JAMES DALE RICE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
NOT TO BE PUBLISHED
The Appellant, James Dale Rice, appeals the February 2, 2012, order of the Fayette Circuit Court overruling his motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. On appeal, Rice argues that the court erred in denying his motion because he received ineffective assistance of counsel when counsel failed to investigate his ability to pay child support, and failed to seek a competency evaluation and hearing. The Commonwealth disagrees, and argues that the court properly rejected Rice's arguments and request for an evidentiary hearing on the basis of the evidence in the record. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
On June 27, 2006, the Fayette County Grand Jury indicted Rice for flagrant non-support and being a first-degree persistent felony offender (PFO). At a pre-trial conference, the Commonwealth's attorney had offered one year on count one, enhanced to ten years by count two, in exchange for the guilty plea. On July 7, 2006, trial counsel waived formal arraignment and entered a plea of not guilty on Rice's behalf. Thereafter, on August 4, 2006, trial counsel requested a continuance in order to obtain a paternity test through the family court because Rice had informed counsel that the mother had said the child was not his. However, it was later determined that Rice had submitted to a paternity test in 1989 and was in fact determined to be the father of the child.
Subsequently, on September 13, 2006, the Fayette Circuit Clerk was contacted by the Division of Mental Health and Substance Abuse of the Cabinet for Health and Family Services (hereinafter “Cabinet”). The Cabinet wrote a letter to the Clerk, informing the court that an appointment for Rice and other PFO-indicted individuals may be made at Eastern State Hospital to be examined by a psychiatrist or licensed clinical psychologist. The purpose of that examination would have been to “determine his mental condition and the existence of any mental illness or retardation which would affect his criminal responsibility as a habitual criminal.” There is no indication in the record concerning whether or not that examination was conducted. Some time prior to October 5, 2006, Rice was taken into custody by the Department of Corrections.
On October 25, 2006, Rice filed a motion for final disposition, requesting that the court resolve his case within the next 180 days. Subsequently, on December 1, 2006, Rice submitted to the court a petition to enter a plea of guilty for the charges of flagrant non-support and PFO. On that same date, the court sentenced Rice to serve ten years, probated for three years. During the course of the plea colloquy, the court inquired as to whether Rice suffered from any mental defect and Rice informed the court that he did not, although his trial counsel did interject stating that Rice received mental and physical disability benefits for conditions of which counsel was unaware. The court asked Rice what his mental health diagnosis was and Rice was unable to explain it to the court. The court then asked Rice's counsel whether he had any reservations about Rice's competence, and counsel replied that he did not. During this discussion, Rice stood next to his counsel and did not disagree with counsel's responses. Indeed, he answered affirmatively when asked if he was satisfied with his representation.
Subsequently, on October 29, 2007, an affidavit from Shereka Baskin, a probation officer, was entered into the record in support of placing Rice in in-patient treatment, arresting Rice, and setting a preliminary hearing. Rice was arrested on October 30, 2007, for a possible violation of the terms of his probation, and on November 2, 2007, the court ordered that as a condition of probation, Rice was to re-enter and complete the Hope Recovery Program. Shortly thereafter, on February 22, 2008, the court entered an order setting a probation revocation hearing after learning that Rice had been terminated from the Hope Center Recovery Program for repeatedly cheating on his written assignments. On March 5, 2008, after the revocation hearing, the court determined that Rice should remain in custody at the jail and re-apply for the Hope Recovery Program. However, on June 12, 2008, the coordinator of the Hope program notified the court that Rice had been discharged from the program for a second time and would no longer be allowed to re-apply for admission. A probation revocation hearing was held on August 6, 2008, and on August 7, 2008, a final judgment and sentence of probation revocation was entered, sentencing Rice to the remainder of his ten-year sentence.
Rice then filed two motions for shock probation, one with the assistance of counsel and the other pro se. Rice submitted affidavits in support of those motions to the court for consideration. Each motion was denied. On April 13, 2009, Rice filed a pro se motion to proceed in forma pauperis, a motion to vacate judgment pursuant to RCr 11.42, and a memorandum in support of the RCr 11.42 motion. In those pleadings Rice asserted that he was denied effective assistance of counsel when his counsel failed to investigate his mental health, failed to investigate and discover the presence of a defense, and failed to advise Rice of the law pertaining to his case. Rice was appointed post-conviction counsel.
Rice's appointed counsel requested expert funds to retain a mental health expert to conduct a retrospective competency evaluation asserting it was necessary for the purposes of determining whether he was competent at the time of pleading guilty. Counsel also filed an unverified supplemental brief on Rice's behalf, asserting that Rice's guilty plea was involuntary because he was incompetent and that counsel was ineffective for failing to investigate and present evidence that he did not have the ability to pay child support. The brief asserted that Rice had been diagnosed with bipolar disorder, schizophrenia, and post-traumatic stress disorder, which he has suffered since his service to the Army in Vietnam. Double Counsel also reiterated the failure to investigate the fact that Rice had been incarcerated for part of the period covered by the indictment.
On February 16, 2011, the court entered an order denying Rice's request for expert funds. On February 2, 2012, the court entered an order overruling Rice's RCr 11.42 motion, and stating that there was no evidence of incompetency presented prior to Rice's guilty plea, nor any suspicion that he was able to consult with or assist his counsel. The order further concluded that there was no evidence presented by Rice to the effect that he informed his counsel of a defense, or that his counsel failed to investigate a specific defense. It is from that order that Rice now appeals to this Court.
Prior to reviewing the arguments of the parties, we note first that we review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As established in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky.2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.
Bowling at 411–412.
Additionally, we note that the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances, counsel's action “might have been considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
On the issue of whether an evidentiary hearing is necessary, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky.2001), is controlling in this matter. Under Fraser, Rice is only entitled to an evidentiary hearing if there are allegations that cannot be conclusively resolved upon the face of the record. Further, we note that in determining whether the allegations in a post-trial motion to vacate, set aside or correct sentence can be resolved on the face of the record, the trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Id. at 452–53. We review the arguments of the parties with these standards in mind.
As his first basis for appeal, Rice argues that the trial court erred in finding that Rice had failed to present evidence that he was incompetent at the time that he pled guilty. Rice asserts that upon learning that he had received mental disability benefits, the court below should have had Rice evaluated by an appropriate mental health professional, and should have held a hearing pursuant to Kentucky Revised Statutes (KRS) 504.100 to determine whether or not that disability rendered him incompetent to plead guilty.
In response, the Commonwealth argues that the circuit court did not err in denying Rice's RCr 11.42 motion without a hearing. In support of that argument, the Commonwealth asserts that Rice's claims concerning the voluntariness of his plea are not appropriately the subject of an RCr 11.42 pleading, and should instead have been raised on direct appeal. Alternatively, it asserts that the court correctly denied Rice's motion, noting that there was no evidence to contradict the finding made during the plea colloquy that the plea was knowing and voluntary. The Commonwealth argues that the mere fact that Rice receives disability benefits does not render him incompetent, nor does the fact that he may have been hospitalized on prior occasions. Moreover, the Commonwealth asserts that the supplemental brief filed by Rice that details many of his alleged psychological diagnoses is unverified and should not be considered by this Court.
In addressing this issue, we turn first to the Commonwealth's claim that Rice's supplemental brief, detailing many of his alleged disabilities, should not be considered by this Court because it is unverified. Rice does not dispute that his supplemental brief was unverified, but asserts that the lower court made no reference to the lack of verification in its order denying Rice's motion. Rice also asserts that because the Commonwealth never objected to the brief being unverified below, it cannot now raise this claim for the first time on appeal. With this latter contention, we agree.
Certainly, the Commonwealth was correct in its assertion that failure to comply with the verification requirement may warrant a summary dismissal of the motion. Fraser v. Commonwealth, 59 S.W.3d at 452. However, Rice's original motion was properly verified, and under the circumstances, we cannot find that the deficiencies in the supplemental pleadings deprived the trial court of jurisdiction to consider the motions. Moreover, the Commonwealth failed to advise the trial court of the deficient pleadings. Because the Commonwealth failed to raise this issue before the trial court, it is not preserved for review.
Nevertheless, we are in agreement with the Commonwealth that the issue of whether the court below should have ordered a competency hearing is one that should have been raised on direct appeal, and is not an issue properly raised in an RCr 11.42 proceeding. Proceedings pursuant to RCr 11.42 cannot be used to relitigate issues decided on direct appeal, or to raise issues that could have been presented on direct appeal. See Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky.2009). Issues which could have been raised on direct appeal are not appropriate for RCr 11.42, Hoskins v. Commonwealth, 420 S.W.2d 560 (Ky.1967); Thacker v. Commonwealth, 476 S.W.2d 838 (Ky.1972). The issue of whether or not the court should have ordered a competency hearing was one with respect to which Rice had all of the necessary facts, and could have raised on direct appeal. He cannot belatedly do so now pursuant to RCr 11.42. Accordingly, we affirm.
Having so found, we now turn to Rice's second argument on appeal: namely, that the trial court erred in finding that Rice had failed to establish ineffective assistance of counsel. In support of this argument, Rice argues that counsel failed to adequately investigate his mental health, history of incarceration, and financial ability to pay child support. Rice asserts that if counsel had undertaken a reasonable investigation, he would have discovered that Rice suffered from severe mental illness which made him unable to maintain employment. Further, Rice asserts that counsel would have discovered that the mental illness, coupled with Rice's drug dependency, resulted in his incarceration for nearly half of the days that he was indicted for not paying child support. Moreover, he argues that his counsel erred in failing to investigate his mental health and seek a competency evaluation. Rice asserts that his counsel below should have had a good faith doubt as to Rice's competency because of his history of substance abuse, continuous incarceration, and knowledge that Rice received mental and physical disability benefits.
In response to Rice's second argument, the Commonwealth argues that the court appropriately denied Rice's claims without an evidentiary hearing. As noted, Rice alleged that counsel was ineffective for failing to seek a competency hearing, and for failing to investigate Rice's mental health, history of incarceration, and financial ability to pay child support. Concerning the latter assertion, the Commonwealth argues that incarceration is not a defense applicable to failure to pay child support. Concerning Rice's claims that he could not pay child support because of mental and physical disabilities, the Commonwealth argues that this argument was not presented to the circuit court, and thus should not now be considered on appeal. Concerning Rice's claim that counsel was ineffective for failing to request a competency hearing, the Commonwealth again argues that counsel would have had no reason to do so, as Rice exhibited no symptoms of incompetency during the course of the proceedings below.
In addressing this issue, we are in agreement with the Commonwealth that incarceration is not a defense applicable to failure to pay child support. See Commonwealth ex rel Marshall v. Marshall, 15 S.W.3d 396 (Ky.App.2000). Double Accordingly, counsel was not ineffective for failing to investigate that issue. Concerning Rice's claim that counsel was ineffective for failing to further investigate Rice's mental health and seek a competency hearing, again, we disagree. Even assuming that all of the statements in Rice's supplemental brief are true – namely that he was diagnosed with bi-polar disorder, schizophrenia, and post-traumatic stress disorder for which he was hospitalized on a prior occasion, these facts do not speak to the issue before our court, which is the competency exhibited by Rice at the time that he appeared before the court, engaged in a lengthy plea colloquy, and made a decision to knowingly and voluntarily plead guilty.
Ultimately, the right to a competency hearing attaches only if there is substantial evidence that a defendant is incompetent. Padgett v. Commonwealth, 312 S.W.3d 336, 347 (Ky.2010). When evaluating whether or not there is substantial evidence of incompetence in order to implicate a defendant's constitutional right, a trial court may consider a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence. Id. at 347, quoting Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Further, our Kentucky Supreme Court has recently held that a defendant is competent if he can consult with his lawyer with a reasonable degree of rational understanding, and if he has a rational as well as factual understanding of the proceedings against him. Woolfolk v. Commonwealth, 339 S.W.3d 411, 422 (Ky.2011), quoting Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Even assuming that all of the allegations contained in Rice's supplemental brief are true, this court finds no substantial evidence in the record, as defined by the precedent set forth herein, to support his argument that he was incompetent at the time that he decided to enter his plea, nor at any time during the course of his lengthy plea colloquy with the court concerning same. Accordingly, we believe that the court below correctly held that Rice failed to establish ineffective assistance of counsel, and we affirm.
As his third basis for appeal, Rice argues that the trial court erred in denying his motion for an evidentiary hearing. In support of this argument, Rice asserts that the record does not adequately reflect what facts trial counsel investigated or was aware of at the time of the guilty plea, what advice counsel gave Rice concerning the law and facts of his case, nor the reasons why counsel did not seek to have a competency evaluation conducted before permitting Rice to plead guilty. Further, Rice asserts that while the record suggested that he had a mental disability, it did not indicate what those conditions were, and what impact these might have had on his ability to pay the child support. Accordingly, Rice asserts that the record does not adequately refute his claims, and that an evidentiary hearing was warranted. Rice also argues that because he was entitled to an evidentiary hearing, he was also entitled to an award of funds for the purpose of obtaining the opinion of a mental health expert, and that the court erred in denying his request for same.
In response to Rice's final arguments, the Commonwealth argues that it was not error to deny a hearing in this case because the assertions upon which Rice relied in arguing that a hearing was necessary Double were contained in an unverified supplemental brief. Moreover, the Commonwealth asserts that even if this Court were to accept Rice's allegations as true, they do not change the fact that the court engaged in a lengthy plea colloquy with Rice, who was found to be competent, and to have made the plea knowingly and voluntarily. The Commonwealth again asserts that past hospitalizations, mental disabilities, or illnesses do not necessarily equate to incompetency.
For the reasons previously mentioned herein concerning Rice's competency on the day of the hearing, the evidence of record, and in light of our finding that counsel did not render ineffective assistance, we believe the court below appropriately denied Rice's request for an evidentiary hearing. As previously noted herein, Rice is only entitled to an evidentiary hearing if there are allegations that cannot be conclusively resolved upon the face of the record. Fraser v. Commonwealth, 59 S.W.3d 448 at 452–53. Such was not the case sub judice and, accordingly, we affirm. In affirming the court's denial of an evidentiary hearing, we also affirm the court's denial of Rice's motion for funds for an expert witness, as it is only necessary to allow such funds if there is a hearing. See Mills v. Messer, 268 S.W.3d 366 (Ky.2008).
Wherefore, for the foregoing reasons, we hereby affirm the February 2, 2012, order of the Fayette Circuit Court overruling Rice's motion pursuant to RCr 11.42 without an evidentiary hearing, and denying his request for funds, the Honorable Ernesto M. Scorsone, presiding.
NICKELL, JUDGE, CONCURS.
ACREE, CHIEF JUDGE, CONCURS IN RESULT ONLY.