COX (RODGER LEE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 24, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000237-MR
RODGER LEE COX
v.
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGLAS M. GEORGE, JUDGE
ACTION NO. 04-CR-00245
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: KELLER AND THOMPSON, JUDGES; HARRIS,1 SENIOR JUDGE.
KELLER, JUDGE: Rodger Lee Cox (Cox) filed a Kentucky Rule of Criminal
Procedure (RCr) 11.42 motion arguing that his trial counsel had been ineffective.
Just prior to the hearing on that motion, Cox agreed to dismiss it. Approximately
two years later, Cox filed a motion to reinstate his RCr 11.42 motion. The trial
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Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
court denied that motion and Cox appeals from that denial. On appeal, Cox argues
that his agreement to waive his RCr 11.42 motion was not knowingly and
voluntarily made and that the trial court erred when it failed to reinstate his motion.
The Commonwealth argues that Cox did knowingly and voluntarily waive his RCr
11.42 motion and his right to pursue it. For the reasons set forth below, we agree
with the Commonwealth and affirm.
FACTS
On November 1, 2004, Brenda Miller (Miller) and her boyfriend were
involved in a domestic dispute. Miller apparently called Cox and his wife (Regina)
and asked them for help. Cox, Regina, and Regina’s eight-year-old son, Isaac
Reardon (Reardon), then drove to Miller’s residence. Police officers, who
apparently had been called by one of Miller’s neighbors, arrived on the scene
shortly after Cox, Regina, and Reardon. Miller’s boyfriend told the officers that
Regina had supplied Miller with drugs. After a consensual search, officers arrested
Regina and charged her with possession of a controlled substance.
Following Regina’s arrest, Cox, Miller, and Reardon left Miller’s
residence and spent the night in a motel. The next morning, the trio went to the
Cox residence where, according to Cox, he, Reardon, and Miller went back to
sleep. Cox and Reardon awoke several hours later, left the house, went to the
bank, and posted bail for Regina. Cox stated that he believed that Miller was still
sleeping when he and Reardon left. However, after he posted Regina’s bail, Cox
received a telephone call from a friend who advised him that Miller was dead.
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Because of Miller’s young age (31) and the circumstances of her death, the coroner
ordered a blood test, which revealed the presence of a number of drugs in Miller’s
system. Based on the blood test, and without the benefit of an autopsy, the coroner
ruled that Miller died from an accidental drug overdose.
When questioned by police officers about Miller’s death, Cox
admitted he had provided her with illegal drugs. He also admitted he had used
illegal drugs while with Reardon. Based on these admissions and statements from
other witnesses, the police arrested Cox and charged him with murder, first-degree
trafficking in a controlled substance, second offense; wanton endangerment in the
first degree; and with being a persistent felony offender in the first degree. The
grand jury subsequently indicted Cox accordingly.
On August 29, 2005, Cox accepted the Commonwealth’s offer to
recommend a sentence of fifteen years’ imprisonment in exchange for a guilty plea
to wanton endangerment and possession of a controlled substance and an Alford
plea to reckless homicide. Two weeks later, Cox filed a pro se motion seeking to
withdraw his guilty plea. The court, finding that the plea had been knowing and
voluntary, denied that motion and imposed a sentence consistent with the
Commonwealth’s recommendation.
On January 20, 2006, Cox filed a pro se RCr 11.42 motion arguing
that his trial counsel was ineffective because he gave incorrect advice regarding the
possible sentences Cox faced and because he failed to adequately investigate the
cause of Miller’s death. As he does here, Cox argued that Miller’s death may have
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been the result of the altercation with her boyfriend or drugs she consumed before
she left her residence with Cox. Cox also moved for an evidentiary hearing and
asked the court to appoint counsel. The court granted Cox’s motion for a hearing
and appointed counsel.
On the day of the hearing, Cox asked to withdraw his RCr 11.42
motion. It appears that Cox made this request, in part, because he was scheduled
for a parole hearing within six months of the RCr 11.42 hearing. It also appears
that Cox’s appointed counsel recommended withdrawal because, if Cox succeeded
in obtaining a new trial, he faced the possibility of a significant increase in his
sentence.
Before granting his request to withdraw his RCr 11.42 motion, the
court asked Cox, several times, if he understood what he was doing and that he
would not be able to re-file his RCr 11.42 motion. Cox stated that he understood
what he was doing and its implications, that he was acting knowingly and
voluntarily, that he had not been offered anything in exchange for dismissing his
motion, and that he had not been unduly influenced to do so. In addition to
questioning Cox, the court reviewed the underlying plea agreement and the
appropriate statutory provisions to determine if Cox and the parties correctly
understood his parole eligibility. After that review, the court confirmed that,
because Cox pled guilty to class D felonies only, he would be eligible for parole
after serving twenty percent of his sentence. The court then entered an order
dismissing Cox’s motion.
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On December 29, 2008, Cox filed a motion to reinstate his RCr 11.42
motion. In the reinstatement motion, Cox argued that his RCr 11.42 court
appointed counsel inappropriately advised him to withdraw his RCr 11.42 motion
because, in part, his trial counsel was not present for the evidentiary hearing. Cox
also argued that his RCr 11.42 court appointed counsel was ineffective because she
misrepresented what the potential downside to “winning” the motion could be, and
she had not adequately investigated the facts.
The court denied Cox’s reinstatement motion finding that Cox
confirmed that he understood that if he withdrew his
motion, then he could not refile it, that he understood that
the Court could not guarantee that he would receive
parole in October when he is eligible for parole, and that
his request to withdraw was made voluntarily. He said
he did not want to go forward with the hearing. The
Court reviewed the Petitioner’s Judgment, and it is
correct and reflects the Court’s understanding of the
Petitioner’s plea and the Commonwealth’s
recommendation regarding his sentence.
Cox then filed this appeal.
ANALYSIS
Initially, we note that final disposition of an RCr 11.42 motion, either
by direct court action or by “waiver of the opportunity to make [a motion], shall
conclude all issues that reasonably could have been presented” in an RCr 11.42
proceeding. Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983); RCr
11.42(3). When Cox withdrew his RCr 11.42 motion, he waived the opportunity to
present any issues related to ineffective assistance of trial counsel and the trial
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court correctly foreclosed him from resurrecting those issues by attempting to refile his motion.
However, the preceding does not end our analysis. We must also
determine if Cox knowingly and voluntarily agreed to withdraw his motion. We
have found no case law that directly addresses how a court is to judge the validity
of the withdrawal of an RCr 11.42 motion. While we do not believe that the same
standard used to judge the validity of a guilty plea must be used in this case, we
find it instructive. The test for determining the validity of a guilty plea is whether
the plea is a voluntary and intelligent choice among the alternative courses of
action open to the defendant. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.
App. 1986) (citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 164, 27
L.Ed. 2d 162 (1970)). Inquiry into the voluntariness of a plea is fact sensitive and
the trial court will only be reversed if its decision was clearly erroneous. Edmonds
v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006).
Having reviewed the record we note that the trial court went to great
lengths to ensure that Cox understood what he was doing and the implications of
his actions. In fact, the trial court went beyond the call of duty when it took the
time to determine whether Cox and the attorneys correctly understood the
parameters of the plea agreement as well as understanding when Cox would
become eligible for parole. Therefore, we discern no error in the court’s finding
that Cox acted voluntarily and knowingly.
CONCLUSION
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Because Cox waived his right to proceed under RCr 11.42 and
because the trial court did not err in determining that Cox’s waiver was knowing
and voluntary, we affirm.
THOMPSON, JUDGE, CONCURS.
HARRIS, SENIOR JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Rodger Lee Cox, pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Christian K.R. Miller
Assistant Attorney General
Frankfort, Kentucky
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