CLIFFORD VICK v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 14, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002320-MR
CLIFFORD VICK
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 99-CR-00042
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND TACKETT, JUDGES.
GUIDUGLI, JUDGE.
Clifford Vick (hereinafter “Vick”) appeals
from the order and judgment of the Muhlenberg Circuit Court
denying his pro se RCr 11.42 motion.
We affirm.
Vick was indicted by the Muhlenberg County Grand Jury
on March 10, 1999.
The indictment charged him with two counts
of Rape in the second-degree (KRS 510.050).
The indictment
alleged that Vick had sexual intercourse on two separate
occasions with J.T., a female less than fourteen years of age.
Vick, whose date of birth is April 2, 1978, was twenty years old
at the time of the alleged rapes.
Vick was appointed counsel
and the matter was set for trial.
The trial date was continued
several times and eventually Vick and the Commonwealth entered
into a negotiated plea agreement.
The Commonwealth agreed to
dismiss one count of rape, second degree, and amend the other
charge to rape in the third degree (KRS 510.060).
In addition,
the Commonwealth agreed to recommend a three (3) year sentence
and not oppose probation.
After discussing the matter with his
attorney, Rick agreed to the negotiated plea agreement and
entered a guilty plea to one count of third-degree rape on July
29, 1999.
Following a guilty plea hearing, the trial court
accepted Vick’s plea to one count of third-degree rape and
probated the prison sentence.
However, Vick violated the
probation conditions on two separate occasions and on December
14, 2001, the trial court revoked his probation and imposed the
three year prison sentence.
On October 2, 2002, Vick filed his pro se RCr 11.42
motion.
In his motion, Vick alleged that he received
ineffective assistance of counsel in that counsel coerced him
into pleading guilty and that since he did not meet the
statutory requirements of KRS 510.060 his plea was invalid.
After reviewing the motion and the record, the Muhlenberg
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Circuit Court entered an order on October 28, 2002, denying
Vick’s RCr 11.42 motion.
This appeal followed.
On appeal, Vick, again, argues that his attorney was
ineffective in that he forced Vick to plead guilty.
Specifically, Vick contends that his attorney told him that he
could not receive a fair trial because of his race and the race
of the alleged victim.
As such, Vick felt compelled to forego a
trial and take the plea agreement offered.
In fact, Vick
includes an affidavit from his sister, Patricia A. Boyd, signed
August 12, 2002, that states, in relevant part, the following:
I was present for and personally witnessed
the signing of the plea bargain agreement
between Clifford A. Vick and Commonwealth of
Kentucky. Myself and Clifford were informed
by his lawyer (court appointed attorney –
Keith Virgin) the Mr. Virgin did not believe
Clifford could receive a fair trial based on
the fact that Clifford is a black man. He
said because the victim was a white female
and most likely Clifford would be tried by
an all white jury. Mr. Virgin said
unfortunately the jury would look at the
color of his skin and most likely find him
guilty based on that. He said he didn’t
feel confident that he could get a not
guilty verdict therefore he advised Clifford
to accept the plea-bargain agreement. I
then asked Mr. Virgin if Clifford and I
could discuss it. And he agreed to give us
a few minutes to think about it. I then
instructed Clifford to think seriously about
what signing the agreement would mean for
him. But Clifford told me that he believed
his attorney and he was afraid that the jury
would find him guilty based on his skin
color. So he signed the agreement. He said
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he felt he had to sign it to keep from going
to prison.
Also included in the record are Vick’s signed Motion To Enter
Guilty Plea and a transcript of the guilty plea hearing held on
July 29, 1999.
Each of these documents supports the
Commonwealth’s position that Vick’s plea was entered
voluntarily, knowingly and intelligently.
In Phon v. Commonwealth, Ky. App., 51 S.W.3d 456
(2001), this Court set forth the standard of review relative to
a guilty plea and a RCr 11.42 motion.
In that case, the Court
stated:
In order to prevail on a claim of
ineffective assistance of counsel, the
defendant must satisfy the two-part test set
forth in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 l.Ed.2d 674 (1984);
accord, Gall v. Commonwealth, Ky., 702
S.W.2d 37, 39-40 (1985), cert. denied 478
U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724
(1986). In analyzing trial counsel’s
performance, the court must “indulge a
strong presumption that counsel’s conduct
falls within the wide range of reasonable
professional assistance[.]” Strickland, 104
S.Ct. at 2065. In order to show actual
prejudice in the context of a guilty plea, a
defendant must demonstrate that there is a
reasonable probability that, but for
counsel’s unprofessional errors, he would
not have pled guilty and would have insisted
on going to trial. Hill v. Lockhart, 474
U.S. 52, 106 S.Ct. 366, 369-70, 88 L.Ed.2d
203 (1985). See also, Taylor v.
Commonwealth, Ky.App., 724 S.W.2d 223, 226
(1986).
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Id. at 459, 460.
Vick signed the motion to enter a guilty plea,
which included statements that he had been fully advised of his
rights, that he was in fact guilty, and that his plea was being
entered freely, knowingly, intelligently and voluntarily.
He
admits that he was advised by his attorney of potential jury
bias, weighed all facts and decided to enter his plea after
consultation with his attorney and his sister.
Vick’s argument
that he was coerced into pleading guilty is refuted by the
record.
