RUNYON (TERRY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 05-CR-00007
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
COMBS, CHIEF JUDGE: Terry Runyon appeals from an order of the Estill
Circuit Court that denied his RCr. 11.42 motion to vacate, set aside, or amend
judgment. In 2006, Runyon pled guilty to the charges of complicity to murder and
complicity to tampering with physical evidence. A charge of complicity for
robbery in the first degree was dropped. He is currently serving a twenty- year
Runyon’s claims are primarily based on his belief that his counsel was
ineffective. In reviewing a case filed pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42, our standard of review is governed by rules set forth by the
Supreme Court of the United States. That Court has prescribed a two-pronged test
describing the defendant’s burden of proof:
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 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.
Strickland v. Washington, 466 U.S. 668, 687 (1984), adopted in Kentucky by Gall
v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both criteria must be met in
order for the test to be satisfied. The Court also observed as follows:
The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.
Strickland, 466 U.S. at 694. The Strickland Court emphasized that reviewing
courts should assess the effectiveness of counsel in the light of the totality of the
evidence presented at trial and the fundamental fairness of the challenged
proceeding. Id. at 695-96.
The Supreme Court adopted the Strickland test in the contest of guilty
pleas in Hill v. Lockhart, 474 U.S. 52 (1985), holding that “in order to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Id. at 59. This test incorporates and
supplements the precepts of Boykin v. Alabama, 395 U.S. 238 (1969), concerning
the validity of a plea of guilty:
The standard . . . remains whether the plea represents a
voluntary and intelligent choice among the alternative
courses of action open to the defendant. That he would
not have pleaded except for the opportunity to limit the
possible penalty does not necessarily demonstrate that the
plea of guilty was not the product of a free and rational
choice, especially where the defendant was represented
by competent counsel whose advice was that the plea
would be to the defendant’s advantage.
North Carolina v. Alford, 400 U.S. 25, 31 (1970) (emphasis added). The Supreme
Court expounded upon the nature of a proper Boykin colloquy between a court and
a defendant entering a guilty plea, noting that the verbal exchange in court would
a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a
strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977), (citations omitted) (emphasis
In alleging ineffectiveness of counsel, Runyon claims that his attorney
did not produce mitigating evidence, that he coerced Runyon into pleading guilty,
that he neglected to seek recusal of the trial judge, and that he failed to request a
change of venue.
His allegations as to mitigating evidence and venue cannot be
properly considered by this court because Runyon did not raise the objections on
these issues at the trial level. An objection cannot be raised for the first time at the
appellate level. Ruppee v. Commonwealth, 821 S.W.2d 484, 486 (Ky. 1991);
Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976); Garrett v.
Commonwealth, 48 S.W.3d 6, 15 (Ky. 2001).
Runyon argues that his counsel should have filed a motion for the trial
judge to recuse himself because he had recused himself from the trial of Runyon’s
co-defendant. He alleges that the judge had stated: “[Co-defendant] is as guilty as
he is.” Appellant’s Brief at 3.
Kentucky Revised Statutes § 26A.015(2)(a) mandates that a judge
recuse himself if “he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceedings, or
has expressed an opinion concerning the merits of the proceeding.” The statute
also requires recusal if “he has knowledge of any other circumstances in which his
impartiality might reasonably be questioned.” KRS § 26A.015(e). A trial judge is
deemed to be in the best position to decide whether recusal is appropriate, and
appellate courts are hesitant to second-guess his decision. Jacobs v.
Commonwealth, 904 S.W.2d 416, 417 (Ky. App. 1997). An appellant has the
burden of proving that a judge is “prejudiced to a degree that [he] cannot be
impartial.” Brand v. Commonwealth, 939 S.W.2d 358, 359 (Ky. App. 1997). To
meet this burden of proof, an appellant must present “facts ‘of a character
calculated seriously to impair the judge’s impartiality and sway his judgment.’”
Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001), quoting Foster v.
Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961).
Runyon has not presented adequate evidence to meet this rather
weighty burden of proof. The fact that the trial judge disqualified himself from the
case of Runyon’s co-defendant (eleven months after Runyon’s case) cannot be
assumed to be a per se indication of prejudice in Runyon’s case. Runyon does not
present any facts demonstrating or even intimating that the judge was prejudiced or
biased toward him. The statement about the co-defendant’s guilt allegedly made
by the judge actually appears in the record as Runyon’s own statement. Trial
Record at 99. Because there is no evidence of the judge’s bias or prejudice
warranting a recusal, the trial court did not err in holding that Runyon’s counsel
was not ineffective for failing to file a motion for recusal.
Runyon also claims that his guilty plea was not entered knowingly,
intelligently, and voluntarily. He notes that his drug addiction was not being
treated in jail and that he was detoxing on his own at the time of pleading. He
alleges that the prosecutor took advantage of his impaired condition and coerced
the guilty plea. In his reply brief, Runyon relies on KRS 504.090, which directs
that “no defendant who is incompetent to stand trial shall be tried, convicted or
sentenced so long as the incompetency continues.”
In Kentucky, the standard of competency is “whether the defendant
has a substantial capacity to comprehend the nature and consequences of the
proceedings against him and to participate rationally in his defense.” Alley v.
Commonwealth, 160 S.W.3d 736, 739 (Ky. 2005).
We conclude that Runyon has failed to substantiate his claim of his
own incapacity. First, he stated on the record during the plea colloquy that he was
not “ill, or in any way impaired in [his] judgment, or . . . under the influence of
alcohol or narcotics or any other type of drug.” He has not produced any evidence
to overcome the “formidable barrier” created by this statement. Blackledge v.
Allison, 431 U.S. 63 at 73-74.
Second, at the time of Runyon’s guilty plea, he had been in custody
for thirteen months – sufficient time for his body to have been purged of drugs in
order for him to have the capacity to comprehend the legal proceedings. Our
Supreme Court has recently upheld a guilty plea by a movant who, at the time of
his plea, was actively on medication that produced visible physical effects.
Edmonds v. Commonwealth, 189 S.W.3d 558, 559-60 (Ky. 2006). Runyon has
failed to produce any evidence other than his own allegations that he was not
competent at the time of his guilty plea. We find no error in the ruling of the trial
court sustaining the plea.
Runyon next contends that the prosecutor improperly subjected him to
selective and vindictive prosecution because his co-defendant received a sentence
of only five years as contrasted with his sentence of twenty years. Runyon claims
that the disparity in the sentences violates his right to equal protection under the
Fifth and Fourteenth Amendments.
Claims of selective prosecution must refute the generalized
presumption that prosecutors do not violate Equal Protection. U.S. v. Armstrong,
517 U.S. 456, 464 (1996). In order for such a challenge to be successful, the
movant must prove by clear and convincing evidence that the prosecution had a
discriminatory effect and that it was the result of a discriminatory purpose. Id. at
465. While such claims generally involve allegations based on religion or race,
they can also pertain to those “similarly situated.” See Wayte v. U.S., 470 U.S. 598
(1985). For selective prosecution purposes, a person who is similarly situated is:
one who engaged in the same type of conduct, which
means that the comparator committed the same basic
crime in substantially the same manner as the defendant –
so that any prosecution of that individual would have the
same deterrence value and would be related in the same
way to the Government’s enforcement priorities and
enforcement plan – and against whom the evidence was
as strong or stronger than that against the defendant.
U.S. v. Smith, 231 F.3d 800, 810. Runyon’s situation does not meet any standard
for a selective prosecution claim. He and his co-defendant played entirely different
roles in the crime that resulted in disproportionate degrees of culpability. Thus,
imposition of different sentences had a rational basis and was not discriminatory in
any constitutional sense. The trial court did not err on this point.
Having found no error at all, we conclude that Runyon’s claim of
cumulative error is moot. We affirm the judgment of the Estill Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Terry Runyon, pro se
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General