TERRY G. MASSEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 14, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000407-MR
TERRY G. MASSEY
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 02-CR-00446
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Terry G. Massey, pro se, appeals from an
order of the Warren Circuit Court that denied his motion made
pursuant to CR1 60.02(e) and (f).
Massey sought to vacate or set
aside an earlier order that had denied a previous motion filed
pursuant to RCr2 11.42.
Both motions were based on the identical
claim that Massey had entered an involuntary guilty plea due to
ineffective assistance of counsel.
Massey contended that his
counsel had misinformed him regarding his parole eligibility,
1
Kentucky Rules of Civil Procedure.
2
Kentucky Rules of Criminal Procedure.
assuring him that he would be paroled in two-years’ time.
However, the violent offenders’ statute, KRS3 439.3401, requires
that he serve eighty-five percent of his ten-year sentence -- or
eight and one-half years -- prior to becoming eligible for
parole.
On June 15, 2002, Massey had been drinking heavily
when he drove through a stop sign in Bowling Green, Kentucky.
He struck another car and seriously injured two of the three
occupants, including a five-year-old boy whose scalp was nearly
severed.
Massey was indicted on numerous charges:
two counts
of assault in the first degree, wanton endangerment in the first
degree, operating a motor vehicle while under the influence of
alcohol, driving without an operator’s license, disregarding a
stop sign, driving without insurance, failing to wear a seat
belt, leaving the scene of an accident, and possessing an open
alcohol container.
Massey entered a plea of not guilty to the charges,
was released on bond, and was ordered by the court to begin a
recovery program for alcoholism at the New Start Halfway House.
A trial date was scheduled, but on January 29, 2003, Massey
entered a plea of guilty to all the charges (except the charge
of having no insurance, which was dismissed).
made no recommendation as to his sentence.
3
Kentucky Revised Statutes.
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The Commonwealth
At the sentencing
hearing on March 11, 2003, Massey was ordered to serve ten (10)
years, the minimum term for assault in the first degree, a class
B felony.
See KRS 508.010(2), KRS 532.060(2)(b).
The sentences
for all the other offenses were ordered to run concurrently.
He
was also informed that because he was a violent offender (as
defined in KRS 439.3401 to include any person who has pled
guilty to a class B felony involving serious physical injury to
the victim), he would not be eligible for parole until he had
served eighty-five percent (or 8.5 years) of his sentence.
On September 2, 2003, Massey filed a timely motion to
vacate, set aside, or correct judgment pursuant to RCr 11.42,
alleging that his guilty plea had been involuntary based on
ineffective assistance of counsel.
He explained that while he
was living at the halfway house, he had reported to drug court
every week and that a regular report on his progress was
provided to the court by halfway house officials.
He claimed
that Judge Lewis advised him and the other halfway house
residents that “if you do what I tell you to do and listen to
the people at the Halfway House, I will give you probation if
you are convicted.”
Massey also claimed that the halfway house
supervisor told Massey, his mother, and his wife that his
sentence would be probated as long as he stayed free of drugs or
alcohol while he was in the program.
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When his defense attorney, Ralph Beck, contacted him
in January 2003 about a plea agreement, Beck allegedly told
Massey that in almost all cases where Judge Lewis ordered a
recovery program and drug court, he probated the sentences.
Massey asked Beck when he would be released if he did not get
probation.
Beck replied that on a ten-year sentence, Massey
would be eligible for parole in two years and that the parole
board would probably release him since he was a first-time
offender.
Massey contended that he entered his plea of guilty
on the basis of what Beck had erroneously led him to believe in
this telephone conversation.
Massey also requested an
evidentiary hearing on his motion.
The circuit court denied the motion in an order
entered on November 21, 2003.
The court observed that:
during the sentencing hearing in this matter
. . . it was mentioned at least thirteen
(13) times that this defendant had pled
guilty to charges that bring him under the
violent offender statute, that he was not
eligible for probation or parole, and would
not be until he had served at least eightyfive percent of his sentence. (Emphasis
added.)
The court also ruled that the matter could be decided based on
the record and refused to grant an evidentiary hearing.
Massey did not appeal the denial of his motion.
Instead, on January 13, 2005, he filed a motion to vacate or set
aside the order pursuant to CR 60.02(e) and (f), making
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arguments identical to those presented in the earlier RCr 11.42
motion.
On February 17, 2005, the circuit court entered an
order denying this motion for relief, noting that Massey had
failed to pursue the proper remedy of appealing the order
denying the first motion.
Furthermore, the court found that
Massey did not present any argument on which the court could
base a finding that the judgment of the court was no longer
equitable or any other reason of an extraordinary nature
justifying relief.
