ROBERT FRASER V. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 27,200l
TO BE PUBLISHED
1999-SC-0846-DG
ROBERT FRASER
V.
ON REVIEW FROM COURT OF APPEALS
1998-CA-1365
PIKE CIRCUIT COURT NO. 96-CR-129
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
Appellant Robert Fraser pled guilty to murder and to two counts of tampering
with physical evidence and was sentenced to life in prison. His subsequent motion for
relief under RCr 11.42 was denied without an evidentiary hearing or appointment of
counsel. The Court of Appeals affirmed and we granted discretionary review to address
the following issues: (1) When is an evidentiary hearing required on an RCr 11.42
motion? (2) When is an indigent movant entitled to the appointment of counsel to assist
him in pursuing an RCr 11.42 motion? and (3) Was Appellant entitled to an evidentiary
hearing and to appointment of counsel in this case?
In June 1995, Appellant and his girlfriend, Arlene Hall Rowe, along with Rowe’s
brother, Gary Lee Young, were indicted for the murder and attempted disposal of the
body of Rowe’s ex-husband, Everett Lee Hall. The Commonwealth gave written notice
that it would not seek the death penalty against any of the defendants. On the morning
of trial, April 21, 1997, Appellant entered a plea of guilty to murder. In response to an
inquiry by the trial judge during the Boykin hearing, Bovkin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), Appellant stated that he had not been promised
any benefit in exchange for his plea. At the conclusion of the hearing, Appellant’s plea
was accepted and the Commonwealth made no recommendation with respect to a
sentence. Final sentencing was deferred until May 16, 1997. The case then
proceeded to trial on the charges against the other two defendants. Appellant was the
Commonwealth’s chief witness at trial. He testified that he killed Hall upon Rowe’s
solicitation and that all three defendants participated in an attempt to dispose of Hall’s
body. Rowe was convicted of complicity to murder and two counts of complicity to
tampering with physical evidence and was sentenced to life in prison.’
At final sentencing on May 16, 1997, the Commonwealth again made no
recommendation with respect to Appellant’s sentence and he was sentenced to life in
prison. On May 20, 1997, Appellant’s attorney filed a motion to alter or amend the
judgment requesting that the sentence be reduced to twenty years “[d]ue to the
substantial assistance which Robert Fraser contributed to the Commonwealth’s efforts
in successfully convicting co-defendant Arlene Hall . . .‘I The motion was set for
hearing on June 27, 1997. The clerk’s record does not contain a written ruling on the
motion or include a videotape or transcript of any relevant hearing. We assume the
’ Some of the recited facts were obtained from our unpublished opinion in Rowe
v. Commonwealth, 97-SC-0441 -MR (1998) which affirmed Rowe’s convictions and
sentence.
motion was overruled. On May 19, 1998, Appellant, pro se, filed this RCr 11.42 motion,
as well as a motion for an evidentiary hearing, a motion to proceed in forma pauperis
with attached affidavit of indigency, and a motion for appointment of counsel to assist
him at the evidentiary hearing.
1. RCr 11.42 PROCEDURES . . .
The United States Constitution requires that indigent defendants be represented
by counsel at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963), and on a first appeal as a matter of right. Doualas v. California, 372 U.S. 353,
83 S.Ct. 814, 9 L.Ed.2d 811 (1963). There is no constitutional right to a post-conviction
collateral attack on a criminal conviction or to be represented by counsel at such a
proceeding where it exists. Murray v. Giarratano, 492 U.S. 1, 8, 109 S.Ct. 2765, 2769,
106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994,
95 L.Ed.2d 539 (1987). The Constitution of Kentucky provides for one appeal as a
matter of right, Ky. Const. § 115, and contains no provision with respect to a postconviction collateral attack except the prohibition in Section 16 against suspension of
the writ of habeas corpus. Today, the vast majority of collateral attacks against criminal
convictions are by motions filed pursuant to RCr 11.42.
The former Code of Practice in Criminal Cases, which governed criminal
procedure in Kentucky from 1877 to 1963, contained no provision comparable to RCr
11.42. Section 276 of the Code merely provided that “[t]he only ground upon which a
judgment shall be arrested is that the facts stated in the indictment do not constitute a
public offense.” Thus, until 1963, the only avenues of collateral attacks on final
judgments of conviction were petitions for writs of habeas corpus or coram nobis. The
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inadequacies of these remedies for collateral attacks on final judgments of conviction
are analyzed at length in a Kentucky Law Journal article by John S. Gillig, Kentucky
Post-Conviction Remedies and the Judicial Development of Kentuckv Rule of Criminal
Procedure 11.42, 83 Ky. L.J. 265, 295-330 (1994-95). To summarize, a writ of habeas
corpus, the purpose of which was to provide swift resolution of claims of illegal
confinement, had to be brought in the court having jurisdiction over the person of the
petitioner, i.e., where he was imprisoned, rather than where he had been tried and
where likely witnesses would be found. This also created a problem of “comity”
whereby one trial judge was asked to overturn the judgment of another trial judge.
Initially, at least, the only remedy upon the grant of a writ of habeas corpus was to
release the prisoner from confinement and return him to immediate freedom. Later, the
concept of a “conditional writ” was recognized whereby the prisoner would remain
confined until retrial. Finally, the error alleged in the habeas petition had to be evident
from the trial record, a requirement that bound the reviewing court to the clerk’s record
and the transcript of proceedings at trial. Id. at 308-09. A writ of coram nobis was
closely akin to our present CR 60.02 and was predicated on errors of fact, not law,
which theoretically excluded constitutional arguments of law that now comprise the bulk
of RCr 11.42 claims. Further, the error had to be “hidden or unseen;” thus, common
trial errors could not be raised. Some cases apparently required the petitioner to
demonstrate what today would be termed “actual innocence.” Id. at 330.
In 1958, the General Assembly established a committee to study and
recommend revisions to the Criminal Code, “including the transposition of general
procedural rules from the Kentucky Revised Statutes to the Code and matters of
substantive law from the Code to the Kentucky Revised Statutes.” KRS 447.310(2)
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(1958 Ky. Acts, ch. 45, § 1; repealed 1968 Ky. Acts, ch. 152, 5 168). In 1962, the
General Assembly accepted the recommendations of the committee and enacted the
present Rules of Criminal Procedure. 1962 Ky. Acts, ch. 234, at 788-827 (eff. January
1, 1963). In doing so, it “declared [it] to be the policy of the General Assembly, insofar
as the Legislative Department is empowered to express policy on matters of judicial
procedure, that prescription of rules governing details of procedure will be left to the
discretion of the Judicial Department after the effective date of this Act.” Id. at 788-90
(Preamble). Thereafter, all amendments to the Rules of Criminal Procedure have been
promulgated by this Court and its predecessor.
As originally enacted by the General Assembly, RCr 11.42 did not mention
appointment of counsel. 1962 Ky. Acts, ch. 234, at 822. The Rule had been modeled
on 28 U.S.C. § 2255, which, until 1996, contained no provision for the appointment of
counsel.* Exercising the inherent rule-making power recognized in the Preamble to the
1962 enactment of the Criminal Rules, supra, our predecessor Court rejected the
legislative version of RCr 11.42 and substituted a version that was more specific as to
procedures and contained the same provision for appointment of counsel now found at
RCr 11.42(5). The existing provisions of RCr 11.42 relevant to our present inquiry are
as follows:
(2) The motion shall be signed and verified by the movant and
shall state specifically the grounds on which the sentence is being
challenged and the facts on which the movant relies in support of such
grounds. Failure to comply with this section shall warrant a summary
dismissal of the motion.
...
* In 1996, 28 U.S.C. § 2255 was amended to provide that “the court mau appoint
counsel . . . .” Pub. L. 104-I 32, § 105, 110 Stat. 1220 (1996) (emphasis added).
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(5) . . . If the answer raises a material issue of fact that cannot be
determined on the face of the record the court shall grant a prompt
hearing and, if the movant is without counsel of record and if financially
unable to employ counsel, shall upon specific written request by the
movant appoint counsel to represent the movant in the proceeding,
including appeal.
These provisions establish the following procedural steps with respect to an
evidentiary hearing and the appointment of counsel:
1. The trial judge shall examine the motion to see if it is properly signed and
verified and whether it specifies grounds and supporting facts that, if true, would
warrant relief. If not, the motion may be summarily dismissed. Odewahn v. Robke,
Ky.,
385 S.W.2d 163, 164 (1964).
2. After the answer is filed, the trial judge shall determine whether the
allegations in the motion can be resolved on the face of the record, in which event an
evidentiary hearing is not required. A hearing is required if there is a material issue of
fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an
examination of the record. Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44
(1993), cert. denied, 510 U.S. 1049 (1994); Lewis v. Commonwealth, Ky., 411 S.W.2d
321, 322 (1967). The trial judge may not simply disbelieve factual allegations in the
absence of evidence in the record refuting them. Drake v. United States, 439 F.2d
1319, 1320 (6th Cir. 1971).
3. If an evidentiary hearing is required, counsel must be appointed to represent
the movant if he/she is indigent and specifically requests such appointment in writing.
Coles v. Commonwealth, Ky., 386 S.W.2d
465 (1965). If the movant does not request
appointment of counsel, the trial judge has no duty to do so sua soonte. Beecham v.
Commonwealth, Ky., 657 S.W.2d 234, 237 (1983).
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4. If an evidentiary hearing is not required, counsel need not be appointed,
“because appointed counsel would [be] confined to the record.” Hemohill v.
Commonwealth, Ky., 448 S.W.2d
60, 63 (1969). (However, the rule does not preclude
appointment of counsel at any stage of the proceedings if deemed appropriate by the
trial judge.)
The wisdom of not reauiring appointment of counsel if the allegations can be
conclusively resolved by examination of the record is attested to by the number of
frivolous or facially meritless motions filed under the rule, some of which have found
their way into published opinions. b, Glass v. Commonwealth, Ky., 474 S.W.2d 400,
401 (1971) (movant claimed his plea was involuntary because it was motivated by a
desire to avoid a possibly harsher penalty at the hands of a jury); Adkins v.
Commonwealth, Ky., 471 S.W.2d
721,722 (1971) and Newberrv v. Commonwealth,
Ky., 451 S.W.2d 670, 671 (1970) (movants claimed they were coerced to plead guilty,
but the records in each case conclusively proved that, in fact, neither had pled guilty
and both had been convicted by juries following jury trials). The sheer volume and
relative futility of RCr 11.42 motions are apparent from statistics recited in Gillig’s
Kentucky Law Journal article, supra. His survey of the 342 appellate opinions in RCr
11.42 cases published from 1963 to 1995 revealed that only five movants were granted
new trials and only two obtained unconditional release from incarceration. In only 14%
of the total cases did the movant obtain even minor relief, such as a remand for an
evidentiary hearing. Id. at 342-43. His survey of all RCr 11.42 appellate opinions,
published and unpublished, for the years 1990 and 1991 revealed that relief was denied
in 294 of 321 cases. In only seven cases were the movants granted new trials. The
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remaining twenty reversals granted minor relief such as a remand for an evidentiary
hearing. Id. at 344.
When RCr 11.42 was adopted in 1963, the representation of indigent criminal
defendants in Kentucky and most other states was primarily provided on an involuntary,
uncompensated basis. Typically, the presiding trial judge appointed the youngest
members of the local bar to represent indigent defendants without compensation and
under threat of contempt. See aenerally, B. Deatherage, Comment, The
Uncombensated Aooointed Counsel Svstem: A Constitutional and Social
Transaression, 60 Ky. L.J. 710 (1971-72). The same procedure prevailed in federal
jurisdictions until the enactment of the Criminal Justice Acts of 1964, 18 U.S.C. §
3006A. The primary justification advanced for this imposition was that pro bono
representation of indigent defendants upon court order was a traditional professional
obligation of the bar. See United States v. Dillon, 346 F.2d 633, 636-38 (Appendix) (9th
Cir. 1965), cert. denied, 382 U.S. 978 (1966). Although our predecessor Court
expressed concerns about the issue, it initially deferred to the legislature, because
“[o]nly the legislature can provide sufficient funds to finance such a project, and of
course the legislature must necessarily create the system under which these funds
could be properly disbursed.” Commonwealth. Debt of Corrections v. Burke, Ky., 426
S.W.2d 449, 451 (1968); see also Jones v. Commonwealth, Ky., 457 S.W.2d 627, 63132 (1970), cert. denied, 401 U.S. 946 (1971); Warner v. Commonwealth, Ky., 400
S.W.2d 209, 211-12 (1966), cert. denied, 385 U.S. 885 (1966).
In October 1971, the Franklin Circuit Court ordered the Commissioner of Finance
to pay fees awarded to court-appointed criminal defense attorneys by trial judges in
Campbell and Jefferson Counties. On appeal, our predecessor Court held that the
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existing system of court-appointed uncompensated counsel was unconstitutional.
