ROBERT CHARLES MOLLOY, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 13, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001054-MR
ROBERT CHARLES MOLLOY, JR.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 99-CR-002679
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY, JOHNSON, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Robert Charles Molloy, Jr., pro se, has
appealed from the April 21, 2005, order of the Jefferson Circuit
Court which denied his pro se motion to vacate or to correct the
trial court’s final judgment and sentence of imprisonment
pursuant to RCr1 11.42, without holding an evidentiary hearing.
Having concluded that the trial court did not err in denying
1
Kentucky Rules of Criminal Procedure.
Molloy’s claims without holding an evidentiary hearing, we
affirm.
On November 3, 1999, Molloy was indicted by a
Jefferson County grand jury for murder.2
The indictment arose
from an incident in which Molloy shot the victim, Toby Wayne
Antone, twice in the back of the head, left Antone’s body at his
apartment, and fled to Ohio.
A jury trial commenced on May 15, 2001.
Due to some
inappropriate questions posed by the Commonwealth during voir
dire, the trial court granted defense counsel’s request for a
mistrial.
Thereafter, on that same date, Molloy entered into a
plea agreement with the Commonwealth, pursuant to North Carolina
v. Alford,3 in exchange for a recommended sentence of 30 years in
prison.
Molloy waived his right to a presentence investigation
report and separate sentencing hearing, and the trial court
accepted Molloy’s guilty plea and sentenced him in accordance
with the plea agreement.
The trial court entered its final
judgment and sentence on May 23, 2001.4
2
Kentucky Revised Statutes (KRS) 507.020.
3
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). A defendant pleading
guilty under Alford refuses to admit his guilt, but acknowledges that the
Commonwealth can present sufficient evidence to support a conviction. An
Alford plea “is a guilty plea in all material respects.” United States v.
Tunning, 69 F.3d 107, 111 (6th Cir. 1995).
4
On November 16, 2001, Malloy filed a motion for shock probation, which the
trial court denied on December 13, 2001.
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Three years later, on May 13, 2004, Molloy filed a pro
se motion to vacate or to correct his sentence pursuant to RCr
11.42, as well as a motion for appointment of counsel and a
request for an evidentiary hearing.
The Commonwealth did not
file a response to Molloy’s RCr 11.42 motion.
On April 21,
2005,5 the trial court entered its memorandum and order denying
Molloy’s RCr 11.42 motion and his request for counsel, without
holding an evidentiary hearing.
This appeal followed.
Molloy argues on appeal (1) that his plea was not
entered into knowingly because he was not competent to enter
into a plea agreement, and (2) that trial counsel was
ineffective for failing to investigate Molloy’s entitlement to a
sentencing exemption pursuant to KRS 439.3401(5)6 and KRS
5
There is no indication in the record as to why nearly one year passed before
the trial court entered its order denying Molloy’s RCr 11.42 motion.
6
KRS 439.3401(3) and (5) state as follows:
(3)
A violent offender who has been convicted
of a capital offense or a Class A felony
with a sentence of a term of years or
Class B felony who is a violent offender
shall not be released on probation or
parole until he has served at least
eighty-five percent (85%) of the sentence
imposed.
. . . .
(5)
This section shall not apply to a person
who has been determined by a court to
have been a victim of domestic violence
or abuse pursuant to KRS 533.060 with
regard to the offenses involving the
death of the victim or serious physical
injury to the victim. . . .
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533.060.7
Molloy also contends the trial court erred in failing
to conduct an evidentiary hearing on his RCr 11.42 motion.
In order to be constitutionally valid, a guilty plea
must be entered knowingly, intelligently, and voluntarily.8
RCr
8.08 requires a trial court to determine at the time of the
guilty plea “that the plea is made voluntarily with
understanding of the nature of the charge.”9
7
“[T]he validity of
KRS 533.060 states as follows:
(1)
When a person has been convicted of an
offense or has entered a plea of guilty
to an offense classified as a Class A, B,
or C felony and the commission of the
offense involved the use of a weapon from
which a shot or projectile may be
discharged that is readily capable of
producing death or other serious physical
injury, the person shall not be eligible
for probation, shock probation, or
conditional discharge, except when the
person establishes that the person
against whom the weapon was used had
previously or was then engaged in an act
or acts of domestic violence and abuse as
defined in KRS 403.720 against either the
person convicted or a family member as
defined in KRS 403.720 of the person
convicted.
8
Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235
(1973); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969); Woodall v. Commonwealth, 63 S.W.3d 104, 132 (Ky. 2002); Haight v.
Commonwealth, 760 S.W.2d 84, 88 (Ky. 1988).
9
See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (stating that “[a]
guilty plea is invalid if the defendant does not understand the nature of the
constitutional protection that he is waiving or if he has such an incomplete
understanding of the charges against him that his plea cannot stand as an
admission of guilt” [citations omitted]). See also Bronk v. Commonwealth, 58
S.W.3d 482, 486 (Ky. 2001).
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a guilty plea is determined . . . from the totality of the
circumstances surrounding it.”10
We have reviewed the guilty plea colloquy, and the
trial judge was very thorough in advising Molloy of his
constitutional rights and allowing Molloy to speak.11
Additionally, the record contains a preprinted form styled
“Motion to Enter Guilty Plea Pursuant to North Carolina v.
Alford.”
Molloy signed the form indicating his acknowledgment
and understanding of the following statements:
(1) “Pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970), I wish to plead
‘GUILTY’ in reliance on the attached ‘Commonwealth’s Offer on a
Plea of Guilty.’
In so pleading, I do not admit guilt, but I
believe the evidence against me strongly indicates guilt and my
interests are best served by a guilty plea[;]”12 and (2) “I
declare my plea of ‘GUILTY’ is freely, knowingly, intelligently
10
Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978) (citing Brady v.
United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).
11
The guilty plea hearing lasted approximately 10 minutes. The trial judge
spoke directly to Malloy, who specifically acknowledged that he was not under
any illness that would affect his ability to enter a guilty plea at that
time. He stated to the trial court, when asked, that he had had an
opportunity to discuss his plea with his attorney and had reviewed the guilty
plea documents with his counsel prior to signing them. He stated that he
understood the recommended sentence was 30 years and that by entering the
guilty plea he was waiving his right to trial by a jury and to present his
own version of the case.
12
The Commonwealth’s Attorney specifically stated at the guilty plea hearing
what evidence would be introduced at trial in the case to prove the charge of
murder. Molloy verbally acknowledged he understood this in front of the
trial judge when entering his guilty plea.
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and voluntarily made, that I understand the nature of this
proceeding and all matters contained in this document.”
On May 15, 2001, when Molloy entered his plea of
guilty pursuant to Alford, the trial court carefully reviewed
with him and his attorney the charge for which he was indicted,
the possible penalties he faced under that charge, and the
sentence recommended by the Commonwealth.13
Molloy participated
in a lengthy plea colloquy in which he assured the trial judge
that he had not been threatened, forced, or coerced to plead
guilty.
He acknowledged that he was aware of the constitutional
rights he was giving up by pleading guilty.
He also indicated
that he understood the meaning of an Alford plea.
The United States Supreme Court set out the standard
for ineffective assistance of counsel in Strickland v.
Washington,14 as follows:
First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
13
The only time during the plea colloquy that Molloy posed a question was
when the trial judge began to discuss the fact that Molloy would be sentenced
under KRS 439.3401(3), the violent offender statute. Molloy asked his
attorney if the trial judge was referring to him having to serve 85% of his
sentence, to which his attorney answered in the affirmative. Molloy then
indicated to the trial judge that he understood why he was being sentenced as
a violent offender and that he understood that he would have to serve 85% of
the 30-year sentence before being eligible for parole.
14
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
-6-
prejudiced the defense. This requires
showing that counsel’s errors were so
serious as to deprive the defendant of a
fair trial, a trial whose result is
reliable. Unless a defendant makes both
showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
This standard also applies to the guilty plea
process.15
“[T]he voluntariness of the plea depends on whether
counsel’s advice ‘was within the range of competence demanded of
attorneys in criminal cases’” [citation omitted].16
When
reviewing trial counsel’s performance, this Court must be highly
deferential and we should not usurp or second-guess counsel’s
trial strategy.17
“[A] court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy’” [citations
omitted].18
“[I]n order to satisfy the ‘prejudice’ requirement,
the defendant must show that there is a reasonable probability
15
Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
16
Id. 474 U.S. at 56.
17
Strickland, 466 U.S. at 689.
18
Strickland, 466 U.S. at 689.
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that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.”19
Molloy first argues that his due process rights were
violated when he entered into a guilty plea because he was not
competent to do so.
We find this argument to be without merit.
The record reveals that on November 22, 1999, trial counsel
filed a motion for a determination of competency.
On December
1, 1999, the trial court ordered Molloy to undergo psychiatric
treatment at the Kentucky Correctional Psychiatric Center
(KCPC).
Molloy was transferred from the Jefferson County Jail
to the KCPC for a 60-day period of treatment and evaluation.
On
motion of the Commonwealth, the trial court entered an order on
February 1, 2000, returning Molloy to the KCPC for a
determination of his competency to stand trial.
entered a similar order on March 16, 2000.
The trial court
On April 27, 2000,
trial counsel filed a motion stating that Molloy had not been
transferred to the KCPC for evaluation pursuant to the trial
court’s February 1, 2000, order, and requested that Molloy’s
transfer to the KCPC be expedited so that he could receive
proper treatment and evaluation.
On May 5, 2000, the KCPC filed
an acknowledgment of receipt of the order of evaluation, and
Molloy was transported to the KCPC for evaluation and treatment.
19
Hill, 474 U.S. at 59.
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On July 6, 2000, trial counsel filed a motion
requesting that Molloy be allowed to remain at the KCPC for an
additional 60 days.
