ROBERT STIVER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-001225-MR
ROBERT STIVER
v.
APPELLANT
APPEAL FROM OWEN CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 04-CR-00015
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND SCHRODER, JUDGES; MILLER, 1 SPECIAL JUDGE.
SCHRODER, JUDGE:
Robert Stiver appeals from an order of the
Owen Circuit Court which denied his motion for relief pursuant
to RCr 11.42 without holding an evidentiary hearing.
For the
reasons stated herein, we affirm in part, vacate in part, and
remand for an evidentiary hearing solely on the issue of
counsel’s alleged ineffectiveness for failing to investigate and
interview witnesses.
1
In all other aspects, we affirm.
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
On April 6, 2004, Stiver was charged with one count of
second-degree sodomy and being a first-degree persistent felony
offender.
Pursuant to a plea agreement, on August 10, 2004,
Stiver moved to enter a guilty plea.
Per the plea agreement,
Stiver would plead guilty in exchange for the Commonwealth’s
amending the second-degree sodomy charge to third-degree sodomy,
dismissal of the PFO I charge, and a recommended sentence of
eighteen months.
The trial court accepted the plea, and entered
orders amending the second-degree sodomy charge to third-degree
sodomy and dismissing the PFO I charge.
At final sentencing on
September 21, 2004, pursuant to the plea agreement, the trial
court sentenced Stiver to eighteen months’ imprisonment.
On January 17, 2005, Stiver, pro se, filed a motion
for relief pursuant to CR 60.02(c) and (f).
Following a hearing
thereon, the trial court denied the motion in an order entered
on January 31, 2005.
therefrom.
No appeal appears to have been taken
On April 6, 2005, Stiver, pro se, filed a motion
pursuant to RCr 11.42 to vacate his sentence and conviction,
along with motions for appointment of counsel and an evidentiary
hearing.
In the RCr 11.42 motion, Stiver specifically alleged
that his counsel was ineffective in that he failed to adequately
investigate his claims and failed to interview and secure the
attendance of exculpatory witnesses, and failed to request
discovery and move for a bill of particulars.
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In an order entered on May 23, 2005, the trial court
denied the motion for an evidentiary hearing on grounds that no
hearing was necessary as the allegations in the RCr 11.42 motion
were refuted on the face of the record, and that all material
issues of fact were determined on the face of the record.
In
the same order, the trial court denied the RCr 11.42 motion.
This appeal followed.
Stiver’s first allegation of ineffective assistance of
counsel raised in the RCr 11.42 motion is that counsel failed to
investigate the claims and failed to interview alibi witnesses.
The charge in this case stemmed from an allegation by the victim
(who is Stiver’s minor son) that Stiver had picked him up while
he (the victim) was walking to the grocery store, drove him to
his grandmother’s (Stiver’s mother’s) house, and there Stiver
forced him to engage in oral sex.
In the motion, Stiver argued
that counsel failed to investigate the fact that the pick-up
truck with which he was alleged to have abducted the victim was
not running during the time when the crime allegedly occurred.
Further, Stiver argued counsel was ineffective by failing to
speak to his mother, who would have stated that the crime could
not have happened because Stiver and the victim (her grandson)
were never in her apartment at the same time.
In support of the
RCr 11.42 motion, an affidavit of Stiver’s mother was attached
which stated the above.
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To prevail on a claim of ineffective assistance of
counsel on a guilty plea, the defendant must show that counsel’s
performance was deficient relative to current professional
standards and that, but for the deficient performance, there is
a reasonable likelihood that the defendant would not have pled
guilty and would have insisted on going to trial.
Hill v.
Lockhart, 474 U.S. 52, 106 S. Ct. 366, 808 L. Ed. 2d 203 (1985);
Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App. 1986).
On appeal, Stiver contends that the trial court erred
in denying his RCr 11.42 motion without holding an evidentiary
hearing.
Stiver argues that his grounds for relief contained
issues that were collateral to the record and could not be
adjudicated by reference to the record.
During the plea colloquy, the trial court did review
with Stiver the rights he was waiving by pleading guilty,
including the right to confront and cross-examine witnesses, and
“the right to subpoena your own witnesses in to tell your side
of it.”
Further, Stiver answered affirmatively when asked if he
had enough time to speak with counsel, if counsel had answered
all of his questions, and if he was satisfied with the help that
counsel had given him.
When asked if counsel had “looked into
the parts about your case you wanted him to look into for you”,
Stiver replied “He has.
He has very thoroughly investigated
it.”
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We first note that the effect of entering a voluntary
guilty plea is to waive all defenses other than that the
indictment charges no offense.
S.W.2d 51, 55 (Ky.App. 1990).
Centers v. Commonwealth, 799
Accordingly, Stiver’s guilty plea
waived all defenses unless the plea was involuntary.
Id.
“A
criminal defendant may demonstrate that his guilty plea was
involuntary by showing that it was the result of ineffective
assistance of counsel.”
288 (Ky.App. 2004).
Rigdon v. Commonwealth, 144 S.W.3d 283,
And, “[i]n such an instance, a 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 inquiry into the performance of counsel.”
(citations and quotation marks omitted).
Id.
“‘[G]enerally, an
evaluation of the circumstances supporting or refuting claims of
coercion and ineffective assistance of counsel requires an
inquiry into what transpired between attorney and client that
led to the entry of the plea, i.e., an evidentiary hearing.’”
Id., quoting Rodriguez v. Commonwealth, 87 S.W.3d 8, 11 (Ky.
2002).
An evidentiary hearing on an RCr 11.42 motion is
required where “there is a material issue of fact that cannot be
conclusively resolved, i.e., conclusively proved or disproved,
by an examination of the record.”
S.W.3d 448, 452 (Ky. 2001).
Fraser v. Commonwealth, 59
Having reviewed the record, in
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light of the affidavit from Stiver’s mother, in whose apartment
the crime was alleged to have occurred, we believe that the
allegation of counsel’s failure to interview Stiver’s mother is
a material one that cannot be resolved on the face of the
record.
The trial court’s order denying the RCr 11.42 motion
included no findings.
Accordingly, we conclude that the order
denying the RCr 11.42 motion must be vacated and the matter
remanded for an evidentiary hearing on the issue of whether
defense counsel needed to investigate or interview witnesses in
light of the guilty plea.
Stiver further contends that counsel was ineffective
for failing to request discovery or move for a bill of
particulars.
The record does not include any requests for
discovery or a motion for a bill of particulars.
However, the
record does contain the documents “First Discovery and
Inspection as Provided by the Commonwealth”, filed April 20,
2004, and “Supplemental Discovery and Inspection as Provided by
the Commonwealth”, filed on August 12, 2004.
Both documents
state that the Commonwealth is providing the discovery pursuant
to RCr 6.22, RCr 7.24, and RCr 7.26.
Pursuant to these rules,
the Commonwealth would have provided therein all discoverable
material, including witness statements and police reports, as
well as that which would have been supplied through a bill of
particulars (RCr 6.22).
Stiver has failed to show any
-6-
deficiency, nor prejudice as a result of this alleged error.
evidentiary hearing on this issue was required.
No
Fraser, 59
S.W.3d at 452.
Stiver finally contends that counsel was ineffective
for failing to inform him of the consequences of entering a
guilty plea to a sex offense, in particular, that the residency
restrictions were not explained to him.
This issue was not
raised in the RCr 11.42 motion, and hence, is not preserved for
our review.
Further, “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.”
Turner v. Commonwealth, 647 S.W.2d 500,
500-501 (Ky.App. 1982).
Again, no evidentiary hearing on this
issue was necessary.
For the aforementioned reasons, the order of the Owen
Circuit Court denying the RCr 11.42 motion is vacated as to the
sole issue of ineffective assistance of counsel for failure to
investigate and interview witnesses, and remanded for an
evidentiary hearing thereon.
As to all other issues, the order
of the Owen Circuit Court denying the RCr 11.42 motion is
affirmed.
-7-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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