Bradshaw v. Ball, Ky., 487 S.W.2d 294, 299 (1972). In so doing, the Court also
observed:
In the context presented, we are persuaded that it is the duty of the
executive department to enforce the criminal laws, and it is the duty of the
legislative department to appropriate sufficient funds to enforce the laws
which they have enacted. The proper duty of the judiciary, in the
constitutionally ideal sense, is neither to enforce laws nor appropriate
money. The judiciary’s reason for existence is to adiudicate.
Id. (emphasis in original).
Meanwhile, during the pendency of the appeal in Bradshaw v. Ball, the 1972
General Assembly enacted KRS Chapter 31, establishing and funding the Department
of Public Advocacy (“DPA”) for the purpose of providing legal counsel for indigent
criminal defendants. Of specific relevance to this case is KRS 31 .I 10(2)(c):
(2)
A needy person who is entitled to be represented by an attorney
under subsection (1) is entitled:
ii)’
To be represented in any other post-conviction proceeding
that the attorney and the needy person considers (sic) appropriate.
However, if the counsel appointed in such post-conviction remedy,
with the court involved, determines that it is not a proceeding that a
reasonable person with adequate means would be willing to bring
at his own expense, there shall be no further right to be
represented by counsel under the provisions of this chapter.
The last sentence in subsection (c) appears to require a procedure akin to that
described in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d
493 (1967) and adopted in Kentucky by Fite v. Commonwealth, Ky., 469 S.W.2d 357,
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358 (1971) with respect to criminal appeals3 a, m, Robbins v. Commonwealth, Ky.
App., 719 S.W.2d 742 (1986).
In Commonwealth v. key, Ky., 599 S.W.2d 456 (1980), we interpreted KRS
31 .I 10(2)(c) to require the appointment of counsel in an RCr 11.42 proceeding “upon
request” of an indigent movant, id. at 457, regardless of the stage of the proceedings,
because successive motions are barred by RCr 11.42(3), Butler v. Commonwealth, Ky.,
473 S.W.2d 108, 109 (1971), and “[wlithout the assistance of counsel lvey could be
effectively precluded from raising valid grounds by failure to include such grounds at the
time of his first motion.” Ivey. supra, at 4584. A literal reading of ky and KRS
31.110(2)(c) would require appointment of counsel upon request to assist a prospective
RCr 11.42 movant in researching, preparing and filing the initial motion; and, if counsel
determines that there are no meritorious grounds for such a motion, to submit an
Anders brief to the trial judge explaining why the motion was not filed. However, in
Gilliam v. Commonwealth, Ky., 652 S.W.2d 856 (1983), we held that ky did not
3 In Smith v. Robbins, 528 U.S. 259, 272-76, 120 S.Ct. 746, 757-59, 145
L.Ed.2d 756 (2000), the United States Supreme Court held that Anders is not obligatory
on the states and that states are free to adopt alternative procedures, so long as those
procedures adequately safeguard a defendant’s right to appellate counsel.
4 Contrary to the assertion made in Justice Keller’s separate opinion, ante at
(slip op. at 2), b did not interpret KRS 31 .I 10 as requiring appointment of counsel
“for the purpose of supplementing an RCr 11.42 petition,” but as requiring appointment
“on request.” &y, at 457. Nothing in b suggests that the motion for counsel therein
was for the purpose of assisting in preparing a supplemental pleading, and Fraser is not
requesting such assistance in the motion, sub iudice. Justice Keller’s citation to Nichols
v. United States, 511 U.S. 738, 748, 114 S.Ct. 1921, 1928, 128 L.Ed.2d 745 (1994) is
also inapposite. The holding in Nichols was that an uncounseled misdemeanor
conviction, valid under Scott v. Illinois, 440 U.S. 367, 99 SCt. 1158, 59 L.Ed.2d 383
(1979), because no prison term was imposed, may be used to enhance punishment at
a subsequent conviction. Id. at 748-49, 114 S.Ct. at 1928. Footnote 12 to that opinion
primarily relied on by Justice Keller, ante at - (slip op. at 8, n.19), only holds that
states may decide whether counsel should be provided for indigent defendants charged
with misdemeanors.
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purport to expand either the purpose of RCr 11.42 or the scope of its relief. Id. at 858.
Gilliam also held that a prospective indigent movant was not even entitled to a free
transcript of his trial to assist in preparing an RCr 11.42 motion, id. at 859, despite the
fact that KRS 31 .I IO(l)(b) provides that “[a] needy person . . . being detained under a
conviction . . . is entitled . . [t]o be provided with the necessary services and facilities of
representation includina investiaation and other orebaration.” (Emphasis added.)
Gilliam clearly represented a retreat from the broad language in b that KRS 31 .I 10
requires appointment of counsel and the provision of services “upon request.”
In Commonwealth v. Stamps, Ky., 6,72 S.W.2d 336 (1984), the trial judge denied
motions for an evidentiary hearing and appointment of counsel, and overruled the RCr
11.42 motion solely on the basis of legal precedent. The Court of Appeals affirmed the
denial on the merits, but, citinq Ivey, reversed for appointment of counsel to “permit
appellant to present for adjudication any supplementary grounds that might reasonably
appear for RCr 11.42 relief.” Id. at 337. On discretionary review, we agreed that, on
the face of the record, an evidentiary hearing was not required and held that the failure
to appoint counsel was “harmless error.” Id. at 337-38. Stamps also noted that
although b had construed KRS 31 .I 10 as providing broader relief than RCr 11.42(5),
“our rule of construction when dealing with a Drocedural matter mandated bv statute for
a criminal case is that ‘We do not believe the legislature intend(s) the statute to be
construed so as to reach an absurd result.“’ Id. at 339 (emphasis added) (citing
Callowav v. Commonwealth, Ky., 550 S.W.2d 501, 503 (1977)).
As observed in Bradshaw v. Ball, supra, it is the function of the legislature to
enact substantive criminal laws and to appropriate sufficient funds to enforce them; it is
the function of the judiciary to adjudicate. Like the right to trial by jury and the right of
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confrontation, the constitutional right to counsel is a matter of procedural due process,
In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) not substantive criminal
law. The responsibility for determining when and whether counsel must be appointed
for a criminal defendant in Kentucky is a function of the judicial department, not the
legislature. Ky. Const. § 116; see RCr 3.05(2). To its credit, the General Assembly has
created and funded the DPA, and nothing except legislative parameters precludes that
office from providing legal services to indigent defendants or movants even when not
constitutionally required. We conclude, therefore, that RCr 11.42(5)
establishes when a
judge must appoint counsel for an indigent movant and that KRS 31 .I 10(2)(c)
establishes when the DPA mav provide legal services even without judicial
appointment.5 To the extent that Commonwealth v. Ivey, supra, holds that KRS
31.110(2)(c) establishes when a judge must appoint counsel for an indigent movant, it
is overruled. Since the statute is broader than the rule, we can conceive of no situation
where the judge would appoint counsel for an indigent RCr 11.42 movant who would be
statutorily ineligible for representation by the DPA.
Il. . . . AS APPLIED TO THIS CASE.
Appellant’s RCr 11.42 motion alleged ineffective assistance of counsel in two
respects: (1) failure to pursue Appellant’s mental incompetency defense; and (2) failure
to prepare for trial. The motion alleges that counsel told Appellant on the morning of
5 Contrary to Justice Keller’s suggestion, ante at - (slip op. at 12), Pillersdorf
v. Deot. of Public Advocacv, Ky., 890 S.W.2d 616 (1994) does not hold otherwise.
Pillersdorf only holds that once the DPA has been appointed to represent an indigent
defendant, a trial judge “for good cause” can order substitute counsel, but absent a
finding of “good cause,” the trial judge cannot order the DPA to pay the substitute
counsel’s fee.
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trial that he was unprepared for trial, that he would be reduced to trying the case “by the
seat of his pants,” and that if Appellant did not plead guilty he would be convicted and
sentenced to life in prison. The motion also alleged that Appellant’s guilty plea was
involuntary because it was induced by counsel’s representation that the
Commonwealth’s attorney had agreed to a plea bargain by which Appellant would be
sentenced to only twenty years in lieu of the maximum sentence of life in prison.
Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States
v. Valenciano, 495 F.2d 585 (3d Cir. 1974); Roberts v. United States, 486 F.2d 980 (5th
Cir. 1973).
The trial judge overruled the motion without an evidentiary hearing and without
appointing counsel, finding that (1) the allegation of ineffective assistance of counsel
was insufficiently specific to warrant a hearing; and (2) the allegation that the guilty plea
was involuntary was belied by the absence from the record of a written plea agreement
and by Appellant’s own denial at the Boykin hearing. The Court of Appeals affirmed,
also noting that there was nothing in the record to support Appellant’s claim of a secret
plea agreement. Thus, both the trial court and the Court of Appeals erroneously held
that Appellant’s motion should be dismissed because the record did not prove the
allegations in his motion, not because the record conclusively disproved those
allegations.
In his motion for discretionary review, Appellant, still pro se, asserted that
the reason for the silent record was that his consideration for the plea agreement was
(1) he would testify against his codefendants and (2) he would keep the plea agreement
secret so that it could not be used to impeach the credibility of his testimony at trial. He
also noted compellingly that absent a plea agreement he would have had no motivation
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to testify against his girlfriend at trial. We granted discretionary review and appointed
counsel to represent Appellant before this Court.
The two-pronged test for ineffective assistance of counsel is (1) whether counsel
made errors so serious that he was not functioning as “counsel” guaranteed by the
Sixth Amendment, and (2) whether the deficient performance prejudiced the defense.
Strickland v. Washinaton, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Gall v. Commonwealth, Ky., 702 S.W.2d 37, 39 (1985), cert. denied, 478 U.S.
1010 (1986). Appellant’s allegation that his attorney told him to plead guilty because he
(the attorney) was unprepared for trial was sufficiently specific to warrant a hearing on
whether the attorney was functioning as “counsel” guaranteed by the Sixth Amendment.
The fact that Appellant received the maximum sentence for the offense to which he
pled guilty satisfies the requirement of prejudice. Compare Lawson v. Commonwealth,
Ky., 386 S.W.2d 734 (1965), cert. denied, 381 U.S. 946 (1965):
The record shows, however, that appellant entered a plea of guilty to the
rape charge; he received [a] sentence of imprisonment for ten years, the
minimum sentence permitted under KRS 435.090. Appellant does not
assert that counsel badgered him into entering a guilty plea, nor does he
claim that he failed to understand the consequences of his guilty plea.
Id. at 735. Here, Appellant not only received the maximum sentence, he asserts that
counsel told him he was unprepared to try his case and represented to him that the
consequence of his guilty plea would be the imposition of the minimum sentence.
As stated, the trial judge denied Appellant an evidentiary hearing with respect to
the voluntariness of his guilty plea because of the absence from the record of a written
plea agreement and Appellant’s statements at the H o w hearing. r ,
Boykin e v e
t h e
absence from the record of a written plea agreement does not “conclusively resolve”
that a plea agreement was not, in fact, reached. Oral plea agreements are not
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uncommon. b, United States v. Stravhorn, 250 F.3d 462, 464 (6th Cir. 2001); United
States v. Saucedo, 226 F.3d 782, 786 (6th Cir. 2000). And the very nature of the
alleged agreement described by Appellant explains why it was not reduced to writing
and filed of record.
We have held under the facts of particular cases that admissions made during a
Boykin hearing can conclusively resolve a claim that a plea was involuntarily obtained.
b, Beecham v. Commonwealth, supra, at 237; Glass v. Commonwealth, supra, at
401. However, part of this alleged agreement supposedly required Appellant to deny its
existence. Proof of even a secret agreement has been held foreclosed on the basis of
statements made during a Boykin hearing “absent extraordinary circumstances, a
some explanation of why defendant did not reveal other terms.” Baker v. United States,
781 F.2d 85, 90 (6th Cir. 1986) (emphasis added), cert. denied, 479 U.S. 1017 (1986).
Nevertheless, while the representations of a defendant, his attorney, and the prosecutor
at a Boykin hearing, as well as any findings by the judge accepting the plea, “constitute
a formidable barrier in any subsequent collateral proceedings,” Blackledae v. Allison,
supra, 431 U.S. at 74, 97 S.Ct. at 1629, that barrier is not insurmountable if there is
proof that the representations “were so much the product of such factors as
misunderstanding, duress, or misrepresentation bv others as to make the guilty plea a
constitutionally inadequate basis for imprisonment.” Id. at 74-75, 97 S.Ct. at 1629-30
(emphasis added). Here, Appellant explains that his representations at the Boykin
hearing were the product of his oral plea agreement. If so, the issue of whether there
was, in fact, an agreement could not be “conclusively resolved” on the face of the
record of the Boykin hearing. An evidentiary hearing on Appellant’s RCr 11.42 motion
is required.
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The Commonwealth argues in its brief that “Appellant should not be permitted to
lie on the record, induce the court to make decisions based on that deception and then
subsequently seek to benefit from that deception.” The argument ignores the fact that if
Appellant is now telling the truth, the Commonwealth was not only a party to the
deception, but the instigator of it, and, to date, its only beneficiary. On the other hand,
Appellant allegedly performed his part of the agreement and got nothing in return. He
could not have fared worse if he had gone to trial represented by an unprepared
attorney. In that event, however, the Commonwealth would have been required to try
its case against Rowe and Young without the cooperation and assistance of its key
witness. We do not condone, indeed we condemn, any plea agreement designed to
conceal the true nature of a facially unconditional guilty plea for the purpose of denying
due process of law to another criminal defendant. See Gialio v. United States, 405 U.S.
150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct.
1173, 3 L.Ed.2d 1217 (1959); Williams v. Commonwealth, Ky., 569 S.W.2d 139, 143-45
(1978). Nevertheless, if the Commonwealth entered into such an agreement and
accepted the benefits thereof, it is now estopped to assert that Appellant is not entitled
to his quid pro quo.
The question is not whether the Commonwealth’s bargain was wise
or foolish. The question is whether the Commonwealth should be
permitted to break its word.
...
If the government breaks its word, it breeds contempt for integrity and
good faith. It destroys the confidence of citizens in the operation of their
government and invites them to disregard their obligations. That way lies
anarchy.
Workman v. Commonwealth, Ky., 580 S.W.2d 206, 207 (1979) overruled on other
w, Morton v. Commonwealth, Ky., 817 S.W. 2d 218 (1990). See also Mathenv v.
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Commonwealth, Ky., 37 S.W.3d
756, 758 (2001); Commonwealth v. Reyes, Ky., 764
S.W.2d 62, 68 (1989).
Accordingly, the opinion of the Court of Appeals is reversed and this case is
remanded to the Pike Circuit Court with directions to hold an evidentiary hearing on the
issues of ineffective assistance of counsel and the voluntariness of Appellant’s guilty
plea, to appoint counsel to represent Appellant at that hearing, and to resolve the
issues raised in Appellant’s motion pursuant to RCr 11.42(6)
and the contents of this
opinion.
Lambert, C.J.; Graves, Johnstone and Wintersheimer, JJ., concur as to Part I.
Keller, J., dissents as to Part I by separate opinion, in which Stumbo, J., joins.
Lambert, C.J.; Graves and Johnstone, JJ., concur as to Part II. Keller, J., concurs as to
Part II by separate opinion, in which Stumbo, J., joins. Wintersheimer, J., dissents as to
Part II without separate opinion.
-17-
COUNSEL FOR APPELLANT:
John Palombi
Misty Dugger
Assistant Public Advocates
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort KY 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Connie Vance Malone
Paul D. Gilbert
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
-18-
RENDERED: SEPTEMBER 27,200l
TO BE PUBLISHED
1999-SC-0846DG
ROBERT FRASER
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1998-CA-1365
PIKE CIRCUIT COURT NO. 96-CR-129
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
I agree with much of Section II of the majority opinion and would remand this
matter for the trial court to appoint counsel for Appellant and to conduct an evidentiary
hearing in Appellant’s underlying RCr 11.42 action. I write separately, however,
because I adamantly disagree with the majority’s Section I conclusion regarding a
needy person’s right to appointed counsel in RCr 11.42 proceedings. Accordingly, I
would modify the majority’s Section II holding and, in addition to remanding the case for
an evidentiary hearing on the matters discussed in the majority opinion, I would allow
appointed counsel to supplement Appellant’s previous RCr 11.42 petition and raise any
additional grounds for relief.
Over two (2) decades ago, in Commonwealth v. Ivey,’ this Court unanimously
held that, through its adoption of KRS 31 .I 10, the General Assembly has required the
appointment of counsel for an indigent movant, upon his or her request, for the purpose
of supplementing an RCr 11.42 petition. Today’s majority overrules Commonwealth v.
b without even addressing the primary rationale behind its holding, and bases its
conclusion upon a flawed separation of powers analysis neither briefed nor argued
before the Court. I find it perplexing that, after explicitly referencing - and ridiculing the inadequacy of many pro se RCr 11.42 pleadings, the majority ignores the General
Assembly’s clear intent “to provide meaningful, rather than nominal, protection to the
rights of the indigent,“* and nullifies the “statutory right to counsel [which] allows for
resolution of all legitimate claims in the first motion and provides no inequity between
the needy and rich.‘13
The &y Court recognized that KRS 31 .I 10(2)(c) gives needy persons a
statutory right to appointed counsel in post-conviction proceedings and observed the
appropriateness of this right in light of RCr 11.42(3)‘s procedural default rules:
The primary question presented is whether the public
advocacy statutes require the appointment of counsel upon
request of a “needy person” to represent him in RCr 11.42
proceedings. We hold that the legislature has so provided.
lvey presented the principal issue in this case by way of a
CR 60.02 motion to set aside or to amend the order in the
RCr 11.42 proceeding on the ground that the circuit court
had improperly refused to appoint counsel for lvey when so
requested pursuant to KRS 31 .I 10. The circuit court had
‘KY., 599 S.W.2d 456 (1980).
‘West v. Commonwealth, Ky., 887 S.W.2d 338, 341 (1994).
3Ed Monahan & Rebecca DiLoreto, “The Scope of the Right to Counsel in
Kentucky Post-Conviction Proceedings,” The Advocate, v. 22, no. 4, 34-37 at 37 (July,
2000) (hereafter, “Monahan & DiLoreto”).
-2-
ruled it was unnecessary to appoint counsel for lvey
pursuant to RCr 11.42(5) because the pleadings did not
raise a material issue of fact. However, the CR 60.02
motion and supporting memorandum raised the question of
statutory requirement to provide counsel for needy persons
in post-conviction proceedings upon request. To deny
counsel to such a person was error.
* ‘The provision for appointment of counsel found in RCr
11.42(5) was intended to set the minimum standard for post
conviction relief proceedings. The leaislature could and did
provide for a more aenerous oolicv of aooointina counsel for
indiaents, an action which is entirely consistent with its
control of the purse strings of the Commonwealth.
RCr 11.42(3) provides: “The motion shall state all grounds
for holding the sentence invalid of which the movant has
knowledge. Final disposition of the motion shall conclude all
issues that could reasonably have been presented in the
same proceedings.” This rule has been consistently
interpreted to bar successive motions under 11.42. Without
the assistance of counsel lvey could be effectively precluded
from raisina valid arounds by failure to include such arounds
at the time of his first motion. This ineauitv between the
needv and the affluent is cured bv the statute.
It is our opinion that KRS 31 .I 10 and RCR 11.42 are
complementary and clearly provide for appointment of
counsel in the situation presented here.4
Contrary to the majority’s allegation that this Court has retreated from the b
5
holding, both this Court and the Court of Appeals have applied the m holding and
4Commonwealth v. Ivev, supra note 1 at 457-8 (citations omitted and emphasis
added).
5& Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858 (1983) (‘l&y defines
the right to appointment of counsel in post-conviction RCr 11.42 proceedings. . . . The
holding in m simply provides the movant with legal assistance in preparing and
presenting grievances.“); Beecham v. Commonwealth, Ky., 657 S.W.2d 234, 236
(1983) (“The trial court is required to appoint counsel only upon request.“); Allen v.
Commonwealth, Ky.App., 668 S.W.2d 556, 557 (1984) (“The &y case does require
that counsel be appointed, when requested, to assist an appellant in the presentation of
an RCR 11.42 motion to vacate judgment.“). See also Rav v. Commonwealth, Ky.App.,
633 S.W.2d 71, 72 (recognizing the “statutory right to counsel which is set forth in KRS
31 .I 1 O(l),” but declining to extend that right to CR 60.02 motions filed after the
expiration of a sentence).
-3-
found error when trial courts have failed to appoint counsel in accordance with its
holding.” Although today’s majority deploys out-of-context language from
Commonwealth v. Stamps to suggest that the Stamps Court questioned the b
Court’s interpretation of KRS 31.110, the quoted language refers to the Appellant’s
contention that the trial court’s failure to appoint counsel constituted automatic
reversible error,’ and the Stamps Court actually found error, but believed it harmless
under the facts of that case.’
While this Court has not interpreted &y to require reversal whenever the trial
court fails to appoint counsel (a conclusion which might warrant another look), we have
never - until today, anyway - questioned the b Court’s conclusion that KRS 31.110
grants needy persons a statutory right to appointed counsel in post-conviction
proceedings.
I believe we have done so largely because no other interpretation is
even remotely defensible because the statute contains no ambiguity - KRS 31 .I 10
unequivocally creates a right to appointed counsel in post-conviction matters:
(1)
A needv oerson who is being detained by a law
enforcement officer, on suspicion of having
committed, or who is under formal charge of having
committed, or is beina detained under a conviction of
a serious crime. is entitled:
%ommonwealth v. Stamos, Ky., 672 S.W.2d 336, 339 (1984) (correctly
characterizing the & holding when stating “the statute is broader [than RCR
11.42(5)]. It provides for appointment of counsel on all RCR II .42 motions where the
movant so requests,” and finding the trial court’s failure to appoint counsel erroneous,
but harmless).
‘1d. (“Thus, we are squarely confronted with whether our decision in
Commonwealth v. lvev mandates automatic reversal in every case where a defendant
proceeding in forma pauperis has filed an RCR 11.42 proceeding and requested the
appointment of counsel, but the trial court has failed to provide one.” (citation omitted)).
*1d. (“We hold that in the circumstances offhis case, the trial court’s failure to
appoint counsel for the RCr 11.42 motion was harmless error.” (emphasis added)).
-4-
(a)
(2)
To be represented by an attorney to the
same extent as a Derson havina his own
counsel is so entitled; and
To be provided with the necessary
(W
services and facilities of representation
including investigation and other
preparation. The courts in which the
defendant is tried shall waive all costs.
A needv Derson who is entitled to be represented by
an attornev under subsection (I) is entitled:
id)’
To be reDresented in any other postconviction Droceedina that the attorney
and the needv Derson considerfl
aDDroDriate. However, if the counsel
aDDOinted in such Post-COnViCtiOn
remedy, with the court involved,
determines that it is not a proceeding
that a reasonable person with adequate
means would be willing to bring at his
own expense, there shall be no further
right to be represented by counsel
under the provisions of this chapter.g
I find KRS 31 .I 10 susceptible to only one interpretation - the General Assembly
intends to provide for the appointment of counsel in post-conviction proceedings - and
today’s majority does not provide a viable alternative interpretation. Contrary to the
majority’s view that KRS 31.110(2)(c) authorizes the Department of Public Advocacy to
provide counsel in post-conviction proceedings, but does not contemplate that trial
courts will appoint such counsel, KRS Chapter 31 explicitly references court
9KRS 31 .I 10 (emphasis added).
-5-
appointment.” And, of course, KRS 31.110(2)(c) itself contemplates “counsel
appointed in such post-conviction remedy.“”
The majority dismisses KRS 31 .I 1 O’s creation of a statutory right to appointed
counsel in post-conviction proceedings on the basis of two (2) conclusions: (1) most of
those pleadings are frivolous to begin with; and (2) the General Assembly has no
authority to create such an entitlement.
At the
outset, I fail to see how the first of these conclusions is at all germane to
the inquiry of whether the General Assembly has provided a right to appointed counsel
broader than that required by the state or federal constitutions or by RCr 11.42 itself.
Although the majority purports to trumpet the “wisdom” of its holding by noting the
“number of frivolous or facially meritless motions filed under the rule”12 and suggesting
that the statistics it cites demonstrate the “sheer volume and relative futility of RCr
11.42 motions,“13
an empirical lack of success simply does not justify this Court’s
‘“a KRS 31.051(2) (“Any person provided counsel under the provisions of this
chapter shall be assessed at the time of aooointment, a non-refundable fifty dollar ($50)
administrative fee . . . . ” (emphasis added)); KRS 31 .I 20(l) (“The determination of
whether a person covered by KRS 31 .I 10 is a needy person shall be deferred no later
than his first appearance in court . . . [tlhereafter, the court concerned shall determine .
. . whether he is a needy person. However, nothing herein shall prevent aobointment of
counsel at the earliest necessary proceeding in which the person is entitled to counsel.”
(emphasis added)); KRS 31.120(2) (“In determining whether a person is a needy
person . . . . the court concerned shall consider such factors as . . . .‘I); KRS 31.125(l)
(“If court-appointed counsel has been provided to a juvenile . . . . ” (emphasis added));
KRS 31.250(l) (“Except for attorneys appointed pursuant to KRS . . . 31 .I20 . . . .‘I
(emphasis added)).
“KRS 31 .110(2)(c) (emphasis added).
“Maioritv Ooinion at - S.W.3d
,
-6-
(2001).
substitution of its judgment for that of the General Assembly. I believe the appointment
of counsel is warranted if it only helps a handful of people.
Even if the majority is correct that litigants infrequently obtain relief under RCr
11.42, I believe that fact merely demonstrates the need for the assistance of counsel in
evaluation, preparation, and presentation of those claims. Although the majority’s
characterization implies the filing of intentionally meritless claims, the authority cited by
the majority demonstrates to me that laypersons, untrained in the law, and struggling to
do the best they can with forms passed on from inmate to inmate might, not
unsurprisingly, produce inadequate pleadings. In my opinion, the appointment of
counsel to assist laypersons, especially in light of the Anders-type procedure
contemplated in the last sentence of KRS 31 .I 10(2)(c), can only improve the quality of
RCr 11.42 argumentation and reduce frivolous claims.
I also note that more recent data calls into question “the perception that there are
an endless number of motions to vacate being recklessly filed across the
Commonwealth.“‘4
And, in any event, the law review article containing the figures the
majority cites addresses only appellate court determinations reviewing trial court rulings
in RCr 11.42 proceedings,15
and ignores cases where trial courts granted relief and the
Commonwealth chose not to appeal. Unlike the majority, which commits a hasty
generalization by equating the empirical lack of appellate success with wholesale futility
of post-conviction remedies, the author cited merely concludes that “[t]he burden on the
14Monahan & DiLoreto, supra note 3 at 37.
“The author even concludes that “[alpparently, based on this survey, most of
RCR 11.42 cases are correctly resolved at the trial court level.” John S. Gillig, Kentucky
Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal
Procedure 11.42, 83 Ky. L.J. 265, 344 (1994-95).
-7-
Kentucky Court of Appeals, which must hear all RCr 11.42 appeals except those in
death penalty cases, appears quite out of proportion to the relief granted.“16
The author
relies upon these statistics to support his recommendation that Kentucky modify its
rules to limit direct appeal from trial court rulings denying relief in non-death penalty RCr
11.42 proceedings.17
The majority’s appropriation of these statistics to demonstrate the
“wisdom” of its decision to disregard KRS 31 .I 10(2)(c)
ignores the fact that the author
who compiled these statistics does not recommend any changes in existing procedures
for appointment of counsel in post-conviction matters, and, in fact, appears to recognize
the utility of appointed counsel in such proceedings.”
I find myself even more vexed, however, with the majority’s conclusion that the
General Assembly’s adoption of KRS 31 .I 10 violated the separation of powers doctrine
by attempting to establish court procedures for the appointment of counsel.
The legislative branch unquestionably has the authority to create a statutory right
to appointed counsel. The United States Supreme Court says so,” and - until today,
171d. at 387-390.
‘See Id. at 273 (“[Mlost states either require the appointment of counsel to
assist the indigent prisoner in the investigation and presentation of the claims or at least
have in place a strong presumption in favor of such appointments.“); Id. at 294 (“[A]s
the scope of federal habeus corpus review further contracts, the necessity for
comprehensive post-conviction review in Kentucky theoretically increases
proportionally.” (emphasis added)); Id. at 362 (“In appropriate cases, counsel should be
appointed early in the process, because RCR 11.42(3) requires the movant to present
all grounds for relief of which the prisoner has knowledge.“); Id. (“If counsel is
appointed, the original motion to vacate is either substituted or supplemented by
pleadings prepared with the assistance of counsel.“).
19Nichols v. United States, 511 U.S. 738, 748 n. 12, 128 L.Ed.2d 745, 755 n.12,
114 s.ct. 1921 (1994):
(continued...)
-8-
anPaY - this Court has interpreted KRS Chapter 31 to create such a right,*’ and has,
in the exercise of its constitutional authority, adopted procedures for the appointment of
counsel in accordance with KRS Chapter 31.*’
In fact, this Court’s predecessor all but
begged the legislature to create a statewide public defender system,** specifically
“(...continued)
Of course States may decide, based on their own
constitutions or public policy, that counsel should be
available for all indigent defendants charged with
misdemeanors. Indeed, many, if not a majority of States
guarantee the right to counsel whenever imprisonment is
authorized by statute, rather than actually imposed.
Id. (citing illustrative statutory provisions from the states of Alaska, California, and New
Hampshire.).
“See Commonwealth v. Ivey, supra note 1 at 457 (“The legislature could and did
provide for a more generous policy of appointing counsel for indigents, an action which
is entirelv consistent with its control of the purse strings of the Commonwealth.”
(emphasis added)); Commonwealth v. Stamps, supra note 6 at 339 (“Such right to
counsel for a needy person as exists in an RCR 11.42 proceeding is provided by rule
and bv statute.” (emphasis added)). See also Lewis v. Lewis, Ky., 875 S.W.2d 862
(1993) (finding a right to counsel in civil contempt proceedings premised exclusively on
the basis of Kentucky statutory law: “[W]e hold that the statutes of the Commonwealth
reauire that an indiaent oerson has a riaht to aDoointed counsel in civil contempt
proceedings prior to the execution of an order of incarceration.” Id. at 864 (emphasis
added)). KRS Chapter 31 itself, of course, refers to “any right provided by this chapter”
in a provision allowing waiver of counsel. KRS 31.140(l) (emphasis added).
2’See RCr 3.05(2) (“If the defendant demonstrates that he or she is a needy
person as defined in KRS 1 .I20 and the court so concludes, then the appointment shall
continue for all future stages of the criminal proceeding.” (emphasis added)).
22&Warner v. Commonwealth, Ky., 400 S.W.2d 209, 211-212 (1966) (“We
think it is appropriate for the time to defer to legislative action.“); Jones v.
Commonwealth, Ky., 411 S.W.2d 37, 38 (1967) (“[W]e note that the General Assembly
has not had an opportunity since publication of the opinion in Warner to act upon the
problem; and until then we shall continue to be disposed to defer to legislative action.“);
Commonwealth. Dept. of Corrections v. Burke, Ky., 426 S.W.2d 449, 450 (1968):
Appellee insists this vital matter of compensation involves
the “administration of justice” and urges us to devise some
system for the allowance of reasonable attorneys’ fees as
(continued.. .)
-9-
asked the General Assembly for guidance as to how such a system should be
administered,23
and, when the General Assembly finally adopted KRS Chapter 31,
celebrated it as a proper exercise of the legislative authority:
No better statement of the basic concept of the doctrine of
separation of powers can be made that that contained in No.
78 of the Federalist Papers. Here, Hamilton states:
“Whoever attentively considers the different
departments of power must perceive that, in a
government in which they are separated from
each other, the judiciary, from the nature of its
functions, will always be the least dangerous to
the political rights of the Constitution; because
it will be least in a capacity to annoy or injure
them. The executive not only dispenses the
22(. xontinued)
necessary costs of administering the criminal laws of this
Commonwealth. A present insurmountable obstacle is that
no system we could devise would be workable since the
judiciary has no funds available for this purpose. Although
appellee argues to the contrary, we believe this subject is,
and should be, a legislative matter. Only the legislature can
provide sufficient funds to finance such a project, and of
course the legislature must necessarily create the system
under which these funds could be properly disbursed.
This very serious problem has been before us recently in
Warner v. Commonwealth and Jones v. Commonwealth. In
both cases, we expressed our intention to defer to legislative
action. It is almost a matter of necessity that we do so.
. . . We cannot refrain from expressing the wish that other
departments of government recognize this grave problem
and take appropriate steps, as has been done in other
states, to rectify the situation.
Id. (citations omitted); Jones v. Commonwealth, Ky., 457 S.W.2d 627 (1970) (“Hopeful
that . . . acceptable solutions to the problem may be forthcoming, we shall continue for
the present to defer any judicial action.“).
23$& Commonwealth, Dept. of Corrections v. Burke, supra note 22 at 450 (“But
in the absence of some law. . . there is simply nothing to guide us with respect to the
manner in which this appropriation could be properly expended.“); Jones v.
Commonwealth (1970) supra note 22 at 632 (“A difficulty with a judicial direction for
payment would be in the lack of any standards or guide for determining reasonableness
of compensation and of any system for payment.“).
-lO-
honors but holds the sword offhe community.
The legislature not onlv commands the Dufse
but Drescribes the rules bv which the duties
and riuhts of ever9 citizen are to be reaulated.
The judiciary, on the contrary, has no influence
over either the sword or the purse; no direction
either of the strength or of the wealth of the
society, and can take no active resolution
whatever. It may truly be said to have neither
FORCE nor WILL but merely judgment; and
must ultimately depend upon the aid of the
executive arm even for the efficacy of its
judgments.” (emphasis supplied).
In the context presented, we are persuaded that it is the
duty of the executive department to enforce the criminal
laws, and it is the duty of the legislative department to
appropriate sufficient funds to enforce the laws which they
have enacted. The proper duty of the judiciary, in the
constitutionally ideal sense, is neither to enforce laws nor
appropriate money. The judiciary’s reason for existence is
to adjudicate.
With these principles considered, we now declare: First,
the system of court-appointed uncompensated counsel does
not meet the constitutional standards of either the
Constitution of the United States or the Constitution of this
State.
Second, the Kentucky Public Defender Act of 1972
appears to provide means adequate to observe the required
standards, if that act is properly construed, administered,
and promptly put into operation.24
KRS 31 .I IO in no way infringes upon the judicial branch’s authority to “prescribe
. . . rules of practice and procedure for the Court of Justice,“25
but rather creates a
statutory right to appointed counsel which allows indigent prisoners the equal protection
of the laws. The Court of Justice is, by necessity, a part - indeed a vital part - of the
administration of Kentucky’s established system for providing legal representation to
indigent persons. In so doing, we do not abdicate any constitutional powers conferred
24Bradshaw v. Ball, Ky., 487 S.W.2d 294, 299 (1972) (citation omitted and
underlined emphasis added).
25K~~~~~~
CONSTITUTION $j 116.
-1 I-
upon the judiciary, but rather we fulfill our duty as a separate branch of government.
The majority’s contrary conclusion is impossible to reconcile with this Court’s explicit
declaration, in Pillersdorf v. Dept. of Public Advocacy,26
that the operation of the KRS
Chapter 31 statutory framework does not implicate the judicial authority:
This is not a seoaration of powers case because . . . no
ultimate Dower of the iudiciarv (or anv other branch of
government) is in auestion. . . . This case is about the
relevant provisions of the Kentucky Public Defender Act,
KRS Chapter 31, and how to operate within its statutory
framework.
KRS Chapter 31 is a comprehensive network of statutes
enacted by the legislature in response to the dilemma
created by both state and federal constitutional guarantees
of effective representation for indigent defendants. The
choice was clear: the state either must see that a defendant
is provided counsel or it cannot proceed with a prosecution.
In Bradshaw v. Ball, this Court considered the question of
whether the Commonwealth was required to compensate
court-appointed attorneys representing indigent defendants.
’ *of equal consequence for the present case, the Court also
addressed the separation of powers concern of where, in
government, the practical task of providing effective counsel
lies. . . .
In 1972, the year of the Bradshaw decision, the General
Assembly enacted the Kentucky Public Defender Act, KRS
Chapter 31. In both sources of law, the allocation of
resoonsibilities connected with the appointment of counsel
for indiaent defendants and the settina of fees are consistent
with the seoaration of oowers concept long ago exoressed
bv Alexander Hamilton, and now embedded in our system of
jurisprudence.*’
No doubt the General Assembly’s collective head will spin as it attempts to comprehend
how this Court can tacitly accept direct intrusion upon the judicial power,28 but then
26Ky., 890 S.W.2d 616 (1995).
271d. at 618-619 (italicized emphasis in original, underlined emphasis added).
28a Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987) (“[W]e decline to
(continued.. .)
-12-
dismiss three (3) decades of jurisprudence and manufacture a separation of powers
controversy to justify “protecting our turf” in the realm of appointment of counsel.
In !!&y, this Court properly found that KRS 31.110 creates a statutory right to
appointment of counsel for needy persons in post-conviction proceedings. Today’s
majority takes a giant leap backwards for no coherent reason. Because the prevailing
view holds merely that trial courts are not required to appoint counsel unless the merits
of the original RCr 11.42 petition require an evidentiary hearing, I would encourage the
trial courts of this state to continue to make such appointments when requested for the
purpose of supplementing RCr 11.42 petitions. I find it disconcerting that a majority of
this Court does not recognize the importance of appointing counsel in post-conviction
matters for needy persons who cannot afford to retain their own counsel. The General
Assembly recognized the need for an equal playing field when it adopted KRS Chapter
31. Today’s majority opinion derails the legislature’s efforts and, unfortunately, restores
the “inequity between the needy and affluent”*’ which, in &y, this Court found “cured
by the statute.“30
Stumbo, J., joins this opinion, concurring in part and dissenting in part.
28(. .-continued)
hold K.R.S. 532.055 unconstitutional, and we accept its provisions for the time being
under the principles of comity.” Id. at 798).
29Commonwealth
v. Ivey, supra note 1 at 458.
-13-
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