BEVERLY JONES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 24, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-002012-MR
BEVERLY JONES
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS McDONALD, JUDGE
ACTION NO. 98-CR-000029, 98-CR-000105 and 98-CR-000834
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
In June 1998, the Jefferson Circuit Court
convicted Beverly Jones, pursuant to her guilty plea, of firstdegree assault,1 first-degree possession of a controlled
substance (cocaine),2 possession of drug paraphernalia,3 and
1
KRS 508.010.
2
KRS 218A.1415.
3
KRS 218A.500.
second-degree escape.4
The court sentenced Jones to a total of
thirteen years’ imprisonment.
Proceeding pro se, in December 2001 Jones sought
relief from her conviction under RCr 11.42.
She alleged that
she had been incompetent to plead guilty because of a mental
disease or defect and that her guilty plea had not been knowing
and voluntary because it had been based on the ineffective
advice of counsel.
Trial counsel, allegedly, had failed to make
any investigation of Jones’s mental condition or to consider
defenses based on it.
Jones was appointed counsel, who sought
funds to have Jones psychiatrically examined.
Following a
hearing on that issue, at which the Commonwealth was allowed to
participate, the court, by order entered August 14, 2003, denied
both Jones’s request for funds and her RCr 11.42 motion.
from those denials that Jones has appealed.
It is
The court erred,
she maintains, by upholding her guilty plea, by denying her
request for funds, and by refusing to consider her request ex
parte, as KRS 31.185(2) provides.
We affirm.
As Jones notes, punishment on the basis of an invalid
guilty plea constitutes a due process violation subject to RCr
4
KRS 520.030.
2
1.42 relief.5
A plea is invalid if the defendant was incompetent
to proceed6 or if the defendant’s waiver of her trial-related
rights was not sufficiently knowing and voluntary.7 To help
ensure that pleas are valid, trial courts are required to
interview the defendant before accepting her plea and to inquire
concerning her competence, her understanding of her rights, and
her willingness to waive them.8
A trial court may summarily dismiss an RCr 11.42
motion if the record conclusively refutes the movant’s
allegations or if the allegations, even if proved, would not
entitle the movant to relief.9
In denying Jones’s RCr 11.42
motion, the trial court concluded that the record of Jones’s
plea colloquy refutes her claims that she was incompetent and
insufficiently advised.
We agree that the record of the colloquy refutes her
claim of incompetence.
It shows that she was lucid at the time
5
Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90 S.
Ct. 1463 (1970); Thompson v. Commonwealth, Ky., 56 S.W.3d 406
(2001).
6
Thompson v. Commonwealth, supra.
7
Fraser v. Commonwealth, Ky., 59 S.W.3d 448 (2001).
8
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51 (1990) (citing
Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct.
1709 (1969)).
9
Fraser v. Commonwealth, supra.
3
of her plea, understood both the seriousness of her predicament
and the nature of the proceeding, and was capable of assisting
in her defense.10
Her statements during the colloquy that she
had undergone a psychiatric hospitalization about two years
previously and that she was taking a prescription medication
that did not impair her thought processes did not provide reason
to doubt her competence given her apparently alert demeanor and
her further statements indicating her understanding of the
proceeding.11
We also agree with the trial court, although for
different reasons, that the record refutes Jones’s claim that
she was inadequately advised.
As she notes, counsel has a duty
to conduct a reasonable investigation of the case and thereupon
to apprise the defendant of any viable defenses.12 Counsel’s
failure to investigate and her neglect of substantial defenses
10
Fugate v. Commonwealth, Ky., 62 S.W.3d 15 (2001) (Competence
to stand trial is the capacity to appreciate the nature and
consequences of the proceedings and to participate rationally in
the defense.); Littlefield v. Commonwealth, Ky. App., 554 S.W.2d
872 (1977) (Competence to plead guilty is measured by the same
standard as competence to stand trial.)
11
Mills v. Commonwealth, Ky., 996 S.W.2d 473 (1999) (A
competency determination is not required unless a substantial
reason to doubt the defendant’s competence is either apparent to
the trial court or brought to the court’s attention.)
12
Wiggins v. Smith, 539 U.S. 510, l56 L. Ed. 2d 471, 123 S. Ct.
2527 (2003). 539 U.S. 510, l56 L. Ed. 2d 471, 123 S. Ct. 2527
(2003).
4
can render her representation ineffective.13
Guilty pleas that
would not have been entered but for counsel’s failure to make a
reasonable investigation may be deemed unknowing and hence
invalid.14
Jones alleges, with some support, that she suffers,
and did at the time of her offenses and guilty plea, from posttraumatic stress disorder as a result of childhood abuse.
She
alleges further that trial counsel made no investigation of her
condition and thus failed to discover and develop viable
defenses based on it.
Because the record does not show what if
any investigation counsel conducted, she argues, it cannot be
said to refute conclusively her allegations.
Thus, she claims,
she is entitled at least to an evidentiary hearing.
No guilty-plea colloquy, of course, conclusively
establishes that defense counsel did his or her job.
That does
not mean, however, that one becomes entitled to an RCr 11.42
hearing merely by alleging that counsel failed to investigate.
One must allege facts sufficient to prove that counsel’s
decision to forego a defense or a line of investigation was
unreasonable in the circumstances and that a more thorough
investigation is reasonably likely to have led the claimant not
13
Id; Hodge v. Commonwealth, Ky., 68 S.W.3d 338 (2001); Norton
v. Commonwealth, Ky., 63 S.W.3d 175 (2001).
14
Kaufmann v. United States, 109 F.3d 186 (3rd Cir. 1997); Copas
v. Commissioner, 662 A. 2d 718 (Conn. 1995).
5
to plead guilty but to have insisted upon trial.15
The record
refutes Jones’s claim thus understood.
The record indicates that although no doubt painful
and debilitating in some respects, the mental condition Jones
alleges is not one likely to have excused either her assault or
her escape.
Indeed, the psychiatric associate who saw Jones in
1996 and again during her present incarceration stated that her
primary problem was substance abuse, of which she has a long
history.
There was insufficient evidence, the associate
believed, for any additional diagnosis.
Jones’s demeanor at the
plea colloquy, too, did not suggest that she suffers from the
sort of mental disability that would excuse her crimes.
That means that Jones, who had a multiple felony
record, a prior escape, and was accused of very nearly killing
someone by stabbing her in the abdomen, had to choose between
going to trial, where she could assert her mental condition as a
mitigating factor, but where she still faced the possibility of
being sentenced to thirty years in prison, or accepting the
Commonwealth’s offer of the minimum sentence for first-degree
assault and a total sentence less than half the maximum and
unenhanced by the persistent felony offender statutes.
Even if
counsel failed to investigate as thoroughly as she should have
15
Wiggins v. Smith, supra; Hill v. Lockhart, 474 U.S. 52, 88 L.
Ed. 2d 203, 106 S. Ct. 366 (1985).
6
done, a more thorough investigation is not reasonably likely to
have altered her advice or to have led Jones to insist upon a
trial.
The circuit court did not err, therefore, by denying
without a hearing Jones’s motion for RCr 11.42 relief.16
Nor did the court abuse its discretion by denying
Jones’s KRS-Chapter-31 request for funds for a psychiatric
examination.
Although we agree with Jones that Chapter 31
applies to “other post-conviction . . . proceedings”17 such as
those under RCr 11.42, RCr 11.42 is intended to give
incarcerated persons a means of asserting known grievances, not
a means of searching for grievances.18
Rarely, then, if ever,
will funds for investigative services be reasonably necessary in
an RCr 11.42 proceeding.
Here, because trial counsel’s decision
to forego a psychiatric exam is to be judged in light of the
information before counsel at the time, not in hindsight,19 we
agree with the circuit court that Jones’s RCr 11.42 motion did
not necessitate an exam.20
16
Hill v. Lockhart, supra.
17
KRS 31.110(2)(c).
18
Hodge v. Commonwealth, Ky., 116 S.W.3d 463 (2003); Haight v.
Commonwealth, Ky., 41 S.W.3d 436 (2001).
19
Wiggins v. Smith, supra.
20
McKinney v. Commonwealth, Ky., 60 S.W.3d 499 (2001) (claimant
must establish “reasonable necessity” for Chapter 31 funds.)
7
We also agree with Jones that KRS 31.185(2) would
require her request for funds to have been heard ex parte.
Whether that statute is valid or is an unconstitutional
legislative encroachment upon judicial practice is an
interesting question. But it is a question we need not reach
because even if the trial court erred by denying Jones’s request
for an ex parte hearing, the error was harmless given our
holding that Jones was not entitled to funds.
Accordingly, we affirm the August 14, 2003, order of
the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Brian Thomas Ruff
Assistant Public Advocate
LaGrange, Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
George G. Seelig
Frankfort, Kentucky
8
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