Opinion
NO. 2012-CA-000081-MR
05-10-2013
TIMOTHY TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Wampler Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE IRV MAZE, JUDGE
ACTION NO. 04-CR-000755
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. CAPERTON, JUDGE: The Appellant, Timothy Taylor, was convicted of intentional murder and was sentenced to twenty-five years' imprisonment. He appeals the November 7, 2011, opinion and order of the Jefferson Circuit Court denying his request for an evidentiary hearing pursuant to RCr 11.42, and denying his request to proceed in forma pauperis. The Commonwealth disagrees and asserts that the court did not err in overruling the RCr 11.42 motion without a hearing, or in denying Taylor's request to proceed in forma pauperis. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Taylor directs the attention of this Court to the fact that the original order of the circuit court is missing from the record on appeal. Taylor asserts that according to the records received by his counsel, the case file was "recreated by Paul Richwalsky [Assistant Commonwealth Attorney] for Supreme Court review following loss of original documents by Attorney General's office."
Taylor is an individual with learning disabilities and a documented full-scale IQ of 75. Taylor was convicted of the intentional murder of Christopher Buckner, in Louisville. Taylor was 17 years old at the time of the murder. His conviction was reviewed by the Kentucky Supreme Court. The Court summarized the underlying facts as follows:
At approximately 12:30 p.m. on December 29, 2003, Christopher Buckner was shot and killed outside of a house located at 3134 Whitman Way in Louisville. Witnesses at the scene told the police that two brothers, "Little Ray" and "Little Timmy," were involved in the shooting and that a blue Ford Crown Victoria had been seen driving away from the area. The police soon identified the two individuals as the defendant, Timothy Taylor [hereinafter Taylor], and his older brother, Raymond Taylor [hereinafter Raymond]. Shortly after the murder, the police found the blue Crown Victoria parked a few blocks away from the scene of the crime. Upon locating the vehicle, the police then saw Raymond walking toward the car. As the police began to approach the vehicle, Raymond ran and led them on a brief chase through the surrounding area. When Raymond was apprehended at 2:13 p.m., he informed the officers, "I can take you to the killer." The police then transported Raymond to the police station and continued to look for Taylor.
Shortly thereafter, the police received information from a different source that Taylor was staying at a house a few
blocks away from the location of Raymond's arrest. The officers went to the address, obtained permission from its owner, Ms. Cathey, to enter the residence, and found Taylor standing in the hallway. The police then handcuffed Taylor and took him to the police station. After speaking with Louisville Police Detectives Lawson and Schraut, Taylor waived his Miranda rights and agreed to provide a formal statement to the police. In his taped confession, Taylor revealed that on the morning of the shooting, he discovered that his car had been broken into and that several items had been stolen, including his handgun. Suspecting Buckner of the robbery, Taylor and Raymond sought out Buckner and located him at the house on Whitman Way. Although Buckner was asleep when Raymond and Taylor got to the house, Buckner was awakened and eventually went outside to talk with Raymond and Taylor. Taylor told the police that once Buckner was outside, he shot Buckner about two or three times with a 9mm. Taylor stated that he then ran to his car and drove away, while Raymond fled on foot. Taylor and Raymond were jointly charged with Buckner's murder. The Commonwealth, however, severed the cases and chose to try Taylor first. On August 21, 2006, the jury found Taylor guilty of murder. The jury then recommended that he be sentenced to serve thirty years in prison. On October 13, 2006, the trial court reduced the jury's recommendation and sentenced Taylor to a total of twenty-five years imprisonment.
Taylor v. Commonwealth, 276 S.W.3d 800, 803-04 (Ky. 2008).
Thereafter, on September 11, 2011, Taylor filed a pro se petition for a writ of habeas corpus in the Morgan County Circuit Court. That petition was denied on June 14, 2012. Subsequently, on August 5, 2011, Taylor sought an extension of the time limit for filing of an RCr 11.42 motion in the instant case. As a basis for that motion, Taylor asserted that the legal aide that had been helping him with the case was transferred to another institution, and that it was impossible for the new legal aide assigned to his case to properly assist him in the time that was left to file. That motion was denied by the trial court on August 15, 2011, and the court noted that Taylor had until December 18, 2011, to timely file his RCr 11.42 motion. Taylor asserts that the court, in setting the December 18, 2011, deadline, improperly found that the time for filing an RCr 11.42 motion began to run on December 18, 2008, instead of March 19, 2009, when the Supreme Court's order became final.
The Commonwealth asserts that though outside the record in this case, these proceedings are relevant as they concern the underlying convictions herein, and thus requests that this Court take judicial notice of the proceedings pursuant to KRE 201 and CR 76.12(4)(c)(vii).
Taylor argues that because he had until only December 18, 2011, to file his motion, he did so in a hastier fashion than he otherwise would have. However, Taylor ultimately filed his RCr 11.42 motion on November 1, 2011, approximately six weeks before it was due, even according to the earlier December 18, 2011, deadline set by the court.
On November 1, 2011, Taylor field a series of pro se motions including a RCr 11.42 motion to vacate with supporting memorandum, a motion for an evidentiary hearing, a motion to proceed in forma pauperis, and a motion for the appointment of counsel. Taylor's filing consisted of an affidavit and a seven-page "Memorandum of Law." In the memorandum, Taylor argued that the trial court erred in failing to conduct a competence hearing in light of testimony at the suppression hearing that indicated he was "identified as a learning disabled student," and that his "full-scale IQ was 75." Taylor asserts that while the memorandum also raised trial counsel's failure to petition for a competency hearing, no arguments were raised regarding trial counsel's additional failure to seek funds for an independent competency and capacity evaluation, or his failure to present any expert testimony at trial regarding Taylor's mental functioning.
Taylor's RCr 11.42 motion requested that if the court did not enter an order vacating its sentence and judgment of conviction that, alternatively, it should: "(1) Appoint counsel to represent [Taylor] in this action and provide counsel ample time to provide a supplement; (2) Hold an evidentiary hearing with Movant present; (3) Allow Taylor to proceed in this action as a pauper; and (4) To grant any and all other relief the court deems fit."
As noted, in an opinion and order entered on November 7, 2011, the Jefferson Circuit Court denied all of Taylors's motions, finding that the merits of his allegations were refuted by the record. In so finding, the court held that the issue of competency should have been raised via direct appeal rather than in a motion under RCr 11.42. In so finding, however, the court noted that the failure to raise competency issues on collateral appeal generally does not preclude collateral appeal, and then analyzed the case as an unwaived claim. It then found that, "The evidence presented during the suppression hearing of [Taylor's] intelligence and educational difficulties was insufficient to raise questions about his competency to stand trial." It is from that opinion and order that Taylor now appeals to this Court.
Prior to reviewing the arguments of the parties, we note first that we review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As established in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.Bowling at 411-412. Additionally, we note that the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances, counsel's action "might have been considered sound trial strategy." Strickland, 466 U.S. at 689.
2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.
On the issue of whether an evidentiary hearing is necessary, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), is controlling in this matter. Under Fraser, Taylor is only entitled to an evidentiary hearing if there are allegations that cannot be conclusively resolved upon the face of the record. Further, we note that in determining whether the allegations in a post-trial motion to vacate, set aside or correct sentence can be resolved on the face of the record, the trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Id. at 452-53. We review the arguments of the parties with these standards in mind.
On appeal, Taylor argues first, that the circuit court erred in denying his request for an evidentiary hearing. He asserts that the allegations made in his motion were not clearly refuted by the record and that, accordingly, the court's refusal to grant an evidentiary hearing was erroneous. Taylor argues that the court erred in stating that, "The evidence presented during the suppression hearing of [Taylor's] low intelligence and educational difficulties was insufficient to raise question about his competency to stand trial." Taylor argues that this statement, in some manner indicates that the court improperly inferred facts that were not in evidence. Specifically, he makes the argument that the court erroneously made the assumption that his counsel failed to request a competency hearing because counsel believed that there was no evidence of incompetence to support such a request. Taylor asserts that there is in fact no evidence in the record to indicate why counsel failed to request a competency hearing. Thus, Taylor argues that the court was required to grant him an evidentiary hearing for the purpose of further addressing this issue.
In response, the Commonwealth argues that the court did not err in overruling Taylor's RCr 11.42 motion without an evidentiary hearing. It asserts that the trial court correctly examined Taylor's motion, and looked to the testimony which he identified as the basis for that motion, and found that the evidence refuted Taylor's allegations. Moreover, the Commonwealth argues that during Taylor's direct appeal, he raised issues regarding his confession to the police and the denial of his suppression motion. In the course of making those arguments, Taylor attacked the voluntariness of his statement to the police. The Commonwealth argues that our Supreme Court reviewed the issue of Taylor's competency in the course of addressing those issues, including the same evidence upon which Taylor now relies in his RCr 11.42 motion. The Court found Taylor to be competent, and the Commonwealth urges this Court to do the same.
In his motion, Taylor focused on testimony from Debbie Montgomery, an employee of the Jefferson County Schools, who testified that Taylor had learning disabilities, was a special education student, and had an IQ score of 75.
Upon review of the record, the arguments of the parties, and the applicable law, we are in agreement with the Commonwealth that the court below properly denied Taylor's request for an evidentiary hearing. As support for his argument that counsel should have requested a competency hearing, Taylor refers only to his IQ, and to testimony during the course of the suppression hearing to the effect that he had some educational difficulties. While Taylor may have educational difficulties and a relatively low IQ, these factors alone do not necessarily raise a reasonable question as to his competency. See Atkins v. Virginia, 536 U.S. 304, 318 (2002). Indeed, a defendant is competent to stand trial if he has the capacity to appreciate the nature and consequences of the proceedings against him, or to proceed rationally in his own defense. KRS 504.060(4).
In which our United States Supreme Court held that learning disabilities do not necessarily create incompetence, nor does a low IQ. As the Court stated, "Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial." Atkins v. Virginia, 536 U.S. 304, 318 (2002).
In reviewing this issue, we further note that our Kentucky Supreme Court, in addressing the issue of whether Taylor's statement to the police was voluntary, reviewed the recorded statement and found that:
In Taylor's case, there is no evidence of police coercion or of Taylor's unwillingness to cooperate fully with theTaylor, 276 S.W.3d at 806. Additionally, in judging the voluntariness of Taylor's waiver of his Miranda rights, the Court considered the same testimony and evidence upon which Taylor now relies in his RCr 11.42 motion. Upon review of this evidence, our Supreme Court held:
detectives. After the detectives advised Taylor of his Miranda rights, Taylor indicated that he did not have any questions, that he understood his rights, and that he wanted to talk about what happened. Taylor's subsequent statements and demeanor revealed that he was calm, aware of the consequences of his actions, and interested in helping himself by cooperating. The detectives gave Taylor a meal, drinks, cigarettes, and bathroom breaks. Rather than threatening or coercing Taylor, the detectives informed him that they could not guarantee any specific outcome in exchange for his cooperation.
Furthermore, despite Taylor's contention that his low intelligence and classification as a special education student prevented him from being able to understand the consequences of waiving his rights, his demeanor and interactions with the police demonstrated that he was fully aware of the situation. During his police interview, Taylor asked the detectives what his cooperation would do for him, inquired about the different degrees of manslaughter and accompanying prison sentences for each, and expressed a desire to tell the truth because it was the right thing to do. He remained calm throughout the interview process and at no time appeared confused or anxious about having waived his rights.Id. at 807-08.
Sub judice, the court had a duty to proceed with competency hearings only if there were reasonable grounds to believe that Taylor was incompetent to stand trial. KRS 504.100. Evidence of Taylor's demeanor and behavior were relevant factors to be considered in determining whether there were grounds to suspect incompetence. Woolfolk v. Commonwealth, 339 S.W.3d 411 (Ky. 2011). Below, and in his arguments to this Court, the evidence which Taylor presents to support his allegations were his IQ and the difficulties during his formal education, both of which were discussed at the suppression hearing. As noted above, our Kentucky Supreme Court examined these considerations, and concluded that Taylor had the capacity and mental competence to effectively waive his Miranda rights.
It is reasonable to conclude that if Taylor were competent to waive those rights, he may well be competent to stand trial. Further, this Court has reviewed the record and finds no evidence that Taylor behaved in any way that would have given his counsel or the court reason to believe that he was incompetent. To the contrary, the statements which he made to the police reveal an individual who possessed common sense and intelligence concerning his situation and, absent any genuine question arising during the proceedings that would place Taylor's competency in issue, neither Taylor's counsel nor the court had a duty to raise an objection to his ability to stand trial. Accordingly, we find that the court below did not err in denying Taylor's RCr 11.42 motion without a hearing, and we affirm.
As his second basis for appeal, Taylor argues that the trial court erred in denying his request for the appointment of post-conviction counsel and in forma pauperis status. Concerning Taylor's request for the appointment of post-conviction counsel, the law of the Commonwealth is clear. An appellant has no right to appointed post-conviction counsel under either the United States nor the Kentucky Constitution. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001). Indeed, pursuant to RCr 11.42(5), appointed counsel is only required if the allegations are not refuted by the record and an evidentiary hearing is required. Id. Sub judice, and as previously discussed herein, Taylor's allegations were refuted by the record. Accordingly, the trial court had no obligation to appoint counsel to Taylor with respect to his RCr 11.42 motion. We affirm.
Finally, concerning Taylor's argument that the court erroneously denied his motion to proceed in forma pauperis, we are in agreement with Taylor that the court erred in denying this motion. While the court denied Taylor's second motion to proceed in forma pauperis concerning his RCr 11.42 action, it had, only a year before, granted Taylor's motion to proceed in forma pauperis when he requested a copy of his trial file. Attached to Taylor's motion to proceed in forma pauperis was an affidavit of indigency, records from the Department of Corrections showing that Taylor had a total of $222.40 deposited into his account in the past six months.
It has long been the rule in this Commonwealth that court costs may not be imposed on an indigent defendant. See Edmonson v. Commonwealth, 725 S.W.2d 595, 596 (Ky. 1987) (superseded by statute as stated in Smith v. Commonwealth, 370 S.W.3d 871 (Ky. 2012)); Ladriere v. Commonwealth, 329 S.W.3d 278, 283 (Ky. 2010); and Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010). However, our Supreme Court recently reexamined this long-standing rule in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012).
In Maynes, our Supreme Court mitigated the bright-line rule concerning the payment of court costs by indigent persons, reasoning that "'need' is a matter of degree and that defendants eligible for DPA representation may nevertheless be required to contribute to their defense or to pay court costs if the court determines that they are able to do so." Id. at 928. The Court ultimately distinguished between two categories of persons: (1) a "needy" (i.e., indigent) person under KRS 31.110 who is unable to pay for legal services; and (2) a "poor" person under KRS 23A.250 who is unable to pay court costs. Id. at 929. The Court held that "a person may qualify as 'needy' under KRS 31.110 because he cannot afford the services of an attorney yet not be 'poor' under KRS 23A.205[.]" Id.
The Court went on to explain that a person is only "poor," if he lacks the ability "to pay court costs without 'depriving himself or his dependents of the necessities of life, including food, shelter or clothing.' " Id. (quoting KRS 453.190(2)), and stated further, that "[w]ithout some reasonable basis for believing that the defendant can or will soon be able to pay, the imposition of court costs is indeed improper." Id. Thus, if a defendant is "needy" but not "poor" then the circuit court may impose court costs on that defendant. Id. On the other hand, if an indigent defendant is also found to be "poor," the circuit court is prohibited from imposing court costs. Maynes, 361 S.W.3d at 929.
Sub judice, prior to denying Taylor's motion, the circuit court issued no finding as to whether he was a "poor person" as defined by KRS 453.190(2), and did not inquire into his ability to pay court costs or for counsel in the foreseeable future. KRS 23A.205(2). That failure was in error.
Having so found, this Court is ultimately of the opinion that this error was ultimately harmless because Taylor was not required to pay a filing fee nor was he in any way denied access to the court system. He was found to be a pauper on appeal, and was appointed counsel accordingly. As previously noted herein, Taylor was not guaranteed the right to counsel in the course of pursuing his RCr 11.42 motion, particularly in light of the fact that his request for an evidentiary hearing was properly denied. Accordingly, though error occurred, we do not believe reversal was required in light of the fact that such error was harmless.
Wherefore, for the foregoing reasons, we hereby affirm the November 7, 2011, order of the Jefferson Circuit Court, denying Taylor's request for an evidentiary hearing pursuant to RCr 11.42, and his request for appointment of counsel.
NICKELL, JUDGE, CONCURS.
ACREE, CHIEF JUDGE, CONCURS IN RESULT WITHOUT SEPARATE OPINION. BRIEFS FOR APPELLANT: John Wampler
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky