Brooks v. Com.

• Decision Date: 10 October 1969
• Parties: Oval BROOKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 614

447 S.W.2d 614

Oval BROOKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 10, 1969.

As Modified on Denial of Rehearing Dec. 5, 1969.

Oval Brooks, pro se.

John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

Oval Brooks, a prisoner confined in the penitentiary on a life sentence for armed robbery, filed a motion pursuant to RCr 11.42 to vacate the judgment of conviction. The motion was denied without an evidentiary hearing, and this appeal followed. The appellant presented two grounds in his motion to vacate and urges them here: (1) It was illegal for him to be indicted for armed robbery subsequent to the setting aside of a previous conviction for assault with intent to rob, and (2) his plea of guilty was coerced by his court-appointed lawyer, who declined to adequately represent him because he was indigent.

Romel Ferguson was jointly indicted with the appellant, but he was tried upon a plea of not guilty before the appellant entered his guilty plea. Ferguson appealed his conviction to this court, but the judgment was affirmed. See Ferguson v. Commonwealth, Ky., 401 S.W.2d 225, cert. den., 385 U.S. 938, 87 S.Ct. 302, 17 L.Ed.2d 217, in which much background information pertinent to the present appeal is contained. It is noteworthy that Ferguson also received a life sentence at the hands of the jury.

The appellant and Ferguson were jointly indicted on March 2, 1964, by the Butler County grand jury. Nine separate indictments were returned against them, two of which were for assault with intent to rob, three for dwelling-house breaking, three for possession of burglarious tools, and one for grand larceny. Two of those indictments charged breaking into the dwelling house and robbery of Jasper Lindsey. On March 6, 1964, with court-appointed counsel, the appellant and Ferguson submitted guilty pleas to the charge of assault with intent to rob Lindsey in contravention of KRS 433.150 and waived trial by jury. Each of them was sentenced to imprisonment for life. The other indictments outstanding against appellant and Ferguson were then dismissed upon motion of the Commonwealth's attorney.

On April 29, 1964, appellant and Ferguson filed their joint motion to vacate their convictions pursuant to RCr 11.42, asserting many irregularities including ineffective assistance of counsel, threat of the death sentence if they refused to accept a life sentence on pleas of guilty, and unlawful search and seizure. After certain motions and responses were filed in that proceeding for vacation of the judgment, the motion to vacate was sustained by agreement of the parties at a hearing on June 8, 1964, at which time the indictment against appellant and Ferguson was dismissed over the objection of the Commonwealth, and the matter was referred to the grand jury of Butler County for further action. The grand jury for Butler County returned its indictment on July 9, 1964, charging the appellant and Ferguson with armed robbery of Jasper Lindsey, as denounced by KRS 433.140. The present conviction is under that indictment. Appellant and Ferguson were arraigned upon the indictment on July 10, 1964, appearing by counsel and entering pleas of not guilty. Various motions to dismiss the indictments were overruled, and the trial date was fixed for November 4, 1964. The record discloses that on November 4, 1964, the appellant, through his appointed counsel, moved the court for severance for purpose of trial as to the indictment for armed robbery. An order of that same date reflects that an attorney who had theretofore represented both defendants was permitted to withdraw as attorney for appellant Brooks, an attorney was then appointed for appellant, and his motion for separate trial was sustained. The Commonwealth elected to try Ferguson first, and appellant's trial was reassigned to November 12, 1964. As noted, Ferguson's trial resulted in his conviction and sentence to imprisonment for life.

When appellant's case was called on November 12, 1964, he appeared in open court with his attorney who had been appointed for him on November 4, 1964, and announced in open court, in the presence of his attorney, that he desired to enter a plea of guilty with the jury to fix his punishment. A jury was duly qualified and, after proper instruction by the trial judge, returned its verdict on the guilty plea fixing appellant's punishment at confinement in the penitentiary for life. The court record reflects the allocution at which appellant was afforded opportunity to show any legal cause why judgment should not be pronounced. He failed to disclose any such cause.

The motion to vacate now under consideration was filed March 3, 1969, with Brooks acting pro se. The gist of the first ground asserted in that motion is that the court acted vindictively in permitting Brooks to be indicted for armed robbery (KRS 433.140) rather than armed assault with intent to rob (KRS 433.150) of which he had formerly been convicted. Brooks asserts that the action of the trial court in permitting him to be indicted for armed robbery under the statute which at that time provided for punishment upon conviction of imprisonment for life, or death, demonstrated vindictiveness on the part of the prosecuting officials since he had previously been indicted and convicted under KRS 433.150, which then provided for twenty-one years or for life, or a death sentence. There is no merit in this argument. Nothing in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, or Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, affords comfort to the appellant in support of his contentions as to this argument. In North Carolina v. Pearce, the Supreme Court pointed out that whenever a judge imposes a more severe sentence upon a defendant after granting him a new trial the reasons for his so doing...