Lewis v. Com.

• Decision Date: 03 February 1967
• Citation: 411 S.W.2d 321
• Parties: Fred LEWIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 321

411 S.W.2d 321

Fred LEWIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 3, 1967.

Fred Lewis, pro se.

Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

Fred Lewis, a prisoner in the state penitentiary at Eddyville, appeals from an order of the Bell Circuit Court overruling without a hearing his RCr 11.42 motion to set aside a conviction and 4-year prison sentence imposed by that court on January 27, 1964, pursuant to his plea of guilty to an indictment charging him with detaining a woman against her will. KRS 435.110.

Our review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction. Cf. Baldwin v. Commonwealth, Ky., 406 S.W.2d 860 (1966); Coles v. Commonwealth, Ky., 386 S.W.2d 465 (1965); Warner v. Commonwealth, Ky., 385 S.W.2d 62, 64 (1964).

The record supporting the conviction shows that Lewis was indicted by the Bell County grand jury on October 8, 1963, and charged with having detained one Nell Honeycutt on or about August 26, 1963, against her will and for the purpose of having carnal knowledge of her. The indictment also charged three previous felony convictions. KRS 431.190. On January 6, 1964, an order was entered directing that Lewis be brought from the state prison to the Bell Circuit Court for arraignment and trial. The next entry is an order dated January 27, 1964, showing that he appeared in court with counsel, waived arraignment, pleaded guilty after the Commonwealth had waived the habitual criminal charge, and was sentenced to four years' imprisonment 'to run consecutively with the terms the defendant is now serving including term from Madison County, Kentucky.' Following allocution a judgment was entered accordingly on the same day.

The RCr 11.42 motion now under review alleges, among other things, the following facts and circumstances:

On August 26, 1963, Lewis was in the company of Nell Honeycutt and Linda Leath at the home of a man named Harris. Lewis took the two girls for a brief visit to the home of his mother, whom Nell knew. Upon their return to Harris' home Linda got out of the car and Nell accepted Lewis' invitation to accompany him elsewhere. Harris, who was infatuated with Nell, objected, but they drove off anyway, whereupon Harris called the sheriff and accused Lewis of having shot at Linda. When Lewis returned Nell to her home at about 4 o'clock that afternoon he was apprehended and arrested. On the following day he was bound over to the grand jury, taken to Frankfort and there held in jail incommunicado for a week, after which his parole from a 10-year sentence previously meted out by the Madison Circuit Court was revoked and he was recommitted to prison.

Five months later, on January 27, 1964, Lewis was brought from prison to the Bell Circuit Court and was there for the first time informed that he had been accused of detaining a woman against her will. He had assumed until then, he alleges, that he was being returned to face the shooting charge. Lewis was indigent and unable to employ counsel, so the trial court had appointed an attorney to represent him. With the approval of the trial court his counsel and the prosecuting attorney agreed on a guilty plea and four-year sentence to run consecutively with his prior sentences. Lewis did not accede to this arrangement, and demanded a jury trial, but his attorney said he would not try the case for him, that he had agreed to appointment on the basis of a guilty plea, whereupon a heated argument took place among the lawyers and the judge. According to his motion, Lewis then 'announced to the court that he had been brought before the court, charged with a crime he knew nothing about, and that he had no time to prepare a defense with counsel that he was a confined prisoner in the state penitentiary, with no money to employ counsel, to defend him. That in view of these facts, and that he lacked the qualifications to represent himself, that he had already pleaded guilty to a four (4) year sentence, to go ahead and run it anyway they wanted just take him back to prison.'

It is further alleged in the motion that Lewis was brought before the court and spectators handcuffed to a state trooper, was denied the opportunity of speaking to his accuser before entering a plea, was denied the right to consult with his counsel in private, and was threatened with a life sentence unless he entered a plea of guilty. Attached to the motion is an affidavit by Nell Honeycutt to the effect that Lewis did not detain her against her will and that she was not present when his case was called for trial, and an affidavit by Linda Leath to the effect that he had not at any time shot at her.

Though some of the facts therein stated are not alleged specifically in the motion, we quote the following excerpt from Lewis' brief as an apt summary of the position in which he found himself at the time the guilty plea was entered:

'The indictment was read to Appellant, which charged him with detaining Nell Honeycutt, against her will, to have Carnal knowledge with her, and three prior convictions of felonies. Appellant entered a Not Guilty plea. Counsel had been appointed for Appellant, prior to his arrivel in Court. Counsel informed Appellant that the Court had informed him, that the Court would agree to a 4 year sentence, or if he stood trial, he would have to defend himself, and in turn would receive a life sentence as a habitual Criminal.

'Appellant stated his desire of trial by Jury, and asked for Continuance, which was denied, and the Commonwealth announced ready for trial. No witnesses had appeared for the prosecution, or for the defense, and the prosecution was to be had upon a statement, procured by the Bell County Attorney and Bell County Parole Officer, supposely made by Nell Honeycutt.

'Due to this reason, Appellant had no Counsel to defend him, no chance to summon witnesses, and rather than face a stacked deck, with his life at state, petitioner accepted the 4 year sentence to a Crime never Committed, returned to prison, and started to gather evidence and other information, that would lead him to the whereabouts of Nell Honeycutt, which was finally accomplished, See Affidavit TR. p. 15. Upon this accumulation of facts Appellant presented in the trial Court his motion to vacate Judgment of Conviction as shown.'

In Higbee v. Thomas, 375 U.S. 13, 84 S.Ct. 79, 11 L.Ed.2d 41 (1963), the United States Supreme Court remanded to this court for further consideration a habeas corpus proceeding in which we had held that Higbee's petition alleging that he had been denied effective assistance of counsel and pleaded guilty under duress did not state grounds for relief. The facts recited by the petition in this respect were that 'counsel for the defense spent approximately three to five minutes with defendant prior to his assignment and therefore your petitioner did not and could not have a reasonable length of time to make, prepare and present an adequate defense,' etc., and that after 'the approximate three to five minute conference with said court appointed counsel who dominatedly...