Roach v. Commonwealth, 2011-CA-001319-MR

CourtCourt of Appeals of Kentucky
Docket NumberNO. 2011-CA-001319-MR,NO. 2012-CA-000541-MR,2011-CA-001319-MR,2012-CA-000541-MR
Decision Date27 March 2015




ACTION NO. 02-CR-000273




ACREE, CHIEF JUDGE: Joseph Roach appeals from two orders of the Jefferson Circuit Court, the first entered on June 30, 2011, denying his motion for RCr111.42 relief, and the second entered on March 5, 2012, denying his motion for CR2 60.02 relief. We affirm.

I. Facts and Procedure

In 2005, Roach was convicted of murder, misdemeanor theft by unlawful taking, and misdemeanor sexual abuse. He was sentenced to life imprisonment. Roach appealed as a matter of right to the Kentucky Supreme Court; the Court affirmed Roach's convictions. Roach v. Commonwealth, 2005-SC-0211-MR, 2006 WL 2986492, at *1 (Ky. Oct. 19, 2006). In so doing, the Court summarized the facts of the underlying criminal matter as follows:

Roach and another male [John Drake] went to the apartment of the victim . . . where Roach and the woman smoked crack cocaine. Roach asked [John] to leave because he intended to have sex with the victim in exchange for giving her more crack cocaine. Roach later woke [John] who was sleeping in the car and they both returned to the apartment. The victim had been severely beaten about the head with what was believed to be a golf club and she had been choked. She was found dead by a neighbor the next day. Roach and [John] had tried to wash the victim's body and cleaned off fingerprints from her apartment. They also took several video tapes and a VCR from the apartment. The VCR was located at [John's] apartment while Roach retained possession of several video tapes.

Id. No DNA or fingerprints belonging to Roach or John were found in the victim's apartment.

Before Roach's trial, John pleaded guilty to facilitation to murder and robbery in exchange for his testimony against Roach. John was sentenced to serve fifteen years in prison.

On June 19, 2007, Roach, pro se, sought relief from his conviction under RCr 11.42, alleging ineffective assistance of counsel. Roach claimed his trial counsel failed to: (i) interview John's brother, Hugh Drake; and (ii) request supplemental mitochondrial DNA testing.

Almost four years later, on March 15, 2011, Roach filed a pro se supplemental RCr 11.42 motion asserting, for the first time, a claim of ineffective assistance of appellate counsel (IAAC). Specifically, Roach asserted the circuit court erroneously refused to permit his trial counsel to present expert testimony by avowal. Roach argued that his appellate counsel failed to raise on direct appeal what he considered the trial court's clear error.

By order entered June 30, 2011, the circuit court denied Roach's RCr 11.42 motion without explanation. Roach timely appealed.

Concomitantly with his supplemental RCr 11.42 motion, on March 17, 2011, Roach moved to modify his sentence pursuant to CR 60.02(e) and (f) based upon newly discovered evidence that allegedly revealed John, not Roach, had murdered the victim. Specifically, Roach asserted that John, while incarcerated, repeatedly confessed to murdering the victim himself, admitted that Roach did not partake in the killing, and admitted he perjured himself at Roach'strial to obtain a more lenient sentence. To substantiate his claim, Roach submitted three affidavits from other inmates who claimed to have heard John's confessions.

The Commonwealth opposed Roach's CR 60.02(e), (f) motion, describing it as a CR 60.02(b) motion in disguise, and arguing that it was time-barred because it was predicated upon an allegation of newly discovered evidence which is subject to a one-year time limitation. The circuit court agreed, finding that "Roach's motion rests entirely upon newly discovered evidence . . . . [Therefore,] CR 60.02(b) applies, and as this motion is made in excess of one year from the date of judgment, the motion is time barred[.]" (R. at 1523-24). By order entered March 5, 2012, the circuit court denied Roach's CR 60.02 motion. Roach also appealed from this order.

We have consolidated these appeals in the interest of judicial economy.

II. RCr 11.42

Roach argues the circuit court erred when it denied his RCr 11.42 motion without first conducting an evidentiary hearing. Roach contends that the record offers no explanation as to why appellate counsel failed to raise the avowal issue on direct appeal, and is likewise silent as to why trial counsel failed to interview Hugh Drake prior to trial. Because these issues cannot be resolved by resorting to the record alone, Roach contends, an evidentiary hearing was warranted.

A. Standards Governing Our Review

Not every claim of ineffective assistance merits an evidentiary hearing. Nor is an RCr 11.42 movant automatically entitled to one. See Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). The law on this issue is clear: the circuit court need only conduct an evidentiary hearing if (i) the movant establishes that the error, if true, entitles him or her to relief under RCr 11.42; and (ii) the motion raises an issue of fact that "cannot be determined on the face of the record." Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (citation omitted). With respect to the former, to warrant RCr 11.42 relief, "[f]irst, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

An evidentiary hearing is certainly not necessary to consider issues already refuted by the record. Stanford, 854 S.W.2d at 743-44. Neither this Court nor the circuit court, however, is permitted to casually "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, absent evidence in the record refuting the allegations raised, provided it would otherwise warrant relief under RCr 11.42, an evidentiary hearing must be conducted. Parrish, 272 S.W.3d at 166.

It has been said often that a defendant only has a right to "counsel likely to render reasonably effective assistance" and "is not guaranteed errorless counsel, or counsel judged ineffective by hindsight[.]" Fegley v. Commonwealth,337 S.W.3d 657, 659 (Ky. App. 2011). With the above standards in mind, we turn to Roach's ineffective-assistance allegations.

B. Ineffective Assistance of Appellate Counsel

Roach contends the circuit court erred by overruling his IAAC claim without first conducting an evidentiary hearing. In Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010), as modified (April 21, 2011), the Supreme Court announced for the first time that criminal defendants may collaterally attack their convictions on the grounds that they received ineffective assistance of appellate counsel. Id. at 434. Before turning to the merits of Roach's argument, we first address the Commonwealth's contention that we need not consider this argument because Roach's IAAC was raised in an untimely supplemental RCr 11.42 motion that did not relate back to his original motion.

In Kentucky, a defendant has "three years after the judgment [of conviction] becomes final" to file any motion to vacate under the rule. RCr 11.42(10). The time for filing an RCr 11.42 motion runs from the date on which the appellate court enters its judgment on direct appeal, rather than from the date on which the trial court entered the judgment of conviction. Palmer v. Commonwealth, 3 S.W.3d 763, 764-65 (Ky. App. 1999).

In this case, the circuit court entered its judgment of conviction and sentence in February 2005. The Kentucky Supreme Court affirmed Roach's conviction on direct appeal on October 19, 2006, and the decision became final on November 9, 2006. CR 76.30(2)(a) ("An opinion of the Supreme Court becomes final on the21st day after the date of its rendition unless a petition under Rule 76.32 has been timely filed[.]"). Thus, Roach had until November 9, 2009, to seek relief pursuant to RCr 11.42. Without question, Roach's original motion, filed on June 19, 2007, fell within the three-year time limit of RCr 11.42(10). The issue lies with Roach's supplemental RCr 11.42 motion, which was not filed until March 15, 2011 - one and one-half years after the three-year period had elapsed.

In Roach3 v. Commonwealth, 384 S.W.3d 131 (Ky. 2012), our Supreme Court held that the movant's amended RCr 11.42 motion, which raised claims factually unrelated to the claims raised in his original motion, did not relate back and were untimely. Id. at 138. The Court noted that "[n]either RCr 11.42 itself, nor any other provision of the Criminal Rules, addresses whether and how motions under the rule may be amended" or supplemented. Id. at 135. Invoking the authority of RCr 13.04,4 the Court turned to CR 15, which allows "amendments [to pleadings] offered after the statute of limitations has run [to] relate back to the date of the (timely) original pleading provided that the 'claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'" Id. at 135-36 (quoting CR 15.03(1)).

Unfortunately, neither Roach nor the cases it cites for this principle5 explains why rules designed solely to provide a means by which "[a] party may amend his pleading[,]" CR 15.01 (emphasis added), so that "the amendment relates back to the date of the original pleading[,]" CR 15.03 (emphasis added), can be used to amend and relate back to the original RCr 11.42 motion. The civil rules, CR 7.01 and CR 7.02, clearly distinguish between pleadings and motions; a motion is not a pleading. See also Kentucky Lake Vacation Land, Inc. v. State Property and Bldgs. Comm'n, 333 S.W.2d 779, 781 (Ky. 19...

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