GREEN (KENNETH E.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
KENNETH E. GREEN
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
INDICTMENT NO. 03-CR-00051
COMMONWEALTH OF KENTUCKY
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BEFORE: DIXON, LAMBERT AND THOMPSON, JUDGES.
DIXON, JUDGE: Appellant, Kenneth E. Green pro se, appeals from an order of
the Estill Circuit Court denying his motion for post-conviction relief pursuant to
RCr 11.42. Finding no error, we affirm.
In September 2003, Appellant was indicted by an Estill County grand
jury for murder, stemming from the shooting death of Larry Collett. Appellant was
subsequently indicted on one count of complicity to tampering with physical
evidence in connection with Collett’s death. On March 15, 2005, Appellant filed a
motion to enter a guilty plea in reliance on a plea offer from the Commonwealth,
wherein Appellant would plead guilty to an amended charge of first-degree
manslaughter, as well as complicity to tampering with physical evidence in
exchange for recommended sentences of twelve years and four years respectively,
with the sentences to run concurrently.
On April 7, 2005, the trial court held a sentencing hearing, during
which Appellant was represented by two attorneys. Following a brief colloquy,
Appellant was sentenced in accordance with the plea agreement – i.e., twelve years
on the manslaughter charge and four years on the tampering charge, with the
sentences to run concurrently for a total of twelve years’ imprisonment.
On September 19, 2006, Appellant filed a pro se RCr 11.42 motion
seeking to have his sentence corrected. Appellant claimed that pursuant to the plea
agreement, he was to have been sentenced to ten years on the manslaughter charge
and four years on the tampering charge. Appellant alleged that both the transcript
of the sentencing hearing and the judgment had been altered to reflect a twelve
year sentence rather than the ten years he accepted.
On February 7, 2007, the trial court entered an order denying
Appellant RCr 11.42 relief without an evidentiary hearing. Therein, the court
The timeline and the facts in the record flush out the
1. March 15, 05 – Motion to Enter Guilty Plea filed by
[Appellant] in reliance on the Commonwealth’s offer
which stated “a sentence of 12 years . . .” This figure is
clearly altered and, at first would give some merit to
[Appellant’s] claim if not for subsequent documents.
2. March 15, 05 – The Court’s colloquy between
[Appellant] and his TWO lawyers clearly shows the deal
that was made between the parties. The Court asks:
What is your understanding of the Prosecutor’s
recommendation as to the sentence or punishment
imposed will be? The response, which was signed by
[Appellant] and his attorney Rowady, states, “12 years
Manslaughter, 4 years Tampering, concurrent.”
3. April 7, 2005 Sentencing transcript – The Assistant
Commonwealth’s Attorney, Phillip Owen, [Appellant’s]
attorney Hon. Thomas K. Hollon, and the trial judge all
three state on separate occasions that the sentence was 12
years and [Appellant] is sentenced by the trial judge to
the exact amount of time set out in the offer of the
Commonwealth and to exact amount of time in the
Court’s colloquy signed by [Appellant].
The trial court thereafter dismissed Appellant’s motion. This appeal ensued.
On appeal to this Court, Appellant argues that he was told that a tenyear sentence and a four-year sentence run concurrently equaled a twelve-year
sentence. Appellant claims that had he been aware that the two sentences
concurrently totaled twelve years rather than ten years, he would have brought it to
the court’s attention at the sentencing hearing. Further, Appellant again alleges
that the transcript of the sentencing hearing has been altered and implores this
Court to review the audio tape of the hearing which he contends reflects the truth.
A hearing on an RCr 11.42 motion is only required if there is an issue
of fact that cannot be determined on the face of the record. RCr 11.42(5); Bowling
v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026
(1999). When a trial court denies a motion for an evidentiary hearing, appellate
review is limited to whether the motion on its face states grounds that are not
conclusively refuted by the record, and which, if true would invalidate the
conviction. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986).
There is absolutely no factual basis in the record to support
Appellant’s allegations. The trial is correct that it does appear the
Commonwealth’s plea offer was altered. However, the offer was evidently faxed
or photocopied, resulting in a portion of the right-hand side of the document
becoming illegible. The “alteration” appears to be nothing more than an attempt to
write in what was originally there. Certainly, there is no indication that the
sentence was altered from ten to twelve years.
Furthermore, as noted by the trial court, Appellant was represented by
two attorneys during the proceedings and the transcribed hearing of their
conversation with the court and the Commonwealth unquestionably contradicts his
claim that the sentence was only ten years. As the record clearly refutes all of the
claims raised in Appellant’s RCr 11.42 motion, the trial court did not error in
dismissing the motion without an evidentiary hearing. Bowling, supra.
The order of the Estill Circuit Court denying Appellant postconviction relief pursuant to RCr 11.42 is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth E. Green, Pro Se
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General