RAYMOND SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 6, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002092-MR
RAYMOND SMITH
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, SPECIAL JUDGE
ACTION NO. 00-CR-00075
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MINTON, JUDGES.
BARBER, JUDGE:
Raymond Smith (Smith) brings this appeal from an
order of the Laurel Circuit Court, entered September 21, 2004,
summarily overruling his pro se motion to vacate the judgment
arising from his unconditional guilty plea to two counts of
capital murder, 1 two counts of complicity to commit kidnapping, 2
and one count of felony theft by unlawful taking, 3 pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42.
1
Kentucky Revised Statutes 507.020.
2
Kentucky Revised Statutes 502.020; 509.040.
3
Kentucky Revised Statutes 514.030.
Before us,
Smith asks for a remand to the circuit court for an evidentiary
hearing, arguing that the circuit court erred in failing to hold
an evidentiary hearing as to the involuntariness and
unknowingness of his guilty plea and effective assistance of
counsel relating specifically to whether counsel informed him of
the contents of a psychiatrist’s report.
We affirm.
Smith and three others were indicted for the December
20, 1999, kidnappings and murders by beating and stabbing of
Charles J. Deaton and Dorothy Raynard, the felony theft of
Deaton’s 1992 Plymouth Sundance automobile, and abuse of a
corpse.
Laurel Circuit Court Indictment No. 00-CR-00075.
Based
on the above indictments, the Commonwealth chose to seek the
death penalty.
Kentucky Revised Statutes (KRS) 532.025.
On May 22, 2000, the circuit court held a competency
hearing to comply with Gabbard v. Commonwealth, 887 S.W.2d 547,
551 (Ky. 1994).
A report prepared by Dr. Candace Walker, Staff
Psychiatrist, Kentucky Correctional Psychiatric Center (KCPC),
was placed in the record.
According to the report, Smith
indicated that on the day of the crimes, he and the three codefendants had drunk a gallon of gin and juice; smoked crack
cocaine, marijuana, and crank (methamphetamine); and taken
prescription opiate pain relievers.
While in town, one of the
four co-defendants discharged a shotgun and a stray ricochet
pellet allegedly hit an innocent woman in the leg.
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The police
were called.
The group hid the shotgun and went to hide from
the police.
Although the victims were not drinking, they had
smoked crack with the group.
Having convinced themselves that
the victims were going to turn them in to the police, the
defendants decided to kill them.
Smith remembered the ride to
the crime scene and the walk back to the car with blood on him.
According to the report, “(t)here was a great deal of ‘overkill’
(at the crime scene) in that the bodies appear to have been
damaged considerably after the victims were already dead.
Police reports indicate severe deforming of the skull in the
female victim and the absence of an eye in the male victim,
where the claw hammer had apparently been inserted to drag the
body.”
The report concluded that Smith was competent to stand
trial; and although he had no mental disease or defect and was
competent to stand trial, he had a substance and alcohol
dependence and an antisocial personality disorder.
On June 26, 2000, the court entered an order finding
Smith competent, indicating that “(a)fter lengthy discussion the
counsel for (Smith) stipulated that (he) was competent and the
report of Dr. Candace Walker . . . shall be entered into the
record, and the Court finds that all evidence indicates that
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(he) is, in fact, competent to stand trial and DOES HEREBY FIND
(him) competent to stand trial.” 4
On April 5, 2001, Smith appeared before the circuit
court and following an extensive colloquy pursuant to Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),
entered a guilty plea, pursuant to the Commonwealth’s offer, to
1) two counts of murder with recommendations on each of life
imprisonment without parole; 2) two counts of complicity to
commit kidnapping with recommendations on each of life
imprisonment without parole; 3) felony theft of a vehicle with a
recommendation of the maximum sentence of five years; and 4)
dismissal of the abuse of a corpse charge.
In addition to
waiving his constitutional rights under Boykin, Smith affirmed
1) the facts as stated in the indictment; 2) that he did not
suffer in the past or present from a mental disease or defect;
3) that he had no complaints with his attorney; and 4) that he
was pleading guilty freely and voluntarily.
