Opinion
NO. 2011-CA-000911-MR
03-29-2013
JEFFERY A. SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 10-CR-00306
OPINION
AFFIRMING
BEFORE: COMBS, LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: Jeffrey A. Smith has appealed from the Campbell Circuit Court's denial of his motion for post-judgment relief pursuant to CR 60.02 without first convening an evidentiary hearing. We affirm.
Kentucky Rules of Civil Procedure.
On September 27, 2010, following plea negotiations, Smith entered a guilty plea to one count of sexual abuse in the first degree in exchange for the Commonwealth's agreement to dismiss a charge of persistent felony offender in the first degree (PFO I) and recommending a sentence of one-year imprisonment. Smith was sentenced in accordance with the agreement on November 30, 2010, and the Campbell Circuit Court entered its written judgment on December 7, 2010. In addition to the one-year term of imprisonment, Smith was required to complete a Sex Offender Treatment Program, register as a sex offender for a period of twenty years, and be subject to a five-year period of conditional discharge following his release from incarceration. No direct appeal was taken from the final judgment.
Kentucky Revised Statutes (KRS) 510.110, a Class D felony.
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On March 15, 2011, Smith moved to withdraw his guilty plea pursuant to CR 60.02 based on what he described as "newly discovered evidence." He claimed the alleged victim, the thirteen-year-old daughter of his ex-girlfriend, had recanted her allegations that he had inappropriately touched her. Smith attached an affidavit to his motion from Timothy Reeves, a former paramour of the child's mother. The affidavit indicated the child told Reeves she had fabricated the alleged abuse at the behest of her mother in an effort to "get Smith in trouble." Smith contended that had he known of the existence of this potentially exculpatory evidence, he would have insisted on going to trial rather than entering a guilty plea. The Commonwealth filed a response opposing the motion. On April 13, 2011, without convening an evidentiary hearing, the trial court denied Smith's motion. This appeal followed.
Smith contends the trial court erred in denying his motion and in failing to hold a hearing on the merits of the issues presented therein. He argues the newly discovered evidence was sufficient to require the trial court to grant him a new trial. He believes Reeves's statements do more than merely impeach the complaining witness and are of "such decisive value or force" that they would convince him not to enter a guilty plea and would ultimately change the outcome of his trial. Smith bases his argument on similar language contained in Foley v. Commonwealth, 55 S.W.3d 809, 814 (Ky. 2000), and Collins v. Commonwealth, 951 S.W.2d 569 (Ky. 1997). Thus, he contends he was entitled to withdraw his guilty plea and proceed to trial, or alternatively, he should have been granted an evidentiary hearing on the matter to develop and explore Reeves's potentially exculpatory testimony. We disagree.
Acting as a "safety valve" and "error correcting device for trial courts," CR 60.02 provides relief where extraordinary and compelling equities exist. Kurtsinger v. Bd. of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky. 2002); Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). The rule gives a trial court the flexibility needed to correct injustice and the power to correct judgments. Richardson v. Head, 236 S.W.3d 17, 20 (Ky. App. 2007). For a conviction to be vacated, the movant must "demonstrate why he is entitled to this special, extraordinary relief." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). We will not disturb the trial court's ruling absent an abuse of discretion. Id.
In the case sub judice, Smith bears a greater burden as he entered an unconditional guilty plea to the charged offense. "This is because the effect of a valid guilty plea is to waive all defenses other than that the indictment charges no offense." Commonwealth v. Elza, 284 S.W.3d 118, 121 (Ky. 2009) (citing Quarles v. Commonwealth, 456 S.W.2d 693 (Ky. 1970)). "A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged." Skeans v. Commonwealth, 912 S.W.2d 455 (Ky. App. 1993) (quoting Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986)). As no challenge has been raised to the voluntariness or validity of Smith's plea, we must conclude it is legitimate and legally sound. Thus, by pleading guilty, Smith admitted to inappropriately touching the thirteen-year-old child as alleged in the indictment, and the "newly discovered evidence" must be of sufficient force and weight to overcome that solemn admission. We have reviewed the record and do not believe that it is.
As the trial court correctly noted, the only allegation put forth in Smith's motion to withdraw his guilty plea was that the complaining witness lied about the charge. The sole support for his claim is the affidavit from Reeves which recites statements allegedly made by the child to Reeves several months prior to Smith's entry of his guilty plea. The trial court further correctly noted that Reeves had previously been charged with a felony resulting from striking the same child's mother with his car and had recently ended his romantic relationship with the child's mother. Based on this history, there is no certainty that a jury would believe Reeves's statements to the exclusion of the victim. Therefore, we cannot conclude that the evidence presented was of "such a decisive value or force" that its presentation at a trial would, with reasonable certainty, change the verdict. Foley; Collins. Thus, we conclude the trial court's denial of Smith's CR 60.02 motion was not erroneous.
Accordingly, we affirm the Boone Circuit Court order denying Smith's CR 60.02 motion.
ALL CONCUR. BRIEFS FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky