Moss v. Commonwealth, No. 2006-CA-002096-MR (Ky. App. 2/8/2008)
| Decision Date | 08 February 2008 |
| Docket Number | No. 2006-CA-002096-MR.,2006-CA-002096-MR. |
| Parties | Charles MOSS, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Appeal from Ballard Circuit Court, Honorable William Lewis Shadoan, Judge, Action No. 01-CR-00066.
Delbert K. Pruitt, Paducah, Kentucky, Brief for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Ken W. Riggs, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: DIXON and KELLER, Judges; GRAVES,1 Senior Judge.
Charles Moss has appealed from the September 5, 2006, order of the Ballard Circuit Court denying his RCr 11.42 motion to vacate or set aside his sentence of imprisonment. We affirm.
On September 21, 2001, the Ballard County grand jury indicted Moss on three counts of Use of a Minor in a Sexual Performance, pursuant to KRS 531.310 (Class B felony); one count of First-Degree Unlawful Transaction with a Minor under Age 16, pursuant to KRS 530.064 (Class C felony); three counts of First-Degree Sexual Abuse, pursuant to KRS 510.110 (Class D felony); and two counts of First-Degree Criminal Abuse, pursuant to KRS 508.100 (Class C felony). All of the charges stemmed from events that took place during June, July, and August of 2001 while Moss was taking care of three children (a 7-year-old boy and two girls, aged 8 and 11) while their mother was out or at work. Moss eventually pled guilty to all of the charges and was sentenced to a total of fifty years' imprisonment by judgment entered June 7, 2002.
On June 10, 2005, Moss, by counsel, filed a motion to vacate pursuant to RCr 11.42, arguing that his guilty plea was not knowing, voluntary, or intelligent.2 Moss asserted that he was induced into entering into the plea through improper consultation with his attorney, claiming that some of the charges to which he pled guilty were precluded by double jeopardy. Moss also cited his long history of mental illness. The Commonwealth objected to the motion, arguing that there was no factual basis that the plea had been induced, that there was no proof of his mental illness, and that Moss's lack of decisiveness was related to his desire not to go to prison, rather than a lack of understanding of the plea process. The Commonwealth noted that, if convicted, Moss faced a potential maximum sentence of 105 years' imprisonment and a potential minimum of forty-eight years' imprisonment, which was further proof of the beneficial nature of the plea agreement. In addition, the Commonwealth disputed that any double jeopardy issues existed, as all of the charges were based on separate and distinct crimes with separate victims.
The circuit court first denied Moss's motion for an evidentiary hearing, as the record refuted the allegations in his motion. The circuit court then denied the RCr 11.42 motion, finding that Moss failed to satisfy his burden of proof necessary to grant the relief he requested. This appeal followed.
On appeal, Moss continues to argue that his guilty plea was not knowing, voluntary, or intelligent. He points to his responses during the plea colloquy, which he asserts reveal that he was unsure about entering the plea, as well as to his belief that some of the offenses to which he pled guilty could have potentially been precluded by double jeopardy. The Commonwealth first argues that Moss's RCr 11.42 motion was untimely filed, and then asserts that the circuit court properly denied Moss's motion for relief.
We shall first address the Commonwealth's argument that Moss's RCr 11.42 motion was untimely filed. Kentucky's Criminal Rules of Procedure provide that such motions "shall be filed within three years after the judgment becomes final," unless a listed exception applies, neither of which is applicable in this case. RCr 11.42(10). In the present case, the judgment was entered on June 7, 2002. Because he entered an unconditional guilty plea, Moss did not file a motion for a new trial pursuant to RCr 10.02 or pursue an appeal, nor did any party file a motion to alter, amend or vacate the judgment pursuant to CR 59.05.3
The Commonwealth relies upon this Court's opinion in Palmer v. Commonwealth, 3 S.W.3d 763 (Ky.App. 1999), to support its position that a judgment following a guilty plea is considered final on the day it is entered. Moss cites to the Supreme Court of Kentucky's earlier opinion of Commonwealth v. Marcum, 873 S.W.2d 207 (Ky. 1994), to assert that the circuit court's judgment did not become final until ten days after it had been entered, when no action was taken pursuant to RCr 10.02 or CR 59.05. We agree with Moss that the time for filing his RCr 11.42 motion did not begin to run until ten days following the entry of the judgment on June 7, 2002. We note that Palmer addresses what judgment is the conclusive judgment for purposes of when the time begins to run: "[T]he Supreme Court meant the conclusive judgment in the case, whether it be the final judgment of the appellate court on direct appeal or the judgment of the trial court in the event no direct appeal was taken." 3 S.W.3d at 765. However, Palmer does not address the specific date that the time begins to run. In Marcum, the Supreme Court made it clear that the judgment of the trial court "became final once ten days had elapsed with no action taken to alter, amend or vacate it[.]" 873 S.W.2d at 211. Unlike in Palmer, the Marcum Court addressed when the trial court's judgment became final. Finally, we note that RCr 11.42(10) calls for the three years to begin running "after the judgment becomes final," not three years after the conclusive judgment is entered. Based upon our review of the Rule and the applicable case law, we hold that the circuit court's decision in the present case became final on June 17, 2002, and that Moss timely filed his RCr 11.42 motion on June 10, 2005. Therefore, we shall address the merits of this appeal.
We shall first set out the standard of review in RCr 11.42 post-conviction actions. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and he bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874 (Ky. 1969). If an evidentiary hearing is held, we must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506 (Ky.App. 1983). If an evidentiary hearing is not held, our review is limited 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." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.App. 1986).
In Sparks, this Court addressed the validity of guilty pleas:
The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). There must be an affirmative showing in the record that the plea was intelligently and voluntarily made. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). However, "the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it." Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978), (citing Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970)).
Sparks, 721 S.W.2d at 727. Additionally, the Sparks Court addressed the two-part test used to challenge a guilty plea based upon ineffective assistance of counsel:
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