Fraser v. Com., 1999-SC-0846-DG.

• Decision Date: 27 September 2001
• Docket Number: No. 1999-SC-0846-DG.,1999-SC-0846-DG.
• Citation: 59 S.W.3d 448
• Parties: Robert FRASER Appellant v. COMMONWEALTH OF KENTUCKY Appellee
• Court: United States State Supreme Court — District of Kentucky

Page 448

59 S.W.3d 448

Robert FRASER Appellant v. COMMONWEALTH OF KENTUCKY Appellee

No. 1999-SC-0846-DG.

Supreme Court of Kentucky.

September 27, 2001.

COPYRIGHT MATERIAL OMITTED

John Palombi, Misty Dugger, Assistant Public Advocates, Department of Public Advocacy, Frankfort, Counsel for Appellant.

A.B. Chandler, III, Attorney General, Connie Vance Malone, Paul D. Gilbert, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

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, Boykin 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 .¹

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 ...." 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 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.

I. 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. Douglas 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 post-conviction 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 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 Kentucky 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) (1958 Ky. Acts, ch. 45, § 1; repealed 1968 Ky. Acts, ch. 152, § 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.² Exercising the inherent rulemaking 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.

. . .

(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. Ropke, 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, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994); Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967). The trial judge may not simply disbelieve factual allegations in the absence...