Opinion
NO. 2011-CA-001233-MR
02-22-2013
DORIAN RUDOLPH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Dorian Rudolph, Pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR, JUDGE
ACTION NO. 07-CR-003852
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Dorian Rudolph appeals the Jefferson Circuit Court's June 13, 2011 order denying his motion for relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. Without conducting an evidentiary hearing, the circuit court determined Rudolph had not received ineffective assistance of counsel in entering his guilty plea. We affirm.
I. Background
On October 5, 2007, four men approached James Terrell Foster near his apartment, assaulted him, and instructed him to lead them to the apartment then occupied by Foster's girlfriend, whom they intended to rob. The group possessed at least one firearm. Foster led his assailants to the correct apartment complex, but intentionally misdirected them away from his girlfriend's apartment, and to the unit occupied by Phillip Cole II and his sister.
Hearing movement at the front door, and believing his sister was attempting to enter, Cole opened it. He tried to quickly shut it before the assailants could enter, but they rushed the door and entered the apartment. One of the assailants struck Cole in the head with a golf club. Cole fell to the floor and remained there for the duration of the attack.
The men began searching Cole's home for drugs, but soon realized they were in the wrong place. They began to exit. Just before leaving for good, one of the assailants turned and shot Cole once in the back. His spinal cord was damaged, and he was left paralyzed below the waist.
Of Foster's four assailants, authorities were able to apprehend only Rudolph and Wilbur Mucker. Foster was indicted on a charge of wanton endangerment for leading the assailants to Cole's apartment. Rudolph and Mucker were indicted on charges related to the burglary, robbery, and assault of Cole.
Rudolph's two codefendants entered guilty pleas before Rudolph entered one of his own. He pleaded guilty to the following charges: (1) first-degree robbery; (2) first-degree burglary; (3) first-degree assault; and (4) second-degree assault. Before accepting his plea, the circuit judge conducted an extensive colloquy, explaining in detail the constitutional rights waived by the plea deal and the consequences in proceeding. Rudolph expressed his understanding, stated he was experiencing no mental or physical ailments which would impede his decision making, and expressed his desire to plead guilty. Satisfied that Rudolph offered his plea knowingly and voluntarily, the circuit court entered it and sentenced Rudolph to a total of twenty years' imprisonment.
About a year later, Rudolph filed an RCr 11.42 motion alleging ineffective assistance of counsel. More specifically, he claimed his trial attorney's performance was deficient because she: failed to secure dismissal of some of the charges which were barred by the prohibition against double jeopardy; failed to have his indictment thrown out on the basis of false testimony; and failed to represent him in a way which permitted him to "cross examine" Foster. He also claimed he had been incompetent to enter the guilty plea, and he requested an evidentiary hearing and appointment of counsel.
The circuit court denied the motion in its entirety, and this appeal followed.
II. Standards of review
To succeed on a claim of ineffective assistance of counsel following a guilty plea, the movant must show that his trial counsel's performance was deficient and "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). Unless an RCr 11.42 motion raises a material issue of fact which cannot be resolved by review of the record, no evidentiary hearing is required, and counsel need not be appointed to represent the movant. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001) (citations omitted).
III. Discussion
a. Evidentiary hearing and appointment of counsel
The circuit court correctly determined that any questions raised in Rudolph's motion could be conclusively resolved by the record. It was therefore not erroneous to decline to conduct an evidentiary hearing or to appoint Rudolph counsel.
b. Double jeopardy
Rudolph contends his trial attorney's performance was deficient because she advised him to plead guilty to charges which were prohibited by the Fifth Amendment to the United States Constitution: "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. Rudolph claims he could not be convicted of both robbery and burglary or of both first-degree assault and second-degree assault.
Kentucky's Constitution contains a similar provision: "No person shall, for the same offense, be twice put in jeopardy of his life or limb[.]" Ky. Const. §13.
The General Assembly has codified the double jeopardy test articulated in Blockburger v. United States in KRS 505.020. Beatty v. Commonwealth, 125 S.W.3d 196, 210 (Ky. 2003). The statute reads, in pertinent part, as follows:
Blockburger v. United States, 284 U.S. 299, 301, 52 S. Ct. 180, 181, 76 L. Ed. 306 (1932).
When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:KRS 505.020(1).
(a) One offense is included in the other ...; or
(b) Inconsistent findings of fact are required to establish the commission of the offenses; or
(c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
As the Commonwealth notes, Rudolph did not argue in his RCr 11.42 motion that his convictions of both burglary and robbery were so barred. He raised that argument for the first time in his appellant's brief. Our review of this matter is therefore governed by RCr 10.26; we may reverse the circuit court's order only if it was the product of substantial error.
