Filed: Jan. 10, 2014
Latest Update: Jan. 10, 2014
Summary: NOT TO BE PUBLISHED OPINION THOMPSON, Judge. George E. Phillips brings this pro se appeal from the Monroe Circuit Court's findings of fact, conclusions of law and order denying his motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. We affirm. Following a jury trial, Phillips was convicted on January 27, 1983, of first-degree rape, sodomy and burglary. He was sentenced to serve ten years on each charge, consecutively. On March 27, 2005,
Summary: NOT TO BE PUBLISHED OPINION THOMPSON, Judge. George E. Phillips brings this pro se appeal from the Monroe Circuit Court's findings of fact, conclusions of law and order denying his motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. We affirm. Following a jury trial, Phillips was convicted on January 27, 1983, of first-degree rape, sodomy and burglary. He was sentenced to serve ten years on each charge, consecutively. On March 27, 2005, P..
More
NOT TO BE PUBLISHED
OPINION
THOMPSON, Judge.
George E. Phillips brings this pro se appeal from the Monroe Circuit Court's findings of fact, conclusions of law and order denying his motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. We affirm.
Following a jury trial, Phillips was convicted on January 27, 1983, of first-degree rape, sodomy and burglary. He was sentenced to serve ten years on each charge, consecutively. On March 27, 2005, Phillips was required to register as a sex offender for his lifetime.
On April 18, 2007, Phillips was indicted in Monroe County on one count of failure to register as a sex offender and later indicted in the same case for being a second-degree persistent felony offender (PFO II). The PFO II indictment did not specify the prior felony offense, alleging only that at the time Phillips committed the offense of failure to register:
[he] stood convicted of a prior felony offense, with the previous conviction being a conviction of a felony in this state or convicted of a crime in any other jurisdiction, and that a sentence to a term of imprisonment of 1 year or more was imposed therefor, and the defendant was over the age of 18 years at the time the offense was committed and the defendant completed the service of the sentence imposed on the previous felony conviction within 5 years prior to the date of the commission of the felony offense of Failure to Comply with Sex Offender Registry, KRS 17.510(11)[.]
Phillips entered a guilty plea to failure to register and being a PFO II. On August 22, 2007, he was sentenced to seven years' imprisonment, probated for a period of five years. His probation was later revoked and he was ordered to serve out the remainder of his seven-year sentence.1
On May 9, 2012, Phillips filed a pro se motion to vacate his sentence pursuant to RCr 11.42, claiming the failure to register as a sex offender is not an offense subject to enhancement under the persistent felony offender statute. The motion quoted extensively from France v. Commonwealth, 320 S.W.3d 60 (Ky. 2012), in which the Kentucky Supreme Court held the underlying offense that caused the defendant to register as a sex offender could not be used to secure a PFO conviction when the defendant was subsequently convicted for failure to register. Phillips argued his counsel was ineffective for failing to advise him regarding the applicable law.
The memorandum of law attached to Phillips's RCr 11.42 did not specify the underlying offense to which he referred. In its response, the Commonwealth assumed Phillips was referring to his 1983 conviction for rape. The Commonwealth agreed that, under France, it was impermissible to use a prior rape conviction both as the offense requiring Phillips to register as a sex offender and as the predicate offense to support a PFO conviction when coupled with a conviction for failure to register. The Commonwealth further explained the rape conviction was not the basis for the PFO charge. The underlying conviction was a February 15, 2007, conviction for receiving stolen property in Barren County.
The trial court agreed with the Commonwealth and denied the RCr 11.42 motion without an evidentiary hearing. It noted the proper time to challenge the indictment would have been at the time of arraignment under RCr 8.18. The court concluded, as a matter of law, the PFO indictment made no mention of Phillips's thirty-year sentence for the offense of rape, sodomy and burglary, and the conviction the Commonwealth was planning to use for the PFO charge was a conviction for the offense of receiving stolen property over $300 in a Barren Circuit Court case. This appeal followed.
As a preliminary matter, we note Phillips filed his post-conviction motion more than three years after the judgment became final. We assume he is proceeding under RCr 11.42(10)(b), which allows motions to be filed after the three-year period if the motion alleges and the movant proves "that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively."
Phillips argues his counsel was ineffective for failing to challenge the sufficiency of the PFO indictment or to seek a bill of particulars because there was no reference in the indictment which prior felony offense the Commonwealth intended to use to secure the PFO II charge. The Commonwealth argues that this specific argument regarding his counsel's failure to move the court to amend the indictment was never raised in his RCr 11.42 motion before the trial court and, therefore, may not be addressed on appeal.
Phillips's motion did allege, in summary fashion, that his counsel either did not know the applicable law or failed to advise him of it. Pro se pleadings are not required to meet the standard of those applied to legal counsel. Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983). In recognition of Phillips's status as a pro se litigant, we will review his claims under the palpable error standard. RCr 10.26.
In order to show ineffective assistance of counsel on a guilty plea, a defendant must demonstrate the following:
(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.
Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004) (internal citations omitted).
We have reviewed the arraignment and guilty plea proceedings and find no specific identification of the underlying felony referenced in the PFO II indictment. The France opinion became final in 2012, approximately five years after the entry of Phillips's guilty plea. Even if the PFO II indictment intended to reference the rape conviction as the underlying offense, Phillips's counsel could not have been expected to foresee the future state of the law. Thus, Phillips cannot meet the first prong of the test, which requires showing a serious professional error by his attorney.
Moreover, even if Phillips's counsel made an error in failing to ask for a clarification of the indictment, Phillips has not shown, but for such an error, he would have refused the plea offer and insisted on proceeding to trial. Thus, Phillips has also failed to meet the second prong of the test.
Phillips also argues his PFO II conviction violated the prohibition against double jeopardy because the indictment was based on his rape conviction, thus violating the holding in France. He acknowledges the trial court's finding that the Commonwealth intended to use the more recent burglary conviction as the enhancement offense, but argues there is no proof for this in the record and the indictment is silent as to which prior felony it is referencing.
Generally, "defects in an indictment will not support a collateral attack upon a judgment of conviction." Warner v. Commonwealth, 385 S.W.2d 77, 78 (Ky. 1964). "[N]o defect in an indictment short of one that completely vitiates it affects the validity of the proceeding." Davenport v. Commonwealth, 390 S.W.2d 662, 663 (Ky. 1965). In this case, any error or deficiency in the indictment was harmless because of the existence of the 2007 burglary conviction. Phillips himself does not deny that the burglary conviction could have supported the PFO II conviction.
An evidentiary hearing is only required "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (internal citations omitted). No such material issues existed in this case, and the trial court did not err in refusing to hold an evidentiary hearing on the motion.
The order denying the RCr 11.42 motion is therefore affirmed.
CAPERTON, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY.
