Roach v. Commonwealth

384 S.W.3d 131

Terry W. ROACH, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000141–DG.

Supreme Court of Kentucky.

Sept. 20, 2012.

Rehearing Denied Dec. 20, 2012.

Meggan Elizabeth Smith, Department of Public Advocacy, LaGrange, KY, Marguerite Neil Thomas, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, David Wayne Barr, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

In June 2002, Terry Roach pled guilty in the McCracken Circuit Court to the January 2001 armed robbery and murder of Clifford Donald Robinson in Paducah. He was sentenced to life in prison without the possibility of parole for twenty-five years. This Court affirmed Roach's conviction in an unpublished Opinion that became final in January 2004. Pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42, in March 2004 Roach filed in the trial court a pro se motion seeking relief from the court's Judgment. He also requested an evidentiary hearing and assistance from the Department of Public Advocacy (DPA). The trial court granted the latter request in March 2004, and in May 2004 a DPA attorney entered his notice of appearance on Roach's behalf. For reasons not apparent from the record, the matter was then allowed to lie dormant for more than four years, until September 2008, when counsel finally filed his amendment to Roach's original motion. At that point, the trial court denied the motion without a hearing, finding in a brief order that counsel's amendment was untimely—both outside the three-year statute of limitations and barred by laches—and that on the merits the claims in Roach's original motion were refuted by the record. The Court of Appeals affirmed, and we granted discretionary review to consider whether the courts below correctly deemed counsel's amendment to Roach's motion untimely, and whether Roach was entitled to an evidentiary hearing. Although our reasoning differs somewhat from that of the trial court and the Court of Appeals, which did not apply Kentucky Rule of Civil Procedure (CR) 15, we agree with those courts that to the extent the amended motion sought to raise a new, factually independent claim it was subject to dismissal as untimely, and we also agree that Roach's timely claims are facially without merit. Accordingly, we affirm the decision of the Court of Appeals.

RELEVANT FACTS

According to police reports, in the early morning hours of January 31, 2001, EMS personnel responding to a 911 call found Donald Robinson's body slumped over in the cab of his pickup truck, which was parked in the 2100 block of Park Avenue in Paducah. An autopsy later confirmed that Robinson died from two gunshot wounds to the head, inflicted at close range. About two weeks after the body was found, an anonymous caller reported to police investigators that Terry Roach had claimed responsibility for the shooting and had fled to Atlanta, Georgia. The investigators interviewed Roach's girlfriend, who confirmed that Roach had admitted both shooting Robinson and taking drugs and money from him. With the girlfriend's consent, the officers then recorded two phone conversations between the girlfriend and Roach, who was indeed in Atlanta, and who in the course of the conversations made incriminating statements. Roach was eventually arrested in Illinois and extradited to McCracken County, where he had been indicted earlier for murdering Robinson and for robbing him.

Because of the aggravating circumstance of the robbery, the Commonwealth announced that it would seek the death penalty for Robinson's murder. Roach retained private counsel, who, having unsuccessfully endeavored to remove the death penalty from the case, apparently advised Roach that if he went to trial he ran a very significant risk of being sentenced to death and urged him, therefore, to accept the Commonwealth's plea-bargain offer of life in prison without the possibility of parole for twenty-five years. In late May of 2002, within a week of Roach's trial, the police obtained a statement from another witness who claimed that during the late evening of January 30, 2001 he had heard Roach say that he had just shot Robinson, and had seen Roach transfer a handgun to another person. A few days later, on June 3, 2002, Roach accepted the Commonwealth's offer and pled guilty to both murder and first-degree robbery. At the Boykin hearing, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the trial court explained the constitutional rights Roach was waiving and received Roach's assurances that he understood his rights, that he was proceeding voluntarily and not as a result of threats or unstated promises, and that he was pleading guilty because he was in fact guilty. On this last point, the trial court asked Roach whether he had shot and killed Robinson and whether he had taken money from him, and to both questions Roach replied that he had.

A couple of months later, on August 8, 2002, Roach returned to court for sentencing. During that proceeding the court allowed Roach to make a statement, and Roach asserted that he had been “forced” to plead guilty, but having decided that he could not “go down for something that I didn't do,” he moved to withdraw his plea. In denying the motion, the court recalled Roach's emphatic admission of the offenses during his plea colloquy and deemed incredible Roach's suggestion that his privately retained attorneys had forced him to plead guilty. Roach appealed from that ruling to this Court, which held that the trial court had not abused its discretion by denying Roach's withdrawal motion without inquiring further into the circumstances surrounding the voluntariness of his guilty plea. Roach v. Commonwealth, 2003–SC–0013–TG, 2003 WL 22971265 (Ky. Dec. 18, 2003).

That decision became final in January 2004, and, as noted above, in March of that year, Roach, pro se, filed a timely RCr 11.42 motion in which he claims that his guilty plea was tainted by his trial attorneys' ineffective assistance. Appealing now from the denial of that motion, Roach first contends that both the trial court and the Court of Appeals erred by disregarding as untimely his appointed counsel's long delayed amendment of Roach's timely pro se pleading. We disagree.

ANALYSIS

I. To the Extent That Roach's Amended Motion Raised Claims Factually Unrelated to the Claims Raised In His Original Motion, