MICHAEL T. FORD v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 18, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000093-MR
MICHAEL T. FORD
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 00-CR-00075
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
SCHRODER, TAYLOR, AND VANMETER, JUDGES.
VANMETER, JUDGE:
This is an appeal from an order entered by the
Laurel Circuit Court denying appellant Michael T. Ford’s motion
seeking CR 60.02(a) relief from a judgment of conviction.
For
the reasons stated hereafter, we affirm.
Ford pled guilty in March 2001 to two counts each of
kidnapping and complicity to murder, and he received four
sentences of life without the possibility of parole.
dismissed several other charges pending against him.
The court
In February 2003, Ford filed an RCr 11.42 motion
seeking to vacate the judgment against him on grounds of
ineffective assistance of counsel.
He later moved to supplement
his motion with additional grounds for relief.
On October 13,
2003, the court entered an order stating that Ford’s motion
raised “the issue of whether he possessed the requisite mental
competency to enter a valid plea of guilty.”
The court noted
that it previously had addressed the issue of competency and had
found that Ford “freely, voluntarily, knowingly and
intelligently” entered his plea without ever raising the issue
of his sanity.
Nevertheless, the court scheduled a “short
hearing” which was to be “strictly for the limited purpose of
obtaining testimonial evidence” from Ford, his trial counsel,
and the Commonwealth’s Attorney “as to exactly what knowledge
each of them possessed, prior to entering the guilty plea
herein, regarding Mr. Ford’s mental competency to stand trial or
to enter a plea of guilty,” and as to whether any of them “had
reason to form an opinion that Mr. Ford may have or may not have
been competent to enter a guilty plea, what that opinion was at
the time of the guilty plea, and whether it was based upon more
than mere speculation.”
After a limited hearing the trial court entered a
final order on October 31, 2003, denying Ford’s motions for
relief on all grounds.
More particularly, the court found that
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Ford stated on the record at the time of his guilty plea that he
did not suffer from a mental disease or psychiatric defect, and
that there was nothing in the record to indicate otherwise.
Further, during the hearing Ford’s trial counsel tendered a copy
of an evaluative psychiatric report, based on an interview
conducted several months before Ford entered his guilty plea,
which indicated that he fell into the average range of
intellectual functioning and that there were no “findings
suggestive of impairment” in Ford’s functioning “that would
provide a basis for a psychological-legal defense.”
The court
concluded that
any and all assertions made by the Movant as
they relate particularly to his claim of
incompetency are baseless and entirely
without merit or substance. In addition,
this Court finds that the Movant has failed
to demonstrate any actual prejudice that
would entitle him to any post-conviction
relief. Based upon [counsel’s]
representations and the tendered
Neuropsychological Evaluation, this Court is
of the opinion that the Movant Mr. Ford was
competent to stand trial or to enter into a
guilty plea herein.
On November 19, 2003, Ford filed a motion “pursuant to
CR 60.02(a) for the court to re-conduct its October 27, 2003
hearing with appointment of DPA counsel.”
On December 12 the
court denied the motion, noting that it was authorized to
exercise discretion in determining whether to award CR 60.02(a)
relief, and that Ford’s assertions lacked merit or substance.
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The court found that it was not obligated to grant the verbal
request Ford made during the RCr 11.42 hearing for the
appointment of counsel to represent him during that hearing, and
that in any event Ford was not prejudiced by the denial of the
request.
On January 13, 2004, Ford filed a notice of appeal
“from the ORDER denying RCr 11.42 Relief, that was entered on
December 15th, 2003.”
Despite the statement in Ford’s notice of appeal that
RCr 11.42 relief was denied on December 15, the order denying
such relief in fact was entered on October 31, 2003.
The notice
of appeal filed on January 13, 2004, therefore was not timely
since it was not filed within thirty days “after the date of
entry of the judgment or order from which it [was] taken.”
Moreover, it cannot be said that the time for filing the notice
of appeal was stayed by the filing of Ford’s motion seeking CR
60.02 relief, as the running of time for filing an appeal from a
final judgment may be stayed only by a timely motion for a new
trial or to alter, amend or vacate a judgment.1
Even if we were
persuaded by Ford’s argument that his pro se motion for CR 60.02
relief should be treated as a motion to alter the judgment which
stayed the running of time for appeal, his appeal still could
not be considered timely since not even the CR 60.02 motion was
1
See CR 73.02(1)(e), applicable to criminal cases by virtue of RCr 13.04,
which permits the abatement of the running of time for appeal only upon the
timely filing of a motion pursuant to CR 50.02, 52.02, or 59.
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filed within the requisite ten-day period after entry of the
order denying RCr 11.42 relief.
Thus, Ford’s appeal from the
trial court’s denial of RCr 11.42 relief was not timely, and the
issues raised in that motion are not properly before us on
appeal.
Finally, Ford would not be entitled to relief even if
we treated his pro se notice of appeal as having been intended
to apply to the order denying CR 60.02(a) relief.
Ford alleged
in his CR 60.02 motion that the trial court should have granted
his oral request to appoint counsel to represent him during the
RCr 11.42 evidentiary hearing which addressed his mental
competency to enter a guilty plea.
However, RCr 11.42(5)
specifically provides that a trial court need not appoint
counsel to represent a movant in an RCr 11.42 proceeding unless
that movant requests such an appointment by a “specific written
request.”2
Here, such a written request was not made.
Further,
since Ford’s trial counsel testified and produced evidence to
show that the psychological and neuropsychological evaluation
conducted before Ford entered his guilty plea did not support a
psychological defense, there is nothing to suggest that Ford was
prejudiced by the court’s failure to appoint counsel to
represent him during the RCr 11.42 hearing.
Thus, it is clear
from the record that there was no “mistake, inadvertence,
2
See also Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky. 2001).
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surprise or excusable neglect”3 which would entitle Ford to
relief herein, and the trial court did not abuse its discretion
by denying his motion for CR 60.02 relief.
The court’s order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marguerite Neill Thomas
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
3
CR 60.02(a).
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