At the colloquy,
Smith admitted that his signature was on the guilty plea
4
According to counsel’s comments at the motion day prior to the competency
hearing, counsel had requested an evaluation of Smith due to some harm he
caused himself while incarcerated. Pursuant to the evaluation, Smith was
receiving treatment and was responding well. On that motion day, the
discussion moved to the necessity of holding a competency hearing despite the
conclusion from Dr. Walker’s report that Smith was competent, and the lack of
any indication to the court otherwise that Smith had competency issues. Due
to the presence of the above two factors, defense counsel indicated that
under current law there was no need for a competency hearing and was willing
to stipulate to competency. Despite counsel’s arguments, the court scheduled
a competency hearing.
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pleadings, his signature affirming that “(t)he facts of the case
which establish my guilt are participation in kidnapping and
murder of C.J. Deaton and Dorothy Raynard, and theft of their
car.”
On May 22, 2001, Smith was sentenced pursuant to his
plea, the court further finding the existence of the aggravating
factors that neither victim was released alive, 5 and that Smith’s
acts of killing were intentional and resulted in multiple
deaths. 6
On May 21, 2004, Smith filed a pro se motion to vacate
and set aside the above convictions and sentences pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42.
In the
motion, Smith conceded that he participated in the crimes, was
not entitled to an insanity defense, and was competent to stand
trial.
Still, Smith raised three issues, the first two issues
alleging ineffective assistance of counsel for failure to
investigate or obtain an expert witness as to alleged mitigating
evidence of a mental disorder and intoxication as mentioned in
Dr. Walker’s report.
In making this claim, although Smith
contended that he never received a copy of Dr. Walker’s report,
he did indicate that the report was discussed with him one week
before he signed the plea agreement.
5
Kentucky Revised Statutes 509.040.
6
Kentucky Revised Statutes 532.025(2)(a)6.
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Smith lastly claimed in
his motion that his guilty plea was not knowing and voluntary as
based on counsel’s advice to plead guilty or be sentenced to
death.
As an alternative to vacation of his sentence, Smith
requested an evidentiary hearing and appointment of counsel.
On September 21, 2004, the circuit court summarily
overruled Smith’s RCr 11.42 motion in an eight-page order.
This
appeal followed.
Before us, although Smith presents three arguments, a
close reading indicates that he basically takes issue with the
failure of the circuit court to hold an evidentiary hearing on
his RCr 11.42 motion, contending that such a hearing was
required based on his allegation that counsel allegedly failed
to herself read or discuss Dr. Walker’s report with him, and
thus in turn allegedly failed to discuss mitigation of a
personality disorder and intoxication.
Having reviewed the
record, we disagree.
When the trial court has denied the request for postconviction relief without an evidentiary hearing, our inquiry is
whether the motion states grounds for relief that could not be
conclusively resolved from the face of the record, and which, if
true, would invalidate the conviction.
Baze v. Commonwealth, 23
S.W.3d 619, 622 (Ky. 2000).
Taking a look at whether Smith’s RCr 11.42 motion
states grounds for relief that could not be conclusively
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resolved from the face of the record, Smith alleges that counsel
was ineffective in not informing him of the contents of Dr.
Walker’s report, thusly causing him to be uninformed as to
mitigation of a personality disorder and intoxication when he
accepted the Commonwealth’s offer and pleaded guilty.
Despite
this allegation, the record contains Dr. Walker’s competency
evaluation of Smith, dated March 30, 2000, which indicated that
as a part of the evaluation Smith was told that a report for the
court would be prepared at the end of his stay at KCPC.
The
record also indicated that it was delivered to Smith’s counsel
upon completion, a fact that Smith does not dispute.
The fact
that Smith’s counsel was aware of and had read the motion is
apparent from discussion of the contents of the report between
the Commonwealth and counsel at the motion day before the
competency hearing, at which Smith was also present.
Furthermore, in his pro se RCr 11.42 motion, Smith admitted that
he, counsel, and Dr. Walker were present at the competency
hearing; and that Dr. Walker’s report was entered into the
record.
The latter is consistent with the court’s order finding
Smith competent.
