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MONTECARLO GARTRELL APPELLANT, V. COMMONWEALTH OF KENTUCKY APPELLEE.
No. 2009-CA-001080-MR.Court of Appeals of Kentucky.
October 29, 2010
LAMBERT, SENIOR JUDGE
Montecarlo Gartrell, proceeding pro se, appeals from a judgment of the Boone Circuit Court denying his petition for postconviction relief filed pursuant to Kentucky Rules of Civil Procedure (RCr) 11.42. Appellant raised a number of claims in support of his motion, including ineffective assistance of counsel. Having reviewed the record, we believe that an evidentiary hearing is required. Thus, we vacate and remand for further proceedings consistent with this opinion.
Facts and Procedural History
Appellant was charged with committing first-degree robbery in violation of KRS 515.020 and being a first-degree persistent felony offender (PFO) in violation of KRS 532.080(3) after he was accused of robbing the First Financial Bank in Hebron, Kentucky, and taking approximately $6,000 in cash. Pursuant to a plea agreement, Appellant pled guilty to the first-degree robbery charge in exchange for the Commonwealth’s recommendation of the minimum ten-year sentence for that offense. The PFO charge was dismissed because of the age of Appellant’s prior convictions. After a plea colloquy with Appellant and his defense counsel, the trial court accepted Appellant’s guilty plea and sentenced him to ten years’ imprisonment in accordance with the Commonwealth’s sentencing recommendation.
On April 6, 2009, Appellant filed a motion for post-conviction relief pursuant to RCr 11.42 on the grounds that he had received ineffective assistance of counsel. Appellant also filed corresponding motions for an evidentiary hearing and for appointment of counsel. In support of his RCr 11.42 motion, Appellant argued that his trial counsel was ineffective because she had: (1) failed to properly investigate his mental health in order to determine his competency to plead guilty; (2) failed to conduct a proper investigation of the case in general and advised him to plead guilty to first-degree robbery even though the facts would not have supported a conviction for this offense; and (3) advised him to plead guilty in the face of prosecutorial misconduct. The Boone Circuit Court denied Appellant’s motion without an evidentiary hearing on May 20, 2009. This appeal followed.
On appeal, Daniels argues that the circuit court erroneously denied his motion for RCr 11.42 post-conviction relief without a hearing. Because an evidentiary hearing was not held, “[o]ur review is confined 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.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). RCr 11.42 requires an evidentiary hearing “if the answer raises a material issue of fact that cannot be determined on the face of the record.” RCr 11.42(5); see also Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). “The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them.” Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). However, there is no need for an evidentiary hearing if the record refutes the claims of error or if the defendant’s allegations, even if true, would not be sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). With these standards in mind, we turn to Appellant’s arguments.
We first address Appellant’s contention that he was entitled to an evidentiary hearing on his RCr 11.42 motion because his counsel advised him to plead guilty to first-degree robbery even though the facts of the case could not have supported such a conviction. This case is somewhat unusual in that during Appellant’s plea colloquy with the court, both Appellant’s attorney and the Commonwealth’s Attorney interjected and agreed that the facts of the case were undisputed. Both represented that Appellant had: (1) entered the bank; (2) made a demand for money in the guise of a request for a loan for $30,000; (3) placed his hand in his jacket pocket; and (4) then placed his hand/pocket on top of the bank counter while telling the bank clerk to give him money.
Appellant’s attorney told the trial judge that this case was one of the most “borderline” first-degree robbery cases with which she had ever dealt. She indicated, though, that Appellant had acted in a way that arguably suggested to the bank teller that he had a gun. Based on unsworn assertions made by both Appellant’s counsel and the Commonwealth’s Attorney, it does not appear that Appellant was actually armed at the time of the robbery. Moreover, it does not appear that Appellant ever actually told the bank teller that he had a gun or was otherwise armed. Appellant’s counsel told the court that she believed that the case ultimately boiled down to whether she could procure a directed verdict on Appellant’s behalf as to the question of whether his actions as a matter of law were enough to constitute first-degree robbery. Because of her perception of the case as “borderline,” however, she ultimately advised Appellant to plead guilty to first-degree robbery in exchange for the minimum sentence for that offense.
In order for a defendant to prove ineffective assistance of counsel when a guilty plea has been entered, he must show:
(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.
As noted above, during Appellant’s plea colloquy hearing, Appellant’s counsel expressed her belief that Appellant’s case was a “borderline” first-degree robbery case. KRS 515.020, the statute addressing the offense of first-degree robbery, provides:
(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.
The parties appear to agree that Appellant did not cause physical injury to anyone and was not, in fact, armed with a deadly weapon. However, in accordance with KRS 515.020(1)(c), the Commonwealth is not required to prove that a robber actually possessed a gun or other deadly weapon in order to secure a conviction for first-degree robbery.
We next turn to Appellant’s argument that he was entitled to an evidentiary hearing on his RCr 11.42 motion because his counsel failed to investigate his alleged mental health issues and his competency to plead guilty. Appellant’s brief is somewhat vague on exactly why his mental health required investigation. However, he mentions a letter that he provided to the trial judge prior to pleading guilty in which he indicated that he suffered from depression and that he must have taken too much of his prescribed depression medication on the day that he robbed the bank. Appellant’s RCr 11.42 motion further alleges that he advised his attorney that he was under the care of a psychiatrist and was taking psychoactive drugs; therefore, she was aware of his mental health issues. The record also contains a document, presumably from Appellant’s psychiatrist, that details Appellant’s prescription information and estimated that Appellant would be able to return to work within three months of March 26, 2005 approximately five months before the subject incident.
After reviewing this information, we fail to see how it supports Appellant’s contention that his mental health affected his competency to plead guilty or his contention that his counsel was ineffective. Appellant himself blames an overdose of his psychiatric medication not his depression for his decision to rob the bank, and he has presented nothing specific to support his contention that he failed to understand the nature of the criminal proceedings against him or the consequences of pleading guilty because of his issues with depression. Indeed, a review of the plea colloquy hearing reflects that Appellant was an active participant in that proceeding and clearly understood the nature of the charges against him and the consequences of pleading guilty. Appellant also denied suffering from any mental disease or disability that would affect his ability to reason at the time of his plea. “Solemn declarations in open court carry a strong presumption of verity.” Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990). Appellant further signed a motion to enter a guilty plea (AOC form 491) and indicated that he had read and understood its contents. Such facts create a presumption that Appellant’s plea was voluntary. See id.
Moreover, Appellant acknowledges that a “hearing for the purpose of determining mental capacity is required only when there are reasonable grounds to believe that the defendant is not mentally competent.” Pate v. Commonwealth, 769 S.W.2d 46, 47 (Ky. 1989). Appellant has provided nothing to suggest that there were “reasonable grounds” to believe that he was mentally incompetent at the time he pled guilty, and he has produced nothing of note to suggest that an evidentiary hearing is merited as to this issue. Instead, his argument amounts to speculation that his depression “might have” affected his competency to plead guilty. Speculation alone, however, does not constitute grounds for an evidentiary hearing as “RCr 11.42 does not require a hearing to serve the function of a discovery deposition.” Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Therefore, Appellant’s argument is rejected. All other arguments raised by Appellant in his brief do not merit comment and are summarily rejected.
For the foregoing reasons, the order of the Boone Circuit Court denying Appellant’s RCr 11.42 motion for post-conviction relief without an evidentiary hearing is vacated and this matter remanded for an evidentiary hearing consistent with this opinion.