Opinion
NO. 2015-CA-001134-MR
05-27-2016
TERRY D. MILLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Terry D. Mills, Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 02-CR-00037 OPINION
AFFIRMING
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BEFORE: MAZE, TAYLOR, AND VANMETER, JUDGES. VANMETER, JUDGE: Terry D. Mills appeals pro se from the McCracken Circuit Court's denial of his successive motion for post-conviction relief pursuant to RCr 11.42.
Kentucky Rules of Criminal Procedure.
The history of Mills' direct and collateral attacks on his conviction is chronicled in an unpublished opinion rendered by this Court in Mills v. Commonwealth, 2011-CA-002223, 2013 WL 3105508 (June 21, 2013):
In 2002, Mills entered a guilty plea to the following charges: (1) manufacturing in methamphetamine, with firearm enhancement; (2) possession of drug paraphernalia, with firearm enhancement; (3) first-degree possession of a controlled substance, methamphetamine; with firearm enhancement; (4) possession of a handgun by a convicted felon; (5) theft by unlawful taking under $300.00; (6) possession of marijuana, with firearm enhancement; and (7) first-degree persistent felony offender (PFO-1st). Mills was sentenced to serve a total of twenty years of imprisonment, and his sentence was ordered to run consecutively with the sentences he received in other cases.
Mills filed his first CR 60.02 motion in 2003, and it was denied. He appealed, and this Court affirmed the denial of that motion. See Mills v. Commonwealth, Nos. 2003-CA-000790-MR and 2003-CA-001025-MR, 2004 WL 68543, *1 (Ky. App. Jan. 16, 2004) (unpublished). Two months after the circuit court denied his first CR 60.02 motion, Mills filed his second CR 60.02 motion, which the circuit court denied. Mills appealed, and this Court dismissed the appeal because Mills failed to timely file an appellate brief. See Mills v. Commonwealth, No. 2004-CA-002418-MR (Ky. App. May 2, 2008) (order dismissing appeal). His third CR 60.02 motion was filed in 2004, and it was also denied. He appealed, and this court affirmed the denial of Mills's third CR 60.02 motion. See Mills v. Commonwealth, No. 2004-CA-001842, 2005 WL 2467772, *1 (Ky. App. Oct. 7, 2005) (unpublished).
In 2004, Mills filed a motion to vacate pursuant to RCr 11.42. In his RCr 11.42 motion, Mills alleged, inter alia, that he received the ineffective assistance of counsel because his guilty plea was not entered intelligently
and/or knowingly. His motion was denied by the circuit court.
In October 2009, Mills sent a letter to the circuit court, in which he requested a "more specifically worded judgment that would reflect [that] the offense of Manufacturing Methamphetamine, first offense, is a Class B felony." He contended in the letter that the Department of Corrections had notified him in June 2009 that due to his firearm enhancement, his conviction for manufacturing methamphetamine, first offense, was a Class A felony subject to the violent offender statute, which meant he had to serve eighty-five percent of his sentence before becoming eligible for parole. Mills stated that when he entered his guilty plea, he understood the offense was a Class B felony and the enhancement applied only to the penalty range and not to the classification of the offense.
The circuit court entered an order in November 2009 stating it had reviewed Mills' letter to the court, and it "considered [the letter] as a petition for [RCr] 11.42 relief or other relief under the Rules." The court then denied the "motion."
In 2010, Mills filed his fourth CR 60.02 motion. In that motion, he made no argument concerning his recent notification from the Department of Corrections that his offense qualified as a violent offense and, as such, he would have to serve eighty-five percent of his sentence before becoming eligible for parole. The circuit court denied the motion. Mills appealed, and this Court affirmed the circuit court's decision. See Mills v. Commonwealth, No. 2010-CA-000424-MR, 2011 WL 2119359, *1 (Ky. App. May 27, 2011) (unpublished).
In July 2011, Mills filed his fifth CR 60.02 motion, which is the subject of this appeal. In that motion, Mills alleged his judgment should be vacated because he had been told by the court during his plea hearing that he would only have to serve fifty percent, rather than eighty-five percent, of his sentence before becoming eligible for parole. The Department of Corrections had informed
him in 2009 that he would have to serve eighty-five percent of his sentence. The circuit court denied Mills motion, finding that it "fail[ed] to meet the burdens of [CR] 60.02...additionally finding that movant's motion was not made within a reasonable time."
We affirmed the trial court in the above referenced appeal. In an opinion rendered June 21, 2013, we found that Mills' claim was barred because it could have been brought in his fourth CR 60.02 motion. We further found that the motion was not brought within a reasonable time because Mills waited approximately two years from the time the Department of Corrections informed him of the eighty-five percent parole eligibility requirement before he filed the motion.
In between filing his numerous post-conviction motions, Mills, in 2010, filed suit against the Department of Corrections. In that suit, Mills contested his classification as a "violent offender" under KRS 439.3401 resulting from the firearm enhancement under KRS 218A.992. Mills argued that he was actually convicted of a Class B felony because KRS 281A.992 only enhances the sentence and not the conviction. The Kentucky Supreme Court, in an opinion rendered on August 21, 2014, held that KRS 218A.992 operates to enhance a conviction and not simply to enhance the sentence; accordingly, the Court determined that because Mills was convicted of a Class A felony, he qualified as a violent offender under KRS 439.3401. Mills v. Dep't of Corr. Offender Info. Serv., 438 S.W.3d 328 (Ky. 2014).
Kentucky Revised Statutes.
KRS 439.3401 provides, in part, that a person convicted of a Class A felony shall be considered a "violent offender" and subject to eighty-five percent parole eligibility.
