McKinney v. Com.

• Decision Date: 17 October 1969
• Citation: 445 S.W.2d 874
• Parties: Leonard McKINNEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 874

445 S.W.2d 874

Leonard McKINNEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 17, 1969.

Leonard McKinney, pro se, A. James Higgs, Dailey & Fowler, Frankfort, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

STEINFELD, Judge.

This is an appeal from a judgment of the circuit court denying post-conviction relief demanded pursuant to RCr 11.42. We affirm.

On October 11, 1954, appellant, Leonard McKinney, then age 30, was indicted for rape, kidnapping, shooting and wounding with intent to kill and shooting without wounding with intent to kill. A lawyer was appointed that same day to represent McKinney, an indigent, and trial was set for October 15, 1954. On arraignment on the 12th day of October, 1954, both the prosecution and defense announced that they were ready for trial. Action on advice of his counsel, McKinney pled guilty to the rape charge and a jury was impaneled which imposed a life sentence. The other charges against McKinney were abandoned. His 12-year stay in the penitentiary was interrupted by an escape and on two occasions by parole, but for infractions he was returned to prison.

On September 12, 1967, McKinney filed the present proceedings pro se, seeking to set aside the judgment on the claim that constitutionally guaranteed rights were denied him. A hearing was conducted in the Jackson Circuit Court at which McKinney was represented by counsel appointed by that court, but the relief demanded by McKinney was denied. He appealed here pro se, but later moved that this court appoint counsel to assist him. We sustained that motion and his appointed attorney filed a comprehensive brief. McKinney claims:

'(1) That he was denied at trial a continuance needed to secure the attendance of his witnesses (2) That he was coerced and intimidated into entering a plea of guilty;

(3) That the indictment under which appellant entered a plea of guilty charged him with committing the offense for which he was indicted at a time when he was in fact incarcerated;

(4) That he was denied effective assistance of counsel, both at trial and preparatory thereto.'

McKinney's counsel abandoned the first claim, the denial of a continuance for the reason '* * * that the appellant apparently admitted that neither he nor his attorney had in fact asked for a continuance and further that the only witness whose attendance appellant apparently sought was in fact present in the Courtroom.'

Appellant testified, and there was some corroboration of that testimony, that the deputy sheriff into whose custody he had been placed told him that he would be shot if he did not enter a plea of guilty. He also stated that the prosecuting attorney threatened to try him on several charges if he did not plead guilty to the rape charge. Testimony showed that a big crowd had gathered and appeared to be plotting against McKinney. A newspaper clipping was filed which reported that an officer at London told a Jackson County deputy that seven or eight carloads of men from the alleged rape victim's county had been driving around in London. It is contended that these circumstances so intimidated McKinney that his plea of guilty was not entered on his own free will and volition.

The Commonwealth notes that the testimony regarding the threats of shooting was generally refuted although it conceded that remarks were made by the deputy sheriff that McKinney 'ought to be took out and shot' or 'ought to be hung in the court house yard'. The trial court in its findings of fact and conclusions of law made pursuant to RCr 11.42(6) said:

'I believe that it is too late, after thirteen years, to appear before this Court and say that he was threatened and coerced into entering a plea which he did not want to do at the time. The Court feels sure that if he had explained this to the Judge of this Court in the year 1954, that the Court would have taken whatever steps were necessary to see that his rights were protected. And since he failed to do that on the day that he was tried, while he was in the penitentiary, or while he was out on probation, then the Court finds that he was not coerced or intimidated in any manner by any member of this Court to get him to enter a plea of guilty upon the charge.'

We hold that there was sufficient evidence in the record on which the court could make that finding and that there was no error in its doing so.

With respect to the claim that McKinney was incarcerated at the time when the indictment charges the offenses were committed, we observe that an erroneous date may have been stated in the indictment which easily could have been corrected. Furthermore, the plea of guilty destroyed the right of McKinney to now claim he had an alibi.

Finally we reach the contention that McKinney was denied effective assistance of counsel before and during the trial. Wedding v. Com., Ky., 394 S.W.2d 105 (1965). Present counsel charges that the indictment was defective and that the defect should have been relied upon. The simple answer is that the rror could have been corrected or another indictment returned. Stone v. Com., Ky., 418 S.W.2d 646 (1967) cert. den. 390 U.S. 1010, 88 S.Ct. 1259, 20 L.E.2d 161. We assume that counsel concluded it would have been futile to move to quash the indictment, therefore, he waived the defect. Clark v. Com., Ky., 418 S.W.2d 241 (1967). Also see Brooks v. Com., Ky. (decided October 10, 1969). The criticism here is quite like that made in Davenport v. Com., Ky., 390 S.W.2d 662 (1965), in which we said: 'Moreover, no defect in an indictment short of one that completely vitiates it affects the validity of the proceedings.'

It is next charged that '* * * there is no entry in the record indicating that an arraignment was actually held, nor any indication of what plea the appellant entered at arraignment, nor any indication that appellant was represented by counsel at arraignment.' The record shows that on the 11th day of October, 1954, an order was entered...