JOHN BOSTON v. COMMONWEALTH OF KENTUCKY
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OCTOBER 28, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000669-MR
JOHN BOSTON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NOS. 01-CR-000939, 01-CR-002488, AND 02-CR-002543
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND REMANDING IN PART
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
BARBER, JUDGE:
On April 18, 2001, Appellant, John Boston
(Boston), was indicted in Jefferson County, Kentucky, on two
counts of robbery in the first degree, one count of burglary in
the first degree, one count of fleeing or evading the police in
the first degree, and one count of cruelty to animals in the
second degree in case number 01-CR-939.
Also named in this
indictment was Carl Roderick Bruce (Bruce).
The indictment stemmed from an incident on April 9,
2001, in which Anthony and Frieda Polio were robbed in their
home at gunpoint by two men wearing ski masks.
The Polios’ dog
was also killed by the assailants during the incident.
The
Polios were bound with duct tape in their bedroom then robbed by
the two armed men.
When finished, the two men left the home.
However, the two men quickly returned to the parties’ bedroom
because they were unable to open the Polios’ garage door.
The
two men released Mr. Polio (Polio) to open the garage door for
them.
After Polio opened the door, the two men left in his car.
Polio returned to his bedroom to free his wife so she could call
the police.
Polio then began a car chase with the two men.
During the chase, the two men changed cars 1 and Polio continued
to follow the other car.
Shortly thereafter, the local police
joined Polio in the chase.
At one point, the car slowed down
enough so that Bruce could jump out.
Bruce dropped a pillow
case containing evidence from the robbery of the Polios while
jumping from the automobile.
the police.
Bruce was quickly apprehended by
The driver continued to flee, later abandoning the
car and evading the police that evening.
While in police custody, Bruce implicated Boston as
his accomplice in the criminal acts against the Polios.
Also,
the police gathered Boston’s driver’s license and work photo
identification card attached to the keys in the ignition from
1
The two men got into the car of Boston’s sister, which Boston had borrowed
from her earlier.
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the automobile used by the two men.
Boston eluded the police
until May 2002.
On October 25, 2001, Boston, was indicted in Jefferson
County, Kentucky on a charge of persistent felony offender in
the first degree in case number 01-CR-2488 due to prior felony
convictions in the following Jefferson County cases 95-CR-1943
(receiving stolen property); 96-CR-1089 (three counts of
burglary in the third degree); 82-CR-797 (three counts of
robbery in the first degree, one count of burglary in the first
degree, and two counts of burglary in the third degree); and 82CR-509 (burglary in the first degree).
Case numbers 01-CR-2488
and 01-CR-939 were consolidated.
Boston accepted the Commonwealth’s offer to the
consolidated cases and entered a guilty plea on all charges on
June 23, 2003.
A Judgment and Conviction of Sentence was
entered on June 25, 2003, resulting in Boston receiving twenty
years for each count of robbery in the first degree; twenty
years for burglary in the first degree; five years for fleeing
or evading police in the first degree; and twelve months for
cruelty to animals in the second degree.
Each sentence was to
be served concurrently for a total of twenty years in the
penitentiary.
The twenty-year sentence was enhanced by the
persistent felony offender in the first degree charge to forty
years in the penitentiary.
This sentence was to also run
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concurrently with the sentence imposed in case number 02-CR2543, which is discussed below.
On November 13, 2002, Boston was indicted in Jefferson
County, Kentucky on four counts of robbery in the first degree,
two counts of burglary in the first degree, three counts of
burglary in the third degree, two counts of theft by unlawful
taking over $300, and persistent felony offender in the first
degree in case number 02-CR-2543.
The persistent felony
offender in the first degree charge was based on the same prior
offenses stated in case number 01-CR-2488.
The charges in this
indictment stemmed primarily from incriminating statements made
by Boston to the Louisville Police on May 10, 2002. 2
On June 23, 2003, Boston also accepted the
Commonwealth’s plea offer in case number 02-CR-2543.
Subsequently, the Jefferson Circuit Court entered a Judgment of
Conviction and Sentence on June 25, 2003.
Boston was sentenced
to twenty years for each count of robbery in the first degree;
twenty years for each count of burglary in the first degree;
twenty years for each count of burglary in the third degree 3 ; and
five years for each count of theft by unlawful taking over
$300.00 with each sentence to be served concurrently for a total
of twenty years in the penitentiary.
2
The twenty-year sentence
Included in the record is a waiver of rights form Boston signed on May 10,
2002, prior to making the statements to the police.
3
The Commonwealth’s plea agreement was for Boston to serve five years for
each count of burglary in the third degree.
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was enhanced by the persistent felony offender in the first
degree charge to forty years in the penitentiary.
As stated
earlier, this sentence was to run concurrently with sentences
imposed under cases 01-CR-939 and 01-CR-2488.
Boston now appeals the denial of his motions pro se
arguing that (1) the trial court abused its discretion and
clearly erred in denying his RCr 11.42 motion based upon
ineffective assistance of counsel and imposition of an
unauthorized sentence for each count of burglary in the third
degree; (2) the trial court erred in denying his RCr 11.42
motion without a finding of fact and conclusion of law pursuant
to CR 52; (3) the trial court erred in not granting him an
evidentiary hearing on his RCr 11.42 motion; and (4) the trial
court abused its discretion and clearly erred when it denied his
motion for transcript of proceedings to perfect his appeal.
Boston’s first argument is that the trial court abused its
discretion and clearly erred in denying his RCr 11.42 motion.
The crux of Boston’s RCr 11.42 motion is that he received
ineffective assistance of counsel and that the trial court
imposed an unauthorized sentence for each count of burglary in
the third degree.
Boston filed a series of pro se motions on
February 18, 2004, 4 which contained his motion to vacate or set
4
These motions were filed in all three cases: 01-CR-939, 01-CR-2488, and 02CR-2543.
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aside sentence pursuant to RCr 11.42 5 .
In case number 02-CR-
2488, the RCr 11.42 motion had a handwritten notation on the
final page that stated “Denied” and signed by the judge, which
had been stamped “entered” on February 20, 2004.
We will first
examine Boston’s ineffective assistance of counsel claims.
In order to prevail on a ineffective assistance of
counsel claim, Boston must satisfy the two-part test established
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37
(Ky. 1985), cert. denied, 478 S.W. 1010, 106 S.Ct. 3311, 92
L.Ed.2d 724 (1986), showing that counsel’s performance was
deficient and that the deficiency caused actual prejudice
affecting the outcome of the proceeding.
counsel’s performance.
First, we must analyze
Counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.
Strickland, supra 466 U.S. at 690.
Second, in order for a
defendant to show actual prejudice in the context of a guilty
plea, he 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.
Phon v.
Commonwealth, 51 S.W.3d 456, 459-460 (Ky.App. 2001), (citing
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88
5
Boston did not tender orders on any motion other than the order of
indigency, which was an Administrative Office of the Courts (AOC) form.
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L.Ed.2d 203 (1985)).
With these principles to guide us, we
address each of the ineffective assistance of counsel arguments
raised by Boston.
Boston argues that his trial counsel, Joy Kidwell 6 ,
coerced him to plead guilty in case number 02-CR-2543
involuntarily, unintelligently, and unknowingly to three counts
of third-degree burglary wherein he was sentenced to twenty
years on each count.
The plea agreement signed by Boston and
Ms. Kidwell stated that he agreed to serve five years for each
count of the burglary in the third degree.
However, the
Judgment of Sentence and Conviction sentenced Boston to twenty
years for each count of burglary in the third degree.
This
discrepancy will be discussed in greater detail later.
Boston also signed a motion to enter a guilty plea on June
23, 2003, which states in relevant part,
3. I have reviewed a copy of the indictment
and told my attorney all the facts known to
me concerning my charges. I believe he/she
is fully informed about my case. We have
fully discussed, and I understand, the
charges and any possible defenses to them.
7. In return for my guilty plea, the
Commonwealth has agreed to recommend to the
Court the sentence(s) set forth in the
attached “Commonwealth’s Offer on a Plea of
Guilty.” Other than that recommendation, no
one, including my attorney, has promised me
any other benefit in return for my guilty
6
Joy Kidwell was appointed through the Dept. of Public Advocacy.
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plea nor has anyone forced or threatened me
to plead “GUILTY.”
9. I declare my plea of “GUILTY” is freely,
knowingly, intelligently and voluntarily
made; that I have been represented by
counsel; that my attorney has fully
explained my constitutional right to me, as
well as the charges against me and any
defenses to them and that I understand the
nature of this proceeding and all matters
contained in this document.
Kentucky Rule of Criminal Procedure 11.42 requires that motions
must state specifically the grounds on which the conviction is
being challenged as well as state the facts relied on in support
of such grounds.
Stanford v. Commonwealth, 854 S.W.2d 742, 748
(Ky. 1993), cert. denied 510 U.S. 1049, 114 S.Ct. 703, 126
L.Ed.2d 669(1994); see also RCr 11.42(2).
Boston failed to
state specifically how he was coerced by Ms. Kidwell to plead
guilty to the burglary in the third degree charges contained in
02-CR-2543.
As such, we find no merit to his argument.
Boston also argues that Ms. Kidwell provided
ineffective assistance of counsel when she failed to notify him
that he would be sentenced to twenty years for each count of
burglary in the third degree in case number 02-CR-2543.
The
plea agreement signed by Ms. Kidwell and Boston clearly states
that Boston would serve five years for each count of burglary in
the third degree.
KRS 532.060.
This was in conformity with KRS 511.040 and
The discrepancy that occurred when the Judgment of
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Conviction and Sentence was entered will be discussed later in
this opinion.
Boston presented no proof that the discrepancy
was based upon any acts of Ms. Kidwell.
Ms. Kidwell advised
Boston what the correct sentence was and had him sign a plea
agreement which accurately reflected the same.
Therefore, we
find no merit to this argument.
Boston next argues that Ms. Kidwell failed to properly
investigate his cases prior to the entry of his guilty plea.
Specifically, Boston claims Ms. Kidwell failed to determine
whether he was in Texas 7 during the commission of the crimes and
to interview two alleged alibi witnesses of Boston, Shawn Brown
and Karen Rucker. 8
Defense counsel has an affirmative duty to make a
reasonable investigation for mitigating evidence or to make a
reasonable decision that a particular investigation is not
necessary.
Strickland, supra 466 U.S. at 691.
Based on the
record, Ms. Kidwell was persistent in gathering all evidence
available from the Commonwealth.
In case number 01-CR-939, there was evidence linking
Boston to the automobile driven by the two assailants 9 as well as
a statement from Bruce implicating Boston.
7
In case number 02-
Boston did not state in his RCr 11.42 motion when he was in Texas or submit
any proof of the same.
8
Boston did not submit affidavits of these two alleged alibi witnesses with
his RCr 11.42 motion.
9
Boston’s driver’s license and work photo identification card was attached to
the keys in the ignition.
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CR-2543, Boston implicated himself in these crimes during his
voluntary May 10, 2002 statement to the Louisville police.
Ms.
Kidwell did attempt to have Boston’s statement made to the
police suppressed in a motion filed February 13, 2003, but her
tendered order was not signed by the trial judge.
In any effectiveness of counsel case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.
at 691, 466 U.S. 668.
Strickland supra
Given the evidence and Boston’s prior
criminal record, we believe Ms. Kidwell’s decision not to
investigate Boston’s alleged alibis was reasonable.
Thus,
Boston failed to satisfy the first element of the Strickland
test.
Further, Boston failed to show actual prejudice by Ms.
Kidwell’s alleged failure to investigate in the context of his
guilty plea.
Boston stated that if his witnesses would have
been interviewed it could have easily been determined that
Boston’s version of events was credible.
In order to show
actual prejudice, there must be more than self-serving
statements provided by the movant.
that Boston has offered.
Unfortunately, that is all
As such, he failed to prove he was
prejudiced by Ms. Kidwell’s alleged failure to investigate and
thus, failed to satisfy the second element.
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Therefore, Boston
failed to satisfy either element of the Strickland test in
relation to this argument.
Boston’s last argument that he received ineffective
assistance of counsel is related to his persistent felony
offender in the first degree charge in case number 02-CR-2543.
Boston claims that he was not advised that an enhancement to
forty years’ imprisonment was impermissible.
We believe that he
was not advised of such, because it is incorrect.
Persistent
felony offender in the first degree sentencing is outlined in
KRS 532.080(6)(a) and allows for a sentence of no less than
twenty years nor more than fifty years or life imprisonment in
circumstances such as Boston’s. 10 Boston agreed to serve twenty
years, which is the minimum under the KRS 532.060.
As such, we
find no merit to this argument.
Based on the foregoing, we do not believe the trial
court abused its discretion or was clearly erroneous in denying
Boston’s RCr 11.42 motion based on an ineffective assistance of
counsel claim.
Boston’s next argument is that the trial court abused
its discretion and was clearly erroneous when it denied his RCr
11.42 motion based upon imposition of an unauthorized sentence
in case number 02-CR-2543.
The imposition of an unauthorized
sentence is an error correctable by appeal, by writ, or by
10
The majority of Boston’s crimes which he pled guilty to, i.e. Robbery in
the first degree and Burglary in the first degree, were Class B felonies.
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motion pursuant to RCr 11.42 or CR 60.02.
Myers v.
Commonwealth, 42 S.W.3d 594, 596 (Ky. 2001).
Boston’s plea
agreement specifically stated that Boston would serve five years
for each count of burglary in the third degree.
However, the
trial court sentenced Boston to twenty years for each count of
burglary in the third degree.
Boston properly points out that the sentence imposed
exceeds that maximum allowed under KRS 511.040 and KRS 532.060.
The trial court clearly stated that it found the plea to be
voluntary and accepted the plea in its Judgment of Conviction
and Sentence dated June 25, 2003. 11
Based on the court’s
acceptance of the plea agreement, we believe the subsequent
sentence imposed for the burglary in the third degree charges is
a clerical mistake.
See RCr 10.10.
As such, the trial court
shall correct Boston’s Judgment of Conviction and Sentence in
case number 02-CR-2543 to conform to the plea agreement the
trial court stated it accepted in its original Judgment and
Conviction of Sentence dated June 25, 2003.
