Opinion
NO. 2016-CA-001584-MR
06-22-2018
THOMAS MERCURIO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Thomas Mercurio, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 08-CR-003810 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND THOMPSON, JUDGES. THOMPSON, JUDGE: Thomas Mercurio appeals the Jefferson Circuit Court's order denying his motion to withdraw his guilty plea. After careful review, we affirm.
A Jefferson County grand jury indicted Mercurio for murder, first-degree arson, first-degree robbery, tampering with physical evidence, and receiving stolen property over $300. In October 2010, he accepted the Commonwealth's offer to plead guilty but mentally ill to these charges in exchange for a recommended sentence of life imprisonment. The trial court accepted Mercurio's guilty plea and sentenced him consistent with the Commonwealth's recommendation. However, the trial court's judgment of conviction and sentence did not explicitly state Mercurio pled guilty but mentally ill.
Mercurio did not receive the mental health treatment he was expecting in prison and believed it was due to the trial court's failure to state explicitly that his guilty plea was based on him being mentally ill. In April 2016, he filed a "motion to withdraw plea and/or correct sentence." The trial court denied Mercurio's motion to withdraw his plea but granted his motion to amend the judgment of conviction and sentence to specifically reflect that his plea was entered as guilty but mentally ill. Four months later, Mercurio moved, pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 and Kentucky Rules Criminal Procedure (RCr) 11.42, to withdraw his guilty plea. As grounds for the motion, Mercurio argued his trial counsel provided ineffective assistance. The trial court summarily denied the motion. This appeal follows.
On appeal, Mercurio abandons his argument that trial counsel was ineffective. Instead, Mercurio argues the trial court deviated from the terms of his plea agreement by failing to specify in its original judgment that his guilty plea was based on him being mentally ill; therefore, RCr 8.10 requires he be permitted to withdraw his guilty plea. We hold Mercurio is not entitled to relief under any of the rules he cited before this Court or the trial court.
Under RCr 8.10, a defendant may move to withdraw a plea of guilty but mentally ill "[a]t any time before judgment[.]" Because Mercurio moved to withdraw his guilty plea five years after the trial court entered a judgment of conviction, he was not entitled to relief under this rule.
At the trial court level, Mercurio moved to set aside his plea under RCr 11.42 and CR 60.02. RCr 11.42 does permit a defendant to obtain post-conviction relief from a guilty plea when he alleges "with particularity specific facts which, if true, would render the plea involuntary under the Fourteenth Amendment's Due Process Clause, would render the plea so tainted by counsel's ineffective assistance as to violate the Sixth Amendment, or would otherwise clearly render the plea invalid." Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012). However, Mercurio previously filed an RCr 11.42 motion to set aside his judgment of conviction, which the trial court denied in April 2013. Final disposition of an RCr 11.42 motion "shall conclude all issues that reasonably could have been presented in that proceeding." Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). To the extent Mercurio sought relief under RCr 11.42, his latest motion is an attempt to revisit issues that could have been raised in a prior RCr 11.42 proceeding and is procedurally barred. Moreover, he did not allege with particularity specific facts showing his trial counsel's performance was deficient and he would have insisted on going to trial but for counsel's errors. In Commonwealth v. Carneal, 274 S.W.3d 420, 431 (Ky. 2008), the Kentucky Supreme Court rejected the defendant's argument "that counsel was ineffective for not explaining that a 'guilty but mentally ill' label is meaningless and had no bearing on the type of medical treatment he would receive in adult corrections" where the record refuted the defendant but for counsel's errors would have insisted on going to trial.
Finally, we hold the trial court did not err by denying Mercurio relief under CR 60.02. CR 60.02(a)-(e) lists the specific grounds upon which a court may relieve a party from its final judgment, none of which have been alleged in this case. CR 60.02's residual clause, subsection (f), permits a court to relieve a party from its final judgment for "any other reason of an extraordinary nature justifying relief." The movant must make a "clear showing of extraordinary and compelling equities" to be entitled to relief. Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). A denial of a CR 60.02 motion is reviewed for an abuse of discretion. Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky. 2008). The trial court already granted Mercurio's motion to amend his judgment of conviction to show that his guilty plea was entered as guilty but mentally ill. Mercurio alleged no other errors in his conviction. Thus, the trial court did not abuse its discretion by finding he was not entitled to set aside his guilty plea under CR 60.02.
Based on the foregoing, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas Mercurio, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky