Wells v. Commonwealth
| Decision Date | 09 March 2018 |
| Docket Number | NO. 2016-CA-001559-MR,NO. 2016-CA-001479-MR,2016-CA-001479-MR,2016-CA-001559-MR |
| Parties | MICHAEL ALAN WELLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEALS FROM EDMONSON CIRCUIT COURT
In 2010, Appellant was indicted on ten counts of first-degree rape, six counts of first-degree sodomy, twenty counts of first-degree sexual abuse, thirty counts of first-degree unlawful transaction with a minor, and three counts of second-degree unlawful transaction with a minor for offenses that occurred between February 2006 and November 2010. Appellant initially pled not guilty to all charges. However, on January 30, 2012, the second morning of trial, Appellant withdrew his not guilty pleas and entered an Alford1 plea of guilty to ten counts of second-degree rape and five counts of first-degree sexual abuse. He was subsequently sentenced to a total of fifteen years' imprisonment.
On August 7, 2013, Appellant filed a pro se motion to vacate his sentence pursuant to RCr 11.42. Therein, Appellant contended that (1) the indictment violated his due process rights because it failed to specify any dates, times, actions or circumstances upon which the charged offenses occurred; (2) his counsel was ineffective for failing to appeal the trial court's denial of his motion to quash the indictment based upon the same due process grounds; and (3) his plea was not knowing and voluntary. The Commonwealth did not file a response toAppellant's RCr 11.42 motion. The record indicates that on February 9, 2014, Appellant sent a letter to the circuit court clerk inquiring about the status of his motion and on June 30, 2014, filed a renewed copy of the motion.
In October 2015, Appellant filed a pro se supplemental RCr 11.42 motion alleging additional claims of ineffective assistance of counsel, including counsel's failure to investigate Appellant's claim that he had been in a severe car accident and was hospitalized and under heavy medication during part of the time period in question, and also his claim that the victims had a motive to lie. Again, the Commonwealth did not file a response to Appellant's supplemental motion.
In June 2016, Appellant filed a pro se motion for resentencing pursuant to KRS 532.050 based on a corrected presentence investigation report (PSI). Therein, Appellant argued that his PSI contained false, misleading and irrelevant information and that such caused him to be mis-classified by the Department of Corrections (DOC). Appellant argues that his counsel was aware of errors in the report and assured him that the report would be corrected. However, Appellant contends that counsel never followed through and, in fact, conspired with the court clerk to prevent correction of the report. The Commonwealth responded that Appellant and counsel confirmed on the morning of sentencing thatthey had reviewed the PSI report and did not refute the contents thereof.2 Further, the Commonwealth pointed out that although Appellant's motion identify numerous page, paragraph and line numbers where he contended the information was wrong, he did not actually explain what the perceived errors were. Finally, the Commonwealth argued that Appellant did not contend the PSI affected his sentence but rather his classification by the DOC, which is an administrative issue. any errors with the PSI. By order entered September 14, 2016, the trial court denied Appellant's motion. Appellant filed a pro se appeal in this Court on October 3, 2016 (2016-CA-1479).
Appellant filed a pro se appeal in this Court on October 18, 2106 (2016-CA-001559). By Order of this Court entered on January 23, 2017, the two appeals were consolidated.
In this Court, Appellant argues that he is entitled to be resentenced because the trial court relied upon a PSI that contained false and misleading information. Further, Appellant contends that use of the incorrect PSI resulted him in being mis-classified by the DOC. We find Appellant's arguments to be without merit.
Appellant complains that although he reviewed the PSI with counsel, he was unable to truly understand its contents or its effect on his conditions in prison because he was heavily medicated. We find Appellant's reliance on KRS 532.050(6) to be misplaced. The record indicates that the trial court followed the requirements of that statute. Defense counsel was provided a copy of the PSI prior to the sentencing hearing and discussed the contents with Appellant as shown by counsel's statement on the record that there were no corrections to the PSI necessary prior to sentencing. The trial court also specifically asked Appellant if he had reviewed the PSI, which he replied affirmatively. As such, the record establishes that Appellant was aware of and given a fair opportunity to controvert the contents of the PSI. See Commonwealth v. Bush, 740 S.W.2d 943 (Ky. 1987). The statute does not require the trial court to correct a PSI after the conviction has become final. Thus, the trial court complied with the requirements of KRS 532.050(6).
Furthermore, even if Appellant could raise a belated challenge to the PSI, he has not shown that any misinformation in the PSI has actually negatively affected his conditions of imprisonment. First, it is unclear that the substantive information in the PSI was actually incorrect. While Appellant challenges severalitems in the report, he fails to explain in what manner any are "false or misleading." In addition, it is well established that a prisoner has no inherent right to a particular security classification or to be housed in a particular institution. Mahoney v. Carter, 938 S.W.2d 575, 576 (Ky. 1997).
Appellant has not demonstrated that he suffered any cognizable injury because of alleged inaccuracies or problems with the content of the PSI. Consequently, we conclude that the trial court did not err in denying his motion for resentencing.
In this Court, Appellant argues that (1) the trial court erred in summarily overruling his motion in response to the mandamus action; (2) trial counsel rendered ineffective assistance which resulted in him entering an Alford plea "while under influence of pain medication"; and (3) the trial court erred in denying an evidentiary hearing where the grounds asserted in his motion could not be refuted from the record. The Commonwealth responds that Appellant's motion was subject to summary dismissal because it was not verified, and further that the motion was "an improper, successive motion under RCr 11.42(3) since another appeal on an RCr 11.42 motion is pending in [2014]-CA-000169."3
In an RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of substantial rights that would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). An evidentiary hearing is warranted only "if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049 (1994); RCr 11.42(5). See also Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026 (1999). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard v....
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