Opinion
NO. 2011-CA-002050-MR
05-03-2013
JAMES GREGORY TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Margaret Ivie Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 05-CR-00986
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON AND STUMBO, JUDGES. STUMBO, JUDGE: The appellant, James Taylor, appeals a decision of the Fayette Circuit Court denying his motion for post conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and declining to hold an evidentiary hearing. We believe the issues raised by Taylor could be determined from the face of the record, and a hearing was properly denied. Taylor also failed to establish that, but for the ineffectiveness of his counsel, he would not have accepted the plea; therefore, we affirm.
Background
Taylor was indicted on August 9, 2005, for Murder, Robbery in the First Degree, and Tampering with Physical Evidence. His wife, Cheryl Taylor, was also indicted on the same charges. On November 29, 2006, Taylor entered into a plea agreement with the Commonwealth. Pursuant to the agreement, the Commonwealth recommended a sentence of life imprisonment without parole for twenty-five years (LWOP25). During the plea colloquy, Taylor indicated that he went to buy cocaine from the victim and during the transaction they had a dispute over previous sales. Taylor alleges that during the dispute, the victim stuck his hand in his pocket and said he was going to kill the appellant, however, Taylor never saw a gun in his possession. Taylor proceeded to shoot the victim and took his cell phone and drugs. Taylor and his wife then disposed of the murder weapon. The police investigation revealed that Taylor had been angry with the victim for a period of time, believed he had been cheated by him, and planned to seek payback. On December 8, 2006, the conviction was entered and Taylor received the agreed upon sentence.
On September 5, 2008, almost two years later, Taylor moved to withdraw his guilty plea, in part due to alleged ineffective assistance of counsel. The Fayette Circuit Court denied his motion concluding they lacked jurisdiction or, in the alternative, that Taylor's claims failed to amount to ineffective assistance of counsel. On June 29, 2009, Taylor filed a pro se RCr 11.42 motion that was supplemented by appointed counsel on September 10, 2010. The Fayette Circuit Court denied the motion on October 17, 2011, without an evidentiary hearing. This appeal followed.
Standard of Review
When the circuit court denies a request for a hearing made under RCr 11.42, "our 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.'" Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. 1986) (quoting Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)). In order to determine if the conviction is valid, we must determine if the plea represents a voluntary and intelligent choice among the available alternatives. Sparks at 727.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.Id. at 727-28(citations omitted).
Analysis
First, we point out that the supplemental motion was filed outside the three-year statutory period set forth in RCr 11.42. However, the Commonwealth did not raise the issue of timeliness and it is immaterial because, as discussed in further detail below, his counsel was not ineffective.
On appeal, Taylor asserts that the ineffectiveness of his trial counsel resulted in his failure to enter into a knowing and voluntary plea. To this end, Taylor contends that that his counsel: 1) failed to investigate and properly advise on the issue of self-defense; 2) failed to investigate and advise on the evidence supporting the robbery charge; and 3) failed to conduct an adequate mitigation investigation and advise him of the consequences. Taylor contends that, but for these shortfalls, he would not have accepted the plea and would have proceeded to trial. Taylor also asserts that a hearing was necessary to determine the validity of his claims.
The circuit court judge engaged in a lengthy colloquy regarding the plea. Taylor answered in the affirmative when asked if he discussed the nature of the charges with his attorney, as well as any possible defenses. The court specifically asked Taylor if his attorney discussed the possibility of asserting self-defense and he answered yes. The court also explained each of the charges brought against him and all of the Constitutional rights available to him. Taylor also indicated that his attorney had fully discussed the matter with him and he was satisfied with the representation he received. In addition to addressing these questions before the court, Taylor acknowledged them in writing. The record is also clear that Taylor acknowledged, as indicated by his statements to the circuit court judge during entry of the plea, that he shot Damien, took drugs, money, and a cell phone from his person, and thereafter disposed of the murder weapon. Despite Taylor's indication that he understood the charges and available defenses, Taylor now claims his plea was involuntary as a result of inadequate advice from his attorney. We disagree because the plea colloquy in this case was very thorough and enabled the court to determine from the record that the plea was voluntary and intelligently made. See e.g. Ford v. Commonwealth, 453 S.W.2d 551, 552 (Ky. 1970) (finding that a thorough plea colloquy can refute, based on the record alone, claims that a plea was not knowingly and voluntarily made).
The circuit court was satisfied, based on the affirmative statement by Taylor, that he was properly advised regarding the claim of self-defense. Taylor maintains that, not only was he entitled to assert self defense, his self-defense argument would render the jury unable to convict him for robbery in the first degree; however, the circuit court noted that the only evidence capable of disproving the Commonwealth's allegations were Taylor's own self-exculpatory statements. Based on this fact and in light of the existence of evidence to the contrary, it was entirely reasonable for Taylor's attorney to advise him that a claim of self-defense would likely be ineffective and Taylor's attorney properly advised him to accept the lowest possible sentence available for aggravated murder.
Finally, the circuit court determined that Taylor's attorney did in fact conduct an adequate mitigation investigation. The record indicates that the trial court ordered payment to Taylor's mitigation expert in the sum of $8850.00 for 128 hours of work and Taylor acknowledged that the expert met with his parents, one of his brothers, and his aunt. The actions of Taylor's attorney are entitled to a strong presumption that his conduct fell within the wide range of reasonably competent assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984). Taylor's blanket assertion that the mitigation expert did not do enough is insufficient to overcome the presumption that his actions were reasonable and the record clearly refutes his claim.
Given the strong evidence against Taylor, including his own confession, the record indicates that his attorney's advice to accept the offer of LWOP25 did not amount to ineffective assistance of counsel. Had Taylor rejected the plea and gone to trial, he would likely have faced a sentence of life without parole or even death.
For the reasons set forth above, the Fayette Circuit Court did not err by declining to hold an evidentiary hearing or by concluding that the Taylor's counsel was effective; therefore, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Margaret Ivie
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd Ferguson
Assistant Attorney General
Frankfort, Kentucky