REARDON (LARRY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001208-MR
LARRY REARDON
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NOS. 99-CR-00023 & 99-CR-00024
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, NICKELL, AND STUMBO, JUDGES.
STUMBO, JUDGE: Larry Reardon appeals from the denial of his Kentucky Rules
of Criminal Procedure (RCr) 60.02 motion seeking to vacate a twenty-year
sentence arising from a 2002 conviction on multiple counts of rape, sexual abuse
and witness intimidation. Reardon argues that his due process rights were violated
when the trial court failed to order a full psychiatric evaluation prior to Reardon’s
guilty plea. We are not persuaded by Reardon’s assertion that the record contains
substantial evidence of his incompetency, and accordingly find no basis for his
claim that the court erred in failing to order a competency hearing prior to trial.
In 1999, the Marion County grand jury indicted Reardon on 80 counts
of rape and sexual abuse arising from the allegation that Reardon sexually abused
his minor daughters between 1990 and 1999. On November 30, 2000, Reardon,
through counsel, filed a motion to suppress any statements allegedly made to the
police at the time of his February 12, 1999 arrest on the grounds that such
statements were not made as a result of a knowing, intelligent and voluntary
waiver of his constitutional right to remain silent and right to counsel. On that
same date, Reardon also filed a motion for a competency hearing.
After a series of continuances, delays and rescheduled hearing dates,
the motion for a competency hearing was dropped from the court calendar and a
suppression hearing was conducted on December 10, 2001. Evidence was adduced
at the suppression hearing that Reardon could not read or write, suffered from
seizures for about two years prior to his arrest, had a doctor’s appointment for
nerves and stress at the time of his arrest, and had been struck in the head with an
automobile starter one or two days before the arrest.
Apparently prior to the suppression motion being ruled upon, three
days later on December 13, 2001, Reardon entered a guilty plea to twenty counts
of first-degree rape, fifteen counts of sexual abuse, and ten counts of intimidating a
witness. In exchange for the plea, the Commonwealth recommended a total
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sentence of twenty years in prison. A judgment of conviction and a sentence of
twenty years in prison were rendered on February 13, 2002.
Some seven years later on March 19, 2009, Reardon filed a pro se
motion seeking Kentucky Rules of Civil Procedure (CR) 60.02 relief from the
judgment. As a basis for the motion, Reardon argued that he was incompetent to
enter a guilty plea, and that he had suffered the denial of due process rights arising
from the court’s failure to order a competency hearing. His motion seeking
appointed counsel was sustained. Reardon’s motion for relief from judgment was
denied on May 4, 2009, and this appeal followed.
Reardon now argues that the trial court erred to his substantial
prejudice and denied him due process of law when it overruled his motion for CR
60.02 relief without holding an evidentiary hearing. Reardon contends that a
movant is entitled to an evidentiary hearing on a CR 60.02 motion if he alleges
facts which, if true, would justify vacating the judgment. He maintains that
because his CR 60.02 motion asserted that no competency hearing was conducted
prior to his guilty plea, the court erred in failing to conduct an evidentiary hearing
on the question of whether a competency hearing was conducted. Reardon notes
that a criminal defendant may not be tried or convicted while legally incompetent,
and that due process requires an evidentiary hearing whenever there is sufficient
doubt that the defendant is competent.
Reardon directs our attention to what he contends is substantial
evidence in the record sufficient to require a determination of his competency.
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That evidence consists of a 1999 order authorizing a neurological screening; a
November 30, 2000 motion for a competency hearing and subsequent scheduling
of said hearing on March 19, 2001; the court’s awareness of his illiteracy1 and
placement in special classes when in school; the court’s awareness that he suffered
from seizures and dizzy spells, and had a doctor’s appointment for symptoms
allegedly related to nerves and stress; and, the court’s awareness that he had been
hit in the head with an automobile starter approximately two days before his arrest.
Reardon argues that these factors were sufficient to create an issue of his
competency, and that the trial court therefore erred in failing to conduct a CR
60.02 hearing to determine if a competency hearing had been conducted prior to
Reardon’s guilty plea.
We have closely examined the record and the law on this issue, and
find no error. Kentucky Revised Statutes (KRS) 504.100(1) provides that “[i]f
upon arraignment, or during any stage of the proceedings, the court has reasonable
grounds to believe the defendant is incompetent to stand trial, the court shall
appoint at least one (1) psychologist or psychiatrist to examine, treat and report on
the defendant’s mental condition.” In order for KRS 504.100(1) to apply, the
grounds for questioning the defendant’s competency must be brought to the
attention of the trial court by defense counsel, or be so obvious that the trial court
cannot fail to be aware of them. Gabbard v. Commonwealth, 887 S.W.2d 547 (Ky.
1994).
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Defense counsel stated on the record that Reardon had “difficulty reading and writing.”
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The dispositive question, then, is whether there are reasonable
grounds in the record for questioning Reardon’s competency. If so, Reardon’s CR
60.02 motion may entitle him to a determination of whether a competency hearing
was conducted. We find no error in the trial court’s implicit determination that no
reasonable grounds existed to question Reardon’s competency. Reardon’s original
trial counsel requested a neurological examination. For reasons not set out in the
record, that request was either dropped or otherwise abandoned. Reardon properly
points out that the trial court was made aware of his illiteracy, that he suffered
from seizures and dizzy spells, that he had a doctor’s appointment for his nerves,
and that he had been struck in the head with an automobile starter about two days
before his arrest. These factors, taken alone, do not compel us to conclude that
reasonable grounds existed at the time of Reardon’s plea to question his
competency.
At the time of Reardon’s plea, he was represented by counsel.
Because of Reardon’s difficulty reading, the terms of his plea were read to him and
fully explained by counsel. Defense counsel noted that though Reardon was taking
seizure medication, “I believe that his judgment is clear enough for him to
understand what we are doing today.” The court then proceeded to discuss with
Reardon the terms of his plea, the consequences of entering the plea, and whether
Reardon fully understood the effects of the plea. Reardon entered into a dialogue
with the court, and answered affirmatively each time he was asked if he understood
the plea and its consequences.
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When considering the totality of the record, including defense
counsel’s statement that Reardon was able to understand the plea, as well as
Reardon’s full participation in the plea colloquy, we cannot conclude that
reasonable grounds existed for questioning Reardon’s competency and invoking
KRS 504.100(1).
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
M. Brooke Buchanan
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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