As such, we find no basis to Vick’s contention that his
attorney forced him to enter a plea or that Vick did not plead
guilty freely, voluntarily and knowingly.
Vick’s second agreement is that he did not meet the
statutory age requirement to be found guilty of third-degree
rape pursuant to KRS 520.060.
While he is correct that he was
20 on the date of the offense, that is not the end of the
inquiry.
Vick was indicted on the charge of rape in the second
degree (KRS 520.050) and he and the victim did meet the
statutory age requirements for that offense – Vick over 17 and
victim under 14.
Based upon the two counts of rape, second
degree, Vick was facing a prison term of up to twenty (20)
years.
His attorney successfully negotiated a plea agreement to
a lesser charge on only one count and a three year probated
sentence.
Thus, the indictment did charge an offense to which
he met all statutory age requirements and the issue at trial
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would be whether he had sexual intercourse with the young girl.
Rather than take a chance that the jury would convict and
sentence him to up to twenty years in prison, Vick opted to
accept a very favorable plea agreement to a lesser charge with a
relatively short sentence, which would be probated.
Although he
did not meet the age requirement of rape in the third degree
(being 21 years old), he benefited greatly by accepting the
negotiated plea agreement.
In Myers v. Commonwealth, Ky., 42
S.W.3d 594 (2001), the Kentucky Supreme Court held that a
defendant could enter a guilty plea and waive the provisions of
KRS 532.110(1)(c), the aggregate sentencing provision.
By doing
so, the defendant received the benefit of being eligible for
parole at an earlier date.
In Myers, our Supreme Court held:
The statute [KRS 532.110(a)(c)] benefits the
offender by shielding him or her from an
endless accumulation of consecutive
sentences. In that respect, it is similar
to the five-year limitation on a period of
probation provided in KRS 533.020(4). In
Commonwealth v. Griffin, Ky., 942 S.W.2d
289, 292 (1997), we held that a defendant
was estopped from asserting the five-year
limitation of that statute where he,
himself, had requested that his period of
probation be extended to ten years so that
he could avoid revocation for nonpayment of
restitution. [Footnote omitted].
Similarly, in Boles v. Commonwealth, Ky.,
406 S.W.2d 853, 855 (1966), it was held that
a defendant who had specifically requested
that the jury be instructed to sentence him
to life without parole was not entitled to
relief under RCr 11.42 on grounds that the
sentence was not authorized by the statute
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under which he was indicted. “It eludes us
how we could reconcile those holdings with
one granting the relief requested here in
face of the defendant’s own request for the
very instruction fixing the limit of penalty
of which he now complains.” Id. at 855.
Accordingly, we conclude that a defendant
may validly waive the maximum aggregate
sentence limitation in KRS 532.110(1)(c)
that otherwise would operate to his benefit.
...
That fact may have been a consideration
which prompted Appellant to agree to waive
the limitation in KRS 532.110(1)(c). If so,
then it could be concluded that he knowingly
and voluntarily agreed to waive the benefit
of that statute in exchange for the
guarantee of an earlier parole eligibility
date.
Id. at 597.
Later in that opinion, the Court held that one can
knowingly and voluntarily waive one’s rights in order to receive
a specific benefit.
The Court further stated that such waiver
would effectively eliminate a claim of ineffective assistance of
counsel.
If it is determined that Appellant
knowingly and voluntarily waived his rights
under KRS 532.110(1)(c) in exchange for the
Commonwealth’s agreement to amend the murder
charge to manslaughter in the second degree,
or for some other quid pro quo, such would
effectively eliminate his claim of
ineffective assistance of counsel.
. . .
Accordingly, we hold that the maximum
aggregate sentence limitation contained in
KRS 532.110(1)(c) can be the subject of a
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knowing and voluntary waiver by a person in
whose favor the limitation operates[.]
Myers at 42 S.W.3d 598.
We believe the same principle is presented in this
case.
Although Vick did not meet the age requirement of KRS
510.060, he knowingly and voluntarily entered a guilty plea to
receive the benefits of a lesser sentence.
Vick has failed to
prove either prong of the ineffective assistance of counsel test
set out in Strickland, supra.
As such, we find no error in the
court’s order denying Vick’s RCr 11.42 motion.
For the foregoing reasons, we affirm the Muhlenberg
Circuit Court’s order denying Vick’s RCr 11.42 relief.
BUCKINGHAM, JUDGE, CONCURS.
TACKETT, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
TACKETT, JUDGE, DISSENTING.
Respectfully, I dissent.
The majority fails to acknowledge that a guilty plea does not
waive the failure of the indictment to charge an offense.
In
order to be convicted of rape in the third degree, Vick would
have had to be 21 years old or older at the time of the offense.
He was not, and the indictment as amended fails to charge an
offense, even though the original indictment was valid.
While
Vick received a specific benefit for his guilty plea, namely
avoiding a prison sentence and receiving probation on a class D
felony offense, I must conclude that the majority overlooks the
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critical fact that rape in the third degree is not a lesser
included offense of rape in the second degree, but a completely
separate offense with different elements, elements which are not
satisfied by the facts of this case.
I would reverse the judgment of the Warren Circuit
Court and order the matter set for trial on the original
indictment.
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Clifford A. Vick
Fredonia, KY
A. B. Chandler
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, KY
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