KRS 218A.992 provides, in part, that persons convicted of certain drug offenses while in possession of a firearm in furtherance of the offense shall be penalized one class more severely than provided in the penalty provision pertaining to that offense. --------
On May 28, 2015, Mills, pro se, filed the RCr 11.42 that is the subject of this appeal. In his motion, Mills alleged that his counsel rendered ineffective assistance by advising him that his plea agreement would result in parole eligibility after ten years as opposed to eligibility after serving eighty-five percent of his sentence under KRS 439.3401. Mills admits that his motion is untimely under RCr 11.42(10), however, he contends that his arguments are properly before the trial court pursuant to RCr 11.42(10)(a). RCr 11.42(10)(a) allows for the filing of an RCr 11.42 motion outside the three year time limit provided the movant claims and proves "that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence." Mills claims that the facts upon which his claim is predicated could not have been discovered prior to the Kentucky Supreme Court's opinion in Mills v. Dep't of Corr. Offender Info. Serv., supra, rendered in August of 2014, because he could not have known that his underlying conviction was enhanced. In summarily denying the motion, the trial court found that Mills' RCr 11.42 motion was successive and untimely.
On appeal, Mills raises the same argument and further argues that he should have been afforded an evidentiary hearing. We disagree. At a minimum, Mills was aware that he received inadequate advice after receiving the letter from the Department of Corrections, more than two years prior to the filing of the RCr 11.42 motion before this court.
When, as here, an RCr 11.42 hearing is denied, appellate review is limited 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." Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).
Despite Mills' assertion that prior to the resolution of his lawsuit against the Department of Corrections he did not know that he was convicted of a Class A felony, the record indicates that Mills never believed, nor was he ever informed, that he was pleading guilty to a Class B felony. In fact, all indications from the record show that Mills knew that he was pleading to a Class A felony. The indictment indicated that Mills had been charged with a Class A felony; the prosecutor noted on the record that Mills was pleading guilty to a Class A felony; and, during the plea colloquy, the judge advised Mills that he was not eligible for probation due to his conviction for a Class A felony. The Supreme Court of Kentucky even observed in its opinion in Mills v. Dep't of Corr. Offender Info. Serv. that Mills was made aware that he was pleading to a Class A felony. 438 S.W.3d at 329 n. 1 and 5.
Class A felonies are clearly listed in the criteria for violent offender classification. Therefore, the fact on which this appeal is predicated was easily ascertainable during the three years following final judgment. The present RCr 11.42 motion is Mills' eighth motion for post-conviction relief, filed thirteen years after his judgment was final. Accordingly, the circuit court correctly found that the motion was successive and untimely.
Moreover, even if we assume that Mills could not have known that he was subject to the violent offender statute in the three years after his judgment was final, he definitely knew when he received the letter from the Department of Corrections indicating as much. As noted above, Mills knew he pleaded guilty to a Class A felony. Thus, when he received the letter from the Department of Corrections, he had all the information necessary to recognize if he had been erroneously advised regarding his parole eligibility for the class of crime to which he plead guilty. Nonetheless, Mills waited approximately six years from the time the Department of Corrections informed him of his eighty-five percent parole eligibility to file his present RCr 11.42 motion. The rule is clear. The circuit court did not need an evidentiary hearing to determine that the present RCr 11.42 motion was not brought within the three year period required by RCr 11.42(10).
Additionally, even if Mills' RCr 11.42 motion had been timely filed, it would fail because Mills cannot show that he was prejudiced by his trial counsel's erroneous advice. To be entitled to relief from a guilty plea on a claim of ineffective assistance of counsel, one must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In the guilty plea context, prejudice is established if a challenger can "demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (internal quotations omitted).
In Commonwealth v. Pridham, 394 S.W.3d 867, 881-85 (Ky. 2012), our Supreme Court held that when a defendant alleges that counsel offered inaccurate advice regarding the effects of the violent offender statute on parole eligibility, he has stated Sixth Amendment claim of ineffective assistance and is entitled to an evidentiary hearing on the merits of the claim. However, a hearing is not required if the defendant cannot show that absent counsel's inaccurate advice it would have been rational under the circumstances to reject the plea bargain and proceed to trial. Stiger, 381 S.W.3d at 237. For example, the defendant might show that he had a valid defense, a pending suppression motion that could undermine the prosecution's case, or that he had a realistic possibility for a lower sentence. Id.
Here, the alleged misadvice Mills received is sufficient to satisfy Strickland's deficiency prong; however, any decision by Mills to reject the plea bargain and go to trial would have been irrational. The evidence against Mills was substantial. Upon stopping Mills, police recovered from his vehicle a 9mm pistol and items used to manufacture methamphetamine. In a roadside interview, Mills admitted that he had methamphetamine on his person, that he had been cooking methamphetamine for two years, and that he had nine prior felony convictions. Mills has not proffered a valid defense, nor does he maintain that there is a question about the admissibility of his confession or the items recovered from his vehicle.
Had Mills went to trial, based on his charge for the Class A felony, he would have been subject to a minimum of twenty years' imprisonment and a maximum of life imprisonment. He further would have been subject to the violent offender statute's eighty-five percent parole eligibility requirement. Under the plea deal, Mills received the minimum sentence. Acquittal was the only way Mills could have improved his circumstances by going to trial. However, we are convinced that, based on the evidence and his confession, Mills had virtually no chance of acquittal. On the contrary, based on the same evidence and the number of charges, a substantial likelihood exists that Mills would have received a much longer sentence had he chosen to go to trial. Under these circumstances, it would have been clearly irrational to reject the Commonwealth's plea offer.
For the foregoing reasons, the order of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Terry D. Mills, Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky