ROY STACEY v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 2, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED:
May 21, 2004; 2:00 p.m.
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-001343-MR
AND
NO. 2003-CA-001765-MR
ROY STACEY
APPELLANT
APPEALS FROM NELSON CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
INDICTMENT NO. 97-CR-00082
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING IN APPEAL NO. 2003-CA-001343-MR
AND
AFFIRMING IN APPEAL NO. 2003-CA-001765-MR
** ** ** ** ** ** ** **
BEFORE: BARBER, BUCKINGHAM, and MINTON, Judges.
MINTON, Judge:
Roy
Thomas
Stacey
appeals
the
denial
of
his
petition for post-conviction relief pursuant to RCr1 11.422 and
1
Kentucky Rules of Criminal Procedure.
his
petition
for
CR3 60.02(f).4
entitled
mental
to
In
post-conviction
both
actions,
post-conviction
incompetency
Stacey
relief
at
the
time
plea
was
not
consequently,
his
appeal number
2003-CA-001343-MR,
relief
contends
because
of
his
knowing
we
pursuant
he
vacate
he
suffered
guilty
and
that
to
is
from
plea;
and,
voluntary.
In
and
remand
for
an
evidentiary hearing concerning whether the three year statute of
limitations
imposed
by
RCr
11.42(10)
mental incapacity alleged by Stacey.
was
tolled
due
to
the
If the limitations statute
was tolled, then the court should also hear evidence on Stacey’s
allegation that his guilty plea was not knowing and voluntary
because
of
a
mental
incapacity.
In
appeal
number
2003-CA-
001765-MR, we affirm.
On August 20, 1997, Stacey was indicted by the Nelson
County Grand Jury on five counts of third-degree rape5 and five
counts of third-degree sodomy.6
allegation
that
between
The charges were based upon the
November
1996
and
June
1997,
Stacey
engaged in sexual conduct with two female victims who were under
the age of sixteen at a time when Stacey was over the age of
2
3
Appeal No. 2003-CA-001343-MR.
Kentucky Rules of Civil Procedure.
4
Appeal No. 2003-CA-001765.
5
Kentucky Revised Statutes (KRS) 510.060.
6
KRS 510.090.
2
twenty-one.
On November 20, 1997, Stacey was indicted as a
second-degree persistent felony offender.7
On
entered
August
into
a
11,
plea
1999,
Stacey
agreement.
and
Pursuant
the
to
Commonwealth
the
agreement,
Stacey would plead guilty to the ten sexual offense counts; and,
in return, the Commonwealth would recommend a sentence of five
years on each count, all to run concurrently.
In addition,
Stacey would plead guilty to being a first-degree persistent
felony offender;8 and the Commonwealth would recommend that his
sentence
be
enhanced
to
fifteen
agreement,
Stacey’s
sentence
convictions
in
Bullitt
Nos.
three
97-CR-00028,
years.
would
Circuit
97-CR-00070,
Finally,
run
concurrently
Court
and
under
cases
97-CR-00067)
the
with
(Indictment
and
one
Jefferson Circuit Court case (Indictment No. 97-CR-000291-16).
On August 11, 1999, the trial court accepted the plea agreement;
and, on October 22, 1999, the trial court entered final judgment
of
conviction
and
sentence
in
accordance
with
the
plea
motion
for
post-
agreement.
On
May
8,
2003,
Stacey
filed
conviction relief pursuant to RCr 11.42.
a
In his motion, Stacey
alleged that he was incompetent to enter a guilty plea because
of a diminished mental capacity as a result of head injuries
7
KRS 532.080(2).
8
KRS 532.080(3).
3
suffered
1997.
in
an
Stacey
automobile
also
moved
evidentiary hearing.
accident
for
which
occurred
appointment
of
in
counsel
August
and
an
On May 16, 2003, the trial court entered
an order denying Stacey’s RCr 11.42 motion for post-conviction
relief.
On
July
14,
2003,
Stacey
filed
a
motion
conviction relief pursuant to CR 60.02(f).
for
post-
In his CR 60.02
motion, Stacey again alleged that his guilty plea should be set
aside on the basis that he was incompetent to enter the plea
because of a diminished mental capacity.
In addition, Stacey
alleged that the Commonwealth and trial court failed to honor an
oral agreement made as part of his plea agreement that he would
be sentenced under pre-July 15, 1998, sexual offender law; that
the Commonwealth and trial court failed to honor an agreement
concerning
concurrent
ineffective
assistance
sentencing;
of
counsel
and
on
that
the
basis
he
received
that
trial
counsel allowed Stacey to plead guilty despite trial counsel’s
knowledge that he was mentally incompetent to do so.
2003,
the
trial
court
entered
an
order
On July 29,
denying
Stacey’s
Stacey
contends
RCr 60.02(f) motion for post-conviction relief.
APPEAL NO. 2003-CA-001343-MR
In
appeal
number
2003-CA-001343-MR,
that he is entitled to have his guilty plea vacated pursuant to
4
RCr 11.42 on the basis that he was not competent to enter into a
guilty plea because of a diminished mental capacity resulting
from
head
injuries
suffered
in
an
automobile
accident
which
occurred in August 1997.
Final judgment of conviction and sentence was entered
in this case on October 22, 1999.
Stacey filed his motion to
vacate pursuant to RCr 11.42 on May 8, 2003.
Thus, Stacey filed
his RCr 11.42 motion in this case over three years and six
months after entry of the final judgment.
RCr 11.42(10) states,
in relevant part, as follows:
Any motion under this rule shall be filed
within
three
years
after
the
judgment
becomes final, unless the motion alleges and
the movant proves either:
(a) that the facts upon which the claim is
predicated were unknown to the movant and
could not have been ascertained by the
exercise of due diligence; or
(b) that
the
fundamental
constitutional
right asserted was not established within
the period provided for herein and has been
held to apply retroactively.
The
exception
provided
in
RCr
11.42(10)(b)
is
inapplicable because Stacey does not identify or base his claim
upon
the
protection
violation
which
was
of
any
newly
established
limitations period.
5
ascertained
outside
of
constitutional
the
three
year
Stacey
relies
upon
the
exception
RCr 11.42(10)(a) to avoid the limitations period.
provided
in
Stacey claims
that his lack of mental capacity has been ongoing such that he
did not realize until after the expiration of the limitations
period that he was not competent to enter a guilty plea.
support
of
this
allegation,
Stacey
attached
to
his
motion
In
a
letter, dated June 21, 1999, from Martine J. RoBards, Ph.D., to
David Changaris, M.D.
The letter appears to have been prepared
in association with a civil action filed as a result of Stacey’s
August
23,
1997,
automobile
accident.
The
letter
follows:
Mr. Roy Stacey is suffering from a vast
array of neuropsychological deficits, most
likely as a direct result of the subject
accident.
He is depressed and anxious,
suffering
from
post-traumatic
stress
disorder.
He has substantial attention,
concentration and memory deficits, as well
as cerebral personality disorder, which is
interfering with every aspect of his life.
He has suffered bilateral cortical injuries,
as well as subcortical trauma affecting the
deep frontal area and rostral and caudal
portions of the brainstem (reticular formation).
His most severe problems cannot be
explained away by simple motor slowing, but
are a manifestation of injury to his cerebral cortex and/or the underlying thalamic
nuclei supplying the afferents of the prefrontal cortex (including the premotor area)
and the posterior association cortex (the
parieto-temporo-occipital confluence).
He
exhibits problems with concept formation,
mental flexibility, visuospatial relations,
visuomotor function, auditory attention, and
sensorimotor function.
Regardless of the
6
states
as
sensory modality involved, he is impaired in
attention, concentration, learning, memory
and recall.
His substantially higher function in recognition tests attest to the
sincerity of his effort with respect to the
testing process. His problems are magnified
by the fact that he is incarcerated and is
experiencing psychological stress characteristic of such institutional patients.
He
should be regarded as permanently mentally
disabled, and it is questionable whether a
neuropsychological
rehabilitation
program
will now be of assistance to him, due to the
long interval since his injury.
The jailer
prevented
this
patient
from
getting
appropriate diagnosis and therapy when he
originally sought it.
Mr. Stacey’s ability
to earn a living after his jail term is
questionable.
While portions of the letter are highly technical, the
letter describes a “vast array of neuropsychological deficits”
which has resulted in “substantial attention, concentration and
memory
deficits”
[Stacey’s]
which
life.”
The
interfere
letter
“with
states
that
every
Stacey
considered “permanently mentally disabled.”
some
credibility
to
Stacey’s
allegation
aspect
of
should
be
The letter lends
that
the
facts
upon
which his claim is predicated (i.e., that he was incompetent to
enter a guilty plea because of a mental incapacity) were unknown
to him (because of his mental incapacity) and could not have
been ascertained by the exercise of due diligence (because he
was
unable
to
exercise
due
diligence
incapacity).
7
because
of
his
mental
Though not attached to his RCr 11.42 motion, attached
to Stacey’s CR 60.02 motion was a memorandum from Department of
Corrections Certified Psychological Associate Dawn Snyder, M.A.,
to
John
Coy,
Chairman
of
the
Parole
Board.
The
memorandum
stated, in part, as follows:
Mr. Stacey reported and his file information
indicated that in 1997, he had been in an
automobile accident, suffered severe head
injury and has had problems with his memory
since that time.
His current medications
include
Tegretol
to
control
grand
mal
seizures, Vistaril for anxiety and Naproxen.
On August 31, 2001, the Neurobehavioral
Cognitive Status Examination was administered.
His
profile
reflects
mild
to
moderate difficulties in the domains of
orientation and attention, comprehension,
and reasoning.
His score on the memory
portion indicates a severe deficit.
A comprehensive
neuropsychological
battery
is
recommended to provide a better diagnostic
assessment of the man’s functioning and to
perhaps held others to better help him
during and after his incarceration.
Given the premise that memory is closely
linked to learning because memory is the
natural
outcome
of
learning,
the
Sex
Offender Treatment Program is not likely to
be of benefit to an individual who has such
severe deficits.
Given the head trauma and
consequent damage that Mr. Stacey sustained,
it would be fruitless to expect his status
to change in regards to treatment with this
program and to penalize him for this.
Again,
while
not
conclusive,
this
memorandum
offers
credibility to Stacey’s claim that the statute of limitations
should be tolled pursuant to RCr 11.42(10)(b).
8
The memorandum
reflects a diagnosis of a mental incapacity severe enough to
warrant his excusal from the Department of Correction’s sexual
offender program.
The
provisions
instant
of
KRS
situation
413.170(1)
here
which
is
toll
analogous
the
to
the
statute
of
limitations in civil cases in the event that the plaintiff was,
at the time the cause of action accrued, “of unsound mind.”
such
cases,
the
statute
disability is removed.
of
limitations
KRS 413.170(1).
is
tolled
until
In
the
The term "unsound mind"
within the meaning of KRS 413.170(1) has been interpreted to
mean that the person claiming the disability “must show that he
has been rendered incapable of managing his own affairs.”9
existence
of
mental
disability
under
KRS
413.170(1)
The
is
a
question of fact.10
Analogizing
the
foregoing
to
the
instant
case,
the
RoBards letter and the Snyder memorandum are sufficient to raise
an evidentiary issue concerning whether Stacey suffered from an
on-going mental incapacity following his guilty plea such that
the statue of limitations contained in RCr 11.42(10) should be
tolled.
Because such a determination is a question of fact,11
9
Rigazio v. Archdiocese of Louisville, Ky.App., 853 S.W.2d 295, 297
(1993); Southeastern Kentucky Baptist Hosp. v. Gaylor, Ky., 756 S.W.2d
467 (1988).
10
Carter v. Huffman, Ky., 262 S.W.2d 690, 692 (1953).
11
Id.
9
Stacey
is
entitled
to
an
evidentiary
hearing
on
the
issue.
Accordingly, we remand for an evidentiary hearing on the issue
of whether Stacey was mentally impaired such that the statute of
limitations should be tolled and his RCr 11.42 motion reinstated
and considered on the merits.
Upon
remand,
the
trial
court
should
conduct
an
evidentiary hearing to determine whether Stacey suffered from a
mental incapacity, or an “unsound mind,” such that during the
three year limitations period, he was unable to understand or
appreciate the factual basis for his present RCr 11.42 motion;
and,
considering
his
mental
tolled,
the
trial
court
statute
should
of
proceed
exercise
have
If, following the evidentiary hearing, the trial
the
the
could
diligence.
that
with
he
the
determines
basis
whether
ascertained
court
factual
state,
limitations
to
of
should
consider
due
be
Stacey’s
RCr 11.42 motion on the merits.
An evidentiary hearing is required in an RCr 11.42
case
if
there
is
a
material
issue
of
fact
that
cannot
be
conclusively resolved, i.e., conclusively proved or disproved,
by an examination of the record.12
12
The trial judge may not
Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44 (1993), cert.
denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994); Lewis v.
Commonwealth, Ky., 411 S.W.2d 321, 322 (1967).
10
simply disbelieve factual allegations in the absence of evidence
in the record refuting them.13
If, following the evidentiary hearing, the trial court
determines
that
the
statute
of
limitations
was
tolled
by
a
mental incapacity, the trial court should then proceed with an
evidentiary
hearing
on
the
merits
of
Stacey’s
claim.
For
reasons similar to those previously discussed, and in light of
RoBard’s letter and the Snyder memorandum, Stacey’s claim that
his guilty plea was not knowing and voluntary due to a mental
incapacity is not clearly, conclusively resolved by the record.
APPEAL 2003-CA-001765-MR
In appeal number 2003-CA-001765-MR, Stacey appeals the
denial
of
CR 60.02.
his
motion
for
post-conviction
relief
pursuant
to
As in his RCr 11.42 action, Stacey again alleged that
his guilty plea should be set aside on the basis that he was
incompetent to enter the plea because of a diminished mental
capacity.
In addition, Stacey alleges that the Commonwealth and
trial court failed to honor an oral agreement made as part of
his plea agreement that he would be sentenced under pre-July 15,
1998, sexual offender law; that the Commonwealth and trial court
failed to honor an agreement concerning concurrent sentencing;
13
Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 452–453 (2001).
11
and that he received ineffective assistance of counsel on the
basis that trial counsel allowed him to plead guilty despite
trial counsel’s knowledge that he was mentally incompetent to do
so.
CR
60.02
is
meant
to
provide
relief
which
available by direct appeal or under RCr 11.42.14
is
not
CR 60.02 is
available only to raise those issues that cannot be raised in
other
proceedings.15
The
arguments
raised
by
Stacy
in
his
CR 60.02 to the effect that his guilty plea was not knowing and
voluntary because of a mental incapacity and that he received
ineffective assistance of counsel are issues which could have
been raised in a timely RCr 11.42.
As those issues could be
raised in a timely RCr 11.42 proceeding, these issues are not
proper arguments to be raised under CR 60.02(f).16
We are unable to further review Stacey’s claims that
the Commonwealth and trial court failed to honor oral agreements
concerning
pre-July
15,
concurrent sentencing.
his
brief
agreements.
does
sexual
offender
sentencing
and
In neither his CR 60.02 motion nor in
Stacey
Stacey
1998,
specify
does
not
the
state
details
what
of
the
the
alleged
specific
14
oral
Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856 (1983); Barnett v.
Commonwealth, Ky., 979 S.W.2d 98, 101 (1998).
15
McQueen v. Commonwealth, Ky., 948 S.W.2d 415, 416 (1997).
16
Id.
12
agreements were, or how the Commonwealth and trial court failed
to comply with them.
With regard to the alleged agreement to apply preJuly 15,
1998,
law,
Stacey
does
not
specify
the
specific
statutory provisions involved, how the trial court failed to
follow the alleged agreement, or how this affected his sentence.
Further,
Stacey
does
not
specify
the
terms
of
the
alleged
concurrent sentencing agreement.17
Because Stacey has failed to be more specific in his
allegations
regarding
the
Commonwealth
and
the
trial
court’s
failure to honor the alleged oral agreements, we are unable to
further review these issues.
For
the
foregoing
reasons,
the
judgment
in
appeal
number 2003-CA-001343-MR is vacated and remanded for additional
proceedings consistent with this opinion; and the judgment in
appeal number 2003-CA-001765-MR is affirmed.
ALL CONCUR.
17
We note that the final judgment ordered that the sentence in the
present case be run concurrently with Bullitt Circuit Court Indictment
Nos. 97-CR-00028; 97-CR-00067; and 97-CR-00070; and with Jefferson
Circuit Court Indictment No. 98-CR-000291-16. Stacey may be mistaken
concerning this issue.
13
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Roy Stacey, Pro se
Eastern Kentucky
Correctional Complex
West Liberty, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
14
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