The court also denied his motion for an
evidentiary hearing.
This appeal followed.
The record reveals that Massey’s plea colloquy was
properly conducted.
In addition to establishing that Massey
understood the rights that he was waiving by pleading guilty,
the judge meticulously explained that two counts of assault in
the first degree constituted class B felonies carrying a minimum
sentence of ten (and a maximum of twenty years) in a state
penitentiary.
He asked Beck whether he had gone over the
maximum and minimum sentences for each offense with his client.
He also inquired as to whether Massey understood that the
penalty would be set by the judge at sentencing and that the
victims would be allowed to testify at that time.
He then addressed Massey, asking whether he understood
that he had delegated to the judge his right to sentencing by a
jury:
“you have decided that I [rather than a jury] will decide
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the penalty.”
He also asked Massey whether he understood that
“you still might be sentenced [by the court] to forty-five years
in prison; that’s the maximum sentence, do you understand that?”
He asked whether anyone had promised Massey anything in return
for his guilty plea and whether Massey was satisfied that his
attorney had obtained for him the best deal that he could under
the circumstances, emphasizing that “we don’t know the final
deal.”
He inquired as to whether Massey knew that “the final
deal will be no more than forty-five years and a fine.”
Massey
answered all of these questions in the affirmative.
Failure to inform a defendant of parole eligibility
does not render a guilty plea involuntary under the rule of
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
Boykin does not mandate that a defendant
must be informed of a “right” to parole.
This is especially true since, unlike the
rights specified in Boykin, parole is not a
constitutional right. U.S. v. Timmreck, 441
U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634
(1979). . . . [A] knowing, voluntary and
intelligent waiver does not necessarily
include a requirement that the defendant be
informed of every possible consequence and
aspect of the guilty plea. A guilty plea
that is brought about by a person’s own free
will is not less valid because he did not
know all possible consequences of the plea
and all possible alternative courses of
action. To require such would lead to the
absurd result that a person pleading guilty
would need a course in criminal law and
penology.
-6-
Turner v. Commonwealth, 647 S.W.2d 500, 500- 501 (Ky.
App. 1982).
Massey emphasizes that he was actively misinformed by
Beck and that his mistaken belief motivated his decision to
plead guilty.
Federal case law from our own circuit holds that
“gross misadvice” concerning parole eligibility may constitute
ineffective assistance of counsel.
See Sparks v. Sowders, 852
F.2d 882 (6th Cir. 1988).
The circuit court noted in its first order that Massey
was repeatedly advised at the sentencing hearing that he would
have to serve eighty-five percent of whatever sentence he
received.
Beck also asked the court to consider reducing the
two charges of first-degree assault to second-degree assault, a
class C felony, so that Massey would be eligible for parole
sooner.
The judge refused to “back up on” the agreement or to
go back and change the deal, stating “I told him this day was
coming the whole time.”
Massey had already entered his plea of
guilty at this point.
We have carefully examined the record in this case and
are not persuaded that the court erred in its Boykin colloquy.
While there is a question as to advice of counsel and whether
Massey was so misinformed as to render his plea involuntary, the
record on its face establishes that the violent offender statute
and its mandatory eighty-five percent rule were mentioned “at
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least thirteen times” during his sentencing hearing.
Massey did
not interrupt the colloquy to inquire about the impact of the
statute on his sentence.
Most importantly, we are not at liberty to disregard
the procedure carefully established with respect to Boykin
matters.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983),
has set forth the procedural sequence as follows:
The structure provided in Kentucky for
attacking the final judgment of a trial
court in a criminal case is not haphazard
and overlapping, but is organized and
complete. That structure is set out in the
rules related to direct appeals, in RCr
11.42, and thereafter in CR 60.02. CR 60.02
is not intended merely as an additional
opportunity to raise Boykin defenses. It is
for relief that is not available by direct
appeal and not available under RCr 11.42.
The circuit court properly held that Massey should
have appealed the first order denying his RCr 11.42 motion
rather than resubmitting it in the form of a motion pursuant to
CR 60.02.
It is well-established that “CR 60.02 is not a
separate avenue of appeal to be pursued in addition to other
remedies, but is available only to raise issues which cannot be
raised in other proceedings.”
S.W.2d 415, 416 (1997).
McQueen v. Commonwealth, Ky., 948
Therefore, Massey’s claim of
ineffective assistance of counsel under CR 60.02 was
procedurally barred as it had already been raised in his RCr
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11.42 motion.
His only remedy would have been to pursue an
appeal from the denial of his RCr 11.42 motion.
The order of the Warren Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Terry G. Massey
Sandy Hook, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Robert E. Prather
Assistant Attorney General
Frankfort, Kentucky
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