Because we believe
the sentence imposed related to the burglary in the third degree
charges to be a clerical mistake, there was no reversible error
11
The Judgment stated: “The defendant on this date having appeared in open
Court with his attorney, by agreement with the attorney for the Commonwealth,
withdrew his plea of not guilty and entered a plea of guilty to: 1. Robbery,
First Degree – four (4) counts; 2. Burglary, First Degree - two (2) counts;
3. Burglary, Third Degree- three (3) counts; 4. Theft by Unlawful Taking over
$300.00 – two (2) counts; 5. Persistent Felony Offender, First Degree as
charged in the indictment and the Court having found the plea to be
voluntary, and having accepted the plea. . .” (Emphasis added.)
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committed by the trial court in relation to this issue.
Therefore, we do not believe the trial court abused its
discretion or was clearly erroneous in denying Boston’s RCr
11.42 motion based on a claim of imposition of an unauthorized
sentence.
Boston’s second basis of his appeal is that the trial
court erred in denying his RCr 11.42 motion without a finding of
fact and conclusion of law pursuant to CR 52.
The requirement
for findings by the trial court in RCr 11.42 proceedings is
contained in RCr 11.42(6) which states in relevant part, “At the
conclusion of the hearing or hearings, the court shall make
findings determinative of the material issues of fact and enter
a final order accordingly.”
No hearing was held by the trial
court on Boston’s RCr 11.42 motion.
then no findings are required.
If there is no hearing,
Stanford v. Commonwealth, 854
S.W.2d 742, 744 (Ky. 1993), cert. denied 510 U.S. 1049, 114
S.Ct. 703, 126 L.Ed.2d 669 (1994).
Therefore, the court did not
err in failing to prepare findings of fact and conclusions of
law in relation to Boston’s RCr 11.42 motion, because a hearing
was not held.
Boston’s third argument is that the trial court erred
in not granting him an evidentiary hearing for his RCr 11.42
motion.
A RCr 11.42 movant is not automatically entitled to an
evidentiary hearing.
Stanford supra, 854 S.W.2d at 743, (citing
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Skaggs v. Commonwealth, 803 S.W.2d 573 (Ky. 1990), cert. denied
502 U.S. 844, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991)).
A hearing
is required on a RCr 11.42 motion only if there is an issue of
fact which cannot be determined on the face of the record.
Stanford, supra 854 S.W.2d at 743-744.
In other words, if the
record refutes the claims of error, there is no basis for
granting an RCr 11.42 motion.
Id. at 743, (citing Glass v.
Commonwealth, 474 S.W.2d 400, 401, (Ky. 1971)).
In the
foregoing paragraphs, we were unable to substantiate any of
alleged errors proposed by Boston based upon the record, other
than the sentencing error previously discussed.
record refuted each error.
We believe the
There was no basis for the trial
court to hold an evidentiary hearing on the RCr 11.42 motion.
Therefore, the trial court did not err when it did not hold an
evidentiary hearing on Boston’s RCr 11.42 motion.
Boston’s final issue is that the trial court abused
its discretion and was clearly erroneous when it denied his pro
se motion for transcript of proceedings to perfect his appeal. 12
Boston filed his motion on February 26, 2004.
On the last page
of each motion contained in each case file, the trial judge
handwrote the following:
In case number 01-CR-939, the trial
judge handwrote “Denied”; in case number 01-CR-2488, the trial
judge handwrote “Denied, not specific, fishing expedition”; and
12
This motion was filed in all three cases under appeal: 01-CR-939, 01-CR2488, and 02-CR-2543.
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in case number 02-CR-2543, the trial judge handwrote “Denied,
not specific, no trial held.”
These orders of denial were
entered in each case on March 2, 2004.
In his motion, Boston requested a transcript of
proceedings to prepare and perfect his appeal, but does not
state which specific proceedings he is requesting or why he
needs them.
Boston also requested a transcript of the original
trial.
Boston pled guilty to all charges, thus no trial was
held.
No hearing was held in relation to Boston’s RCr 11.42
motion either.
Further, none of these transcripts were required
to perfect Boston’s appeal.
A trial court should not grant a motion that lacks
specificity.
It also should not grant a motion that cannot be
properly complied with due to impossibility.
Based on the
record, we cannot find that the trial court abused its
discretion nor was clearly erroneous in denying Boston’s pro se
motion for court transcripts.
For the reasons set forth above, we affirm the
Jefferson Circuit Court’s denial of Boston’s RCr 11.42 motion
and his pro se motion for transcript of proceedings to perfect
his appeal.
The case is remanded to the circuit court to
correct the clerical error concerning the sentence in case
number 02-CR-2543.
All other matters are affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Thomas Boston, Pro Se
Central City, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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