed to
“allow the [c]ourt to consider the penalty of [l]ife [w]ithout
the [b]enefit of [p]robation or [p]arole. . . .”
Thus, since a
sentence of life in prison without the possibility of parole is
a “lesser sentence” than death, there was no ex post facto
violation.
In addition, since Carr gave his “unqualified
consent” pursuant to KRS 446.110, he was properly sentenced to
life in prison without the possibility of parole.
Accordingly,
since no ex post facto violation occurred, Carr did not receive
9
California Dept. of Corrections v. Morales, 514 U.S. 499, 504-05, 115 S.Ct.
1597, 1601, 131 L.Ed.2d 588 (1995)(quoting Collins v. Youngblood, 497 U.S.
37, 43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990)).
10
Ky., 17 S.W.3d 106 (2000).
11
Id. at 108.
12
Id. KRS 446.110 states in part that “[i]f any penalty, forfeiture or
punishment is mitigated by any provision of the new law, such provision may,
by the consent of the party affected, be applied to any judgment pronounced
after the new law takes effect.”
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ineffective assistance of counsel when his defense attorney
advised him to plead guilty.
Finally, Carr makes a generalized argument that his
guilty pleas were not knowingly, voluntarily, and intelligently
entered.
In Centers v. Commonwealth,13 this Court discussed the
elements of a valid guilty plea:
In determining the validity of guilty
pleas in criminal cases, the plea must
represent a voluntary and intelligent choice
among the alternative course of action open
to the defendant. The United States Supreme
Court has held that both federal and state
courts must satisfy themselves that guilty
pleas are voluntarily and intelligently made
by competent defendants. Since pleading
guilty involves the waiver of several
constitutional rights, including the
privilege against compulsory selfincrimination, the right to trial by jury,
and the right to confront one's accusers, a
waiver of these rights cannot be presumed
from a silent record. The court must
question the accused to determine that he
has a full understanding of what the plea
connotes and of its consequences, and this
determination should become part of the
record [citations omitted].
The validity of a guilty plea must be
determined not from specific key words
uttered at the time the plea was taken, but
from considering the totality of
circumstances surrounding the plea. These
circumstances include the accused's
demeanor, background and experience, and
whether the record reveals that the plea was
voluntarily made. The trial court is in the
best position to determine if there was any
reluctance, misunderstanding,
13
Ky.App., 799 S.W.2d 51, 54 (1990).
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involuntariness, or incompetence to plead
guilty. Solemn declarations in open court
carry a strong presumption of verity
[citations omitted].
Based on our review of the colloquy between Carr and
the trial court, we conclude that Carr’s guilty pleas were
knowingly, voluntarily, and intelligently entered.
When asked
about his mental state, Carr stated that he was not suffering
from any mental or emotional problems and that he was not under
the influence of any drugs which would affect his ability to
understand the proceedings.
Carr stated that he had been given
sufficient time to discuss the case with his attorney and that
he was satisfied with the advice she had given him.
Carr stated that no one had forced him to plead
guilty, nor had anyone made any promises to him in exchange for
his agreeing to plead guilty.
Carr affirmatively stated that he
had read and signed a form containing a waiver of further
proceedings and that he understood what this waiver meant.
Carr
also stated that he understood he was waiving his right to
appeal, his right to a jury trial, his right to remain silent,
his right to confront and cross-examine witnesses against him,
and his right to call witnesses on his behalf.
Carr’s defense counsel stated that she had informed
Carr of possible defenses and of his Constitutional rights and
that she believed Carr understood those rights.
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When asked if
he had any questions or if there was anything that had taken
place which he did not understand, Carr responded in the
negative.
Finally, Carr stated affirmatively on the record that
he was pleading guilty to all of the charges in his indictment14
and that he understood the range of penalties that could be
imposed for each conviction.
Therefore, based on the “totality
of the circumstances,” we conclude that Carr’s guilty pleas were
knowingly, voluntarily, and intelligently entered.
Accordingly,
the trial court did not err in accepting Carr’s guilty pleas.
Based on the foregoing, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David L. Carr, Pro Se
Central City, Kentucky
Albert B. Chandler III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
14
Our review of the colloquy suggests that Carr entered guilty pleas to both
murder charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1970). Carr stated on the record that if the case
proceeded to trial, he believed that based on the sufficiency of the evidence
against him, a jury would find him guilty of murder. Carr admitted to being
present when both victims were killed, but denied that he was the individual
who actually pulled the trigger.
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