DELOACH (EDDY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 03-CR-00129
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
KELLER, JUDGE: This is an appeal from the Grant Circuit Court’s order denying
Eddy Deloach’s (Deloach) post-conviction motion to vacate his judgment of
conviction and sentence pursuant to Rules of Criminal Procedure (RCr) 11.42. For
the reasons set forth below, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On September 10, 2003, a Grant Circuit Court Grand Jury indicted
Deloach with Rape in the First Degree, based on evidence that the thirty-year-old
Deloach had engaged in sexual intercourse with a five-year-old girl. On August
11, 2004, the Grant Circuit Court accepted Deloach’s plea of guilty and on
September 29, 2004, Deloach was sentenced to thirty-five years’ imprisonment.
On May 15, 2007, Deloach filed a motion to vacate conviction and
sentence under RCr 11.42 and for appointment of counsel and an evidentiary
hearing. In support of his motion, Deloach alleged that counsel was ineffective.
Deloach also argued the judge should have recused and that he erred when he
accepted Deloach’s guilty plea. The circuit court denied Deloach’s motion on June
25, 2007, stating the issues raised were either clearly refuted by the record or were
issues that could not be raised in a motion under RCr 11.42. Deloach appeals from
STANDARD OF REVIEW
Deloach raises several issues that require a different standard of
review. Therefore, we will set forth the appropriate standard of review as we
analyze each issue.
Deloach argues in his brief that the circuit court judge erred when he
did not appoint counsel to represent Deloach in his RCr 11.42 action; when he did
not conduct an evidentiary hearing on Deloach’s RCr 11.42 motion; when he did
not rule on the merits of that motion; and when he did not recuse. Although the
preceding are the stated issues, it appears that Deloach’s primary issue is that he
received ineffective assistance of counsel prior to entering his guilty plea.
Therefore, we will address that issue first.
1. Ineffective Assistance of Counsel
The test for determining ineffective assistance of counsel on a guilty
plea is whether
counsel made errors so serious that counsel’s
performance fell outside the wide range of professionally
competent assistance; and ...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, 721 S.W.2d 726, 727-28 (Ky. App. 1986), citing Hill v.
Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 80 L.Ed.2d 203 (1985). Deloach
argues his counsel was ineffective for several reasons; we will address each in turn.
Deloach first argues counsel was ineffective because he failed to
appeal the trial court’s denial of his pre-trial motion to suppress his statements to
police and statements from jailhouse informants.
The entry of a valid guilty plea effectively waives all
defenses other than that the indictment charged no
offense. Further, a guilty plea constitutes a break in the
chain of events, and the defendant therefore may not
raise independent claims related to the deprivation of
constitutional rights occurring before entry of the guilty
Thompson v. Commonwealth, 147 S.W.3d 22, 39 (Ky. 2004). Because Deloach
pled guilty, he cannot now raise issues with regard to denial of these pretrial
motions to suppress.
Next, Deloach alleges that counsel failed to challenge the fact that he
was not properly Mirandized. However, counsel did file a motion to suppress
statements Deloach made to the police, arguing Deloach was not properly
Mirandized. The judge denied the motion, finding that Deloach was properly
Mirandized and that his waiver of the right to counsel was knowingly and
voluntarily made. Because counsel did move to suppress Deloach’s statements,
this allegation is unfounded.
Third, Deloach claims the Commonwealth did not provide him with
exculpatory evidence, i.e., medical reports of the examinations of the victim.
Those reports stated that no semen, blood, or hair were found on the victim’s
undergarments or in any of the samples taken at the hospital. However, the record
reveals that the Commonwealth filed a Supplemental Discovery and Inspection
stating that reports of examinations and tests had been provided to Deloach.
Therefore, the Commonwealth did provide the allegedly exculpatory evidence to
Deloach, and his argument to the contrary is without merit.
Deloach next argues that his counsel was ineffective because he failed
to challenge a search warrant that was issued based on the jailhouse informants’
testimony. As with Deloach’s pretrial motions, the right to challenge a search
warrant is waived upon a guilty plea. Sanders v. Commonwealth, 663 S.W.2d 216,
218 (Ky. App. 1984). Because Deloach pled guilty, he cannot now challenge the
issuance of the search warrant or the seizure of any evidence obtained with the
search warrant. Thompson, supra.