We find no such error here. Burglary and robbery are distinct offenses, the first being an offense against property and the second being an offense against persons. Jordan v. Commonwealth, 703 S.W.2d 870, 873 (Ky. 1985). Prosecution and conviction on both offenses in a single indictment, albeit premised on the same incident, constitutes "merely a single prosecution for separate statutory crimes[,]" and does not violate the prohibition against double jeopardy. Id.
Distinct acts of violence can likewise give rise to multiple assault convictions. Welborn v. Commonwealth, 157 S.W.3d 608 (Ky. 2005). In Welborn, a defendant who shot his victim three times was properly convicted for three counts of first-degree assault where "[e]ach shot was preceded by a sufficient period of time in which [the defendant] could reflect on his conduct and formulate intent to commit another act." Id, at 612. "The assault statute[s prohibit] individual acts and not a course of conduct[,]" so a defendant may be convicted of several distinct acts of assault arising from the same incident without running afoul of KRS 505.020(1)(c).
The assault statutes are KRS 508.010 and KRS 508.020.
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In this case, the two acts of assault perpetrated against Cole were sufficiently distinct to merit Rudolph's conviction on both first-degree and second-degree assault. As in Welborn, sufficient time elapsed between the strike to Cole's head with the golf club and the gunshot to his back for Rudolph to formulate the requisite intent. Furthermore, the two assaults were committed with two different weapons, a golf club and a gun. They clearly constituted two separate criminal acts, and Rudolph's convictions do not run afoul of statutory or constitutional protections against double jeopardy.
c. Grand jury testimony
Rudolph next argues his indictment was improper because the Commonwealth's witness, a police detective, lied to the grand jury in his testimony. This argument is too vague for us to consider. Lukjan v. Commonwealth, 358 S.W.3d 33, 45 (Ky. App. 2012). Although Rudolph alleges generally that the detective lied, he does not identify in his appellant's brief which portion of the testimony was allegedly untrue. Consequently, we are unable to assess whether the purported lie had any effect on Rudolph's indictment. "Dismissal of an indictment has been described as "the most severe sanction possible[.]" Commonwealth v. Baker, 11 S.W.3d 585, 590 (Ky. App. 2000). We cannot conclude Rudolph's trial attorney performed deficiently by failing to secure such a harsh remedy where Rudolph has not identified any abuse of the grand jury proceedings.
d. Competency
The next basis of Rudolph's RCr 11.42 motion is that he was not competent to enter a guilty plea due to a psychotic disorder.
Before accepting a plea of guilty, the trial judge must ascertain that the defendant is entering it knowingly and voluntarily. RCr 8.08.
In a very thorough plea colloquy, the circuit court ascertained that Rudolph was suffering from no physical or mental ailment which would affect his ability to knowingly and voluntarily enter his plea. Throughout the hearing, Rudolph was engaged and appropriately responsive to all of the circuit court's questions. He swore under oath that he was taking no medications, that he understood the constitutional rights he had waived, and that he was acting of his own free will in entering his guilty plea.
"Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977). Rudolph's own testimony and demeanor during entry of his plea belie his claim of incompetence. Given Rudolph's very clear statements affirming his understanding of the plea and his ability and willingness to do so, we are not inclined to reverse on the basis of incompetence. See Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006).
e. Cross examination of a witness
Finally, Rudolph believes his trial attorney's performance was deficient because she placed him in a situation in which he would not have been able to "cross examine" Foster, whom Rudolph characterizes as both a codefendant and a witness against him. Given the most generous interpretation of this portion of his appellant's brief, Rudolph's argument seems to be that by permitting his case to be consolidated with that of Foster, his trial attorney placed him in a situation in which he would not have been able to examine Foster as a witness due to the constitutional and statutory prohibitions against compelling a defendant to testify in his own defense. U.S. Const. amend. V; KRS 421.225.
This argument is not persuasive. Had Rudolph proceeded to trial, he could have subpoenaed Foster and compelled his testimony because Foster had already entered a guilty plea. U.S. Const. amend. VI; Ky. Const. § 11. They were no longer co-defendants once Foster's plea was entered, so Rudolph's attorney, in fact, did not create a situation in which Rudolph would have been unable to interrogate Foster if the case had gone to trial.
IV. Conclusions
It was apparent from the record that Rudolph's RCr 11.42 motion had no merit. The circuit court properly declined to vacate his conviction, to conduct an evidentiary hearing, and to appoint him counsel.
ALL CONCUR. BRIEFS FOR APPELLANT: Dorian Rudolph, Pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky