Ray v. Commonwealth
| Decision Date | 27 May 2016 |
| Docket Number | NO. 2014-CA-001998-MR,2014-CA-001998-MR |
| Parties | PATRICK WAYNE RAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
PATRICK WAYNE RAY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
NO. 2014-CA-001998-MR
Commonwealth of Kentucky Court of Appeals
MAY 27, 2016
NOT TO BE PUBLISHED
APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT COSTANZO, JUDGE
ACTION NO. 08-CR-00004
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES.
CLAYTON, JUDGE: Patrick Wayne Ray appeals the order of the Bell County Circuit Court, denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without a hearing. On appeal, Ray alleges that his counsel was ineffective for failing to file a motion to suppress his statement to the police, and for failing to
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advise him that he would not be eligible for parole until he served eighty-five percent of his sentence. For the reasons stated herein, we affirm.
On January 14, 2008, Ray was indicted by a Bell Circuit grand jury, which charged him with first-degree rape and first-degree sodomy. The indictment arose out of events which took place on June 8, 2007, when Ray had sexual intercourse with his eight-year-old step-daughter while her mother was asleep on the couch. On May 6, 2008, on the advice of counsel, Ray waived his constitutional right to proceed to trial and entered a guilty plea to both charges. In exchange for his plea of guilty, Ray received thirty-five years' imprisonment.
On April 4, 2011, Ray filed his RCr 11.42 motion to vacate his convictions. As basis for his motion, Ray argued that he received ineffective assistance of trial counsel when counsel allegedly failed to move to suppress his statement obtained in violation of his Fifth Amendment right to counsel, and failed to inform him of eighty-five percent parole eligibility. The trial court denied Ray's motion on August 11, 2011, without explanation and without an evidentiary hearing. Ray appeals the order denying his motion arguing that the trial court erred when it denied his motion without an evidentiary hearing.
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To establish a valid claim of ineffective assistance of counsel, a defendant must satisfy both the deficient performance and prejudice prongs established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2053, 2064, 80 L.Ed.2d 674 (1994); accord Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). To satisfy the deficient performance prong, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. The prejudice prong is satisfied where a reasonable probability exists that but for counsel's unprofessional errors the result of the proceeding would have been different. 466 U.S. at 694, 104 S.Ct. at 2068. In the context of a guilty plea, in order to establish prejudice, a defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have instead insisted on going to trial. Premo v. Moore, 562 U.S. 115, 129, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011).
Pursuant to RCr 11.42(5), a hearing on a motion to vacate is only required if the motion raises issues that cannot be determined on the face of the record. As our Supreme Court explained, "[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.... The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). Accordingly, where, as here, an RCr 11.42 hearing is denied, our review is limited
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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).
Ray first argues that he received ineffective assistance of counsel when his trial attorney failed to bring a meritorious pretrial motion to suppress his illegally obtained statement.1 Ray contends that during the course of the investigation, he was questioned by the Middlesboro Police department regarding the allegations. He insists that after he was read his Miranda2 rights he requested counsel, but the police officer continued with questioning. He claims that he informed his trial attorney of these events, but counsel failed to file any pretrial motions to suppress the statements. Ray believes he was prejudiced because had his statement been suppressed, counsel would not have advised him to plead guilty. However, after reviewing the record, we believe that Ray has failed to meet his burden in establishing ineffective assistance of counsel.
In the guilty plea context, a movant "must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion
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that could undermine the prosecution's case, or the realistic potential for a lower sentence." Stiger v. Commonwealth, 381 S.W.3d 230, 236-237 (Ky. 2012). We are not convinced that had counsel successfully moved to suppress Ray's alleged statement, the decision to go to trial would have been rational. Even if we assume that Ray made inculpatory statements during his alleged interview with the police, suppressing those statements would not have significantly undermined the prosecution's case.
The Commonwealth's evidence against Ray included the testimony of the eight-year-old victim and a medical examination corroborating her story. Had Ray proceeded to trial, he faced a life sentence.3 The plea agreement recommended by counsel, and voluntarily accepted by Ray, resulted in a significantly lower term of imprisonment, and a guarantee that he would one day be released. As the Supreme Court of Kentucky noted in Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009), there is "no ineffective assistance of counsel where defendant was advised to accept a reasonable plea agreement." Id. Here, counsel's advice to accept the plea "represent[ed] a meaningful choice between the probable outcome at trial and the more certain outcome offered by the plea agreement." Vaughn v. Commonwealth, 258 S.W.3d 435, 439 (Ky. App. 2008). Based on the evidence against Ray, trial counsel's advise to accept the plea was reasonable as was Ray's decision to accept it.
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Moreover, our Supreme Court has noted many times, RCr 11.42 is not a discovery mechanism. Hodge v. Commonwealth, 116 S.W3d 463 (Ky. 2003). (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). To proceed under the rule, a movant must allege specific facts which, if true, would constitute grounds for relief. A motion asserting insufficient grounds, speculative allegations, or allegations conclusively refuted by the record may be summarily dismissed. Id.
Here, Ray alleges that the police continued to question him after he asserted his constitutional right to counsel; however, he fails to provide any...
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