During the course of his case Deloach changed counsel. For his fifth
argument, Deloach alleges that the court erred when it refused to grant a
continuance requested by substitute counsel. However, Deloach has not set forth
with any specificity how the court’s denial of his request for a continuance harmed
Deloach. This allegation by Deloach is not one of ineffective assistance of counsel
but rather one of due process. It is not proper to raise this issue by way of an RCr
11.42 motion; it may only be raised on direct appeal. Because Deloach pled guilty,
he waived his right to direct appeal, and he cannot now raise this issue. Thompson,
supra. Furthermore, even if Deloach could raise this issue here, the denial of a
request for additional time is not necessarily a violation of the right to due process.
Collins v. Commonwealth, 392 S.W.2d 77, cert. denied 382 U.S. 881, 86 S.Ct. 171,
15 L.Ed.2d 121 (1965).
Sixth, Deloach argues the court erred by allowing the victim to testify
without a proper competency hearing. Initially, we note that Deloach pled guilty
prior to standing trial. Therefore, the victim did not testify. We presume that
Deloach is appealing the court’s order indicating the victim would be permitted to
testify. As noted above, this is not an issue regarding ineffective assistance of
counsel and is not the proper subject for an RCr 11.42 action. The propriety of a
judge’s ruling is an issue which must be raised on a direct appeal. As with the
other issues raised by Deloach, he waived the right to raise this issue when he pled
guilty. Thompson, supra.
Seventh, Deloach argues that counsel failed to challenge the “biased
and prejudicial results” of his psychiatric examination. As with the majority of
Deloach’s other arguments, he waived the right to make this argument by pleading
guilty. Thompson, supra.
Deloach next appears to argue that he should now be permitted to
withdraw his guilty plea and/or that the court should not have accepted that plea.
RCr 8.10 states that “[a]t any time before judgment, the court may permit the plea
of guilty . . . to be withdrawn . . . .” After judgment, a guilty plea can only be
withdrawn if the plea was made unwillingly or under circumstances of fear, deceit,
or coercion. Deloach does not point to any evidence that would lead to the
conclusion that he unwillingly entered a plea of guilty. In fact, prior to entering his
plea, Deloach testified he understood he was giving up his right to a trial and his
right to appeal. He further testified his judgment was not impaired in any way and
that his attorney had fully explained his plea to him. Therefore, it is clear from the
record that Deloach’s plea was valid and it cannot be set aside in this RCr 11.42
2. Entitlement to an Evidentiary Hearing
As set forth above, all of Deloach’s allegations of ineffective
assistance of counsel or other errors can be resolved by reference to the record.
Therefore, the court correctly denied Deloach’s motion for a hearing on his
3. Entitlement to Counsel
A defendant does not have a right to counsel in an RCr 11.42 action
when the issues raised can be resolved by reference to the record. Moore v.
Commonwealth, 199 S.W.3d 132 (Ky. 2006). The issues raised by Deloach can be
resolved by reference to the record; therefore, he has no right to counsel and the
court’s denial of his motion for counsel was correct.
3. Failure to Rule on the Merits of the RCr 11.42 Motions
Deloach argues that the court did not rule on the merits of his motions.
Although the court’s order denying Deloach’s motions is brief, it did rule on the
merits of those motions. While the court may not have ruled the way Deloach
would have preferred, it nonetheless ruled, which is all that is required.
4. Failure to Recuse
Post-conviction motions must aver facts with sufficient specificity to
permit a basis for relief. Lucas v. Commonwealth, 465 S.W.2d 267, 268 (Ky.
1971). Deloach does not specify what actions the circuit court judge took, other
than ruling adversely on his motions, that would constitute bias or prejudice
sufficient to warrant recusal. Therefore, we find no error in the circuit court
judge’s refusal to recuse.
As set forth above, we discern no error by the circuit court.
Therefore, we affirm.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Eddy Deloach, pro se
West Liberty, Kentucky
Tami Allen Stetler
Assistant Attorney General