12, 2000.
The trial court granted the motion on July
Thereafter, the trial court entered an order on
August 4, 2000, extending Molloy’s stay at the KCPC until
September 15, 2000.
On September 13, 2000, trial counsel again
requested an additional 60-day stay at the KCPC for Molloy,
which the trial court granted, thereby extending Molloy’s stay
at the KCPC until October 13, 2000.
On September 26, 2000, Dr. Victoria Yunker, Molloy’s
treating psychiatrist at the KCPC, sent a letter to the trial
court stating that Molloy could be discharged from the KCPC.20
The letter indicated that Molloy’s treatment was successful and
that Molloy needed to remain on medication for high blood
pressure, panic disorder, and depression.
However, nothing in
the letter indicated that Molloy’s recommended treatment was
necessary for Molloy to remain competent.
The trial court
entered an order on October 2, 2000, discharging Molloy from the
KCPC and returning him to the Jefferson County Jail.
On December 6, 2000, Molloy sent a letter to the trial
court, informing it that his medication was not being
20
Yunker also sent a letter on August 3, 2000, but it said nothing about
Molloy’s competency.
-9-
administered by the jail personnel.21
letter on January 4, 2001.22
Molloy sent a second
On April 19, 2001, trial counsel
filed a motion for psychiatric treatment at the KCPC because
Molloy was not receiving his medication.
On May 2, 2001, the
trial court ordered Molloy transferred to the KCPC until May 12,
2001.
On the day of trial, defense counsel informed the
trial court that Molloy had never been sent to the KCPC as
ordered and requested a continuance.
The Commonwealth opposed a
continuance noting that Molloy had already been found competent
to stand trial and was not entitled to continual psychiatric
evaluation.
The trial court denied the request for a
continuance, in part, because Molloy was being sent back to the
KCPC for treatment, not evaluation.
Once the parties reached a plea bargain, the trial
judge went through a lengthy plea colloquy with Molloy.
The
judge noted that Molloy had an extensive education and by his
own admission was pursuing a PhD.
In the videotaped
proceedings, it is apparent that Molloy’s demeanor is alert and
rational.
He had multiple opportunities to speak during the
21
The record contains notes from the jail personnel and the notes state that
on October 21, 2000, Molloy was found “hoarding” some of his medications,
i.e., Klonopin, and he was charged with promoting dangerous contraband in the
first degree. KRS 520.050.
22
At some point in this case, the trial court sent a memorandum to
Metropolitan Corrections Department Chief, Mike Horton, stating that Molloy
should be given his medications as prescribed.
-10-
plea colloquy.
The only question Molloy raised during this time
was addressed to his attorney regarding the violent offender
statute and his understanding that he would have to serve 85% of
the 30-year sentence before being eligible for parole.
We agree
with the trial court in its denial of RCr 11.42 relief, that
even if Molloy was not receiving proper medications, it did not
seem to interfere with his ability to participate in the plea
colloquy or to enter into a plea agreement.
We cannot conclude
that Molloy’s actions or answers during the plea colloquy and
sentencing were those of an incompetent person.
Without some
evidence to support his claim, it is nothing more than a bare
allegation which does not entitle Molloy to an evidentiary
hearing.23
Molloy’s claim that he was entitled to a sentencing
exemption under KRS 439.3401(5) and KRS 533.060 is also without
merit.
Molloy states that at the time of the shooting the
victim was sexually abusing Molloy’s then 15-year-old son, Jeff
Molloy.
Molloy attached an affidavit signed by his son to his
RCr 11.42 motion.
Accordingly, Molloy claims that he was
entitled to be found a victim of domestic violence, which would
preclude the trial court from sentencing him as a violent
offender and require him to serve 85% of his 30-year sentence
before being eligible for parole.
23
Brooks v. Commonwealth, 447 S.W.2d 614, 617 (Ky. 1969).
-11-
This Court has reviewed the entire record provided in
this case.
When Molloy was initially interviewed by the police
he stated that he killed Antone because of emotional reasons.
On October 31, 1999, the police interviewed Jeff, who stated
that he got along with Antone.
The police asked Jeff why he
thought his father was stressed and he stated because of work.
On November 16, 2001, Molloy filed a motion for shock probation,
in which he quoted the exemption statute, and requested an
evidentiary hearing.
However, he never mentioned any factual
basis for his qualifications for the exemption.24
This argument
was first presented to the trial court when Molloy filed his RCr
11.42 motion on May 13, 2004, which occurred three years after
the trial court entered its final judgment. Attached to the
motion are affidavits from both Molloy and Jeff setting out the
alleged sexual abuse of Jeff by Antone.
Mere conclusory
allegations, unsupported by specific facts, are insufficient to
require the trial court to grant an evidentiary hearing on the
issue.25
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
24
He refers to Jeff in the motion and discusses how his incarceration has
affected Jeff, but never mentions anything about sexual abuse.
25
See Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002).
Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998).
-12-
See also
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert C. Molloy, Pro Se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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