Additionally, Smith’s motion stated that the
report was not discussed with him “prior to one week before he
signed the Plea agreement,” indicating that it was discussed
with him within a week of signing the plea.
Furthermore, during
his extensive guilty plea colloquy, Smith specifically affirmed
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that he did not suffer from a mental disease or defect, a
conclusion reached by Dr. Walker’s report, as well as
satisfaction with counsel in discussion of his case and plea.
Despite Smith’s conflicting allegations to the contrary that he
did not know the contents of Dr. Walker’s report, based on the
totality of the above from the record, we conclude that the
record refutes his allegation.
As such, the circuit court was
correct in not holding an evidentiary hearing as to Smith’s
claims of ineffective assistance of counsel and involuntary
guilty plea.
In so concluding it is important to note that as to
Smith’s claim of ineffective assistance of counsel and
involuntary guilty plea, the effect of entering a voluntary
guilty plea is to waive all defenses other than the indictment
charges no offense.
Centers v. Commonwealth, 799 S.W.2d 51, 55
(Ky.App. 1990); Quarles v. Commonwealth, 456 S.W.2d 693 (Ky.
1970).
As stated by the court in Centers, supra, as a guilty
plea constitutes a break in the chain of events the defendant
may not raise independent claims related to the deprivation of
constitutional rights occurring before entry of the guilty plea.
White v. Sowders, 644 F.2d 1177 (6th Cir. 1980).
Smith makes no
claim that the indictment herein failed to charge an offense.
Pursuant to Centers, then, Smith’s guilty plea waived
all defenses unless the plea was involuntary, which Smith
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essentially claims through his allegation of ineffective
assistance of counsel by counsel’s failure to advise him of the
contents of Dr. Walker’s report, specifically mitigation of a
personality disorder and intoxication.
Rigdon v. Commonwealth,
144 S.W.3d 283, 288-89 (Ky.App. 2004).
As stated in Rigdon,
supra:
In such an instance, the trial court is to
"consider the totality of the circumstances
surrounding the guilty plea and juxtapose
the presumption of voluntariness inherent in
a proper plea colloquy with a Strickland v.
Washington[, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984)] inquiry into the
performance of counsel." Bronk[v.
Commonwealth], 58 S.W.3d [482] at 486 (Ky.
2001) (footnotes omitted). To support a
defendant's assertion that he was unable to
intelligently weigh his legal alternatives
in deciding to plead guilty because of
ineffective assistance of counsel, he must
demonstrate the following:
(1) that counsel made errors so serious that
counsel's performance fell outside the wide
range of professionally competent
assistance; and (2) that the deficient
performance so seriously affected the
outcome of the plea process that, but for
the errors of counsel, there is a reasonable
probability that the defendant would not
have pleaded guilty, but would have insisted
on going to trial. Sparks v. Commonwealth,
Ky.App., 721 S.W.2d 726, 727-28 (1986).
Reviewing Smith’s claims under the analysis of
ineffective assistance of counsel pursuant to Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
and in the case of guilty plea, pursuant to Hill v. Lockhart,
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474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), it is clear
that he did not meet his burden of showing that counsel made
errors outside the range of competent performance, and that but
for counsel’s unprofessional errors, Smith would not have
pleaded guilty but would have gone to trial.
Smith’s allegation
of counsel error for failure to advise him of the contents of
Dr. Walker’s report and thus of possible mitigation is refuted
by the record.
Advising a client to plead guilty is not, in and
of itself, evidence of any degree of ineffective assistance of
counsel.
1983).
Beecham v. Commonwealth, 657 S.W.2d 234, 236-37 (Ky.
In this case, Smith and three co-defendants were each
looking at four potential death sentences in especially heinous
crimes when he accepted the Commonwealth’s offer of four
sentences of life without parole.
A review of the extensive
guilty plea colloquy and sentencing demonstrates Smith’s
admission to the facts as stated in the indictment and
understanding of the process.
It is difficult to believe that
based on the record there is a reasonable probability that Smith
would not have pleaded guilty but would have insisted on going
to trial.
For the foregoing reasons, the order of the Laurel
Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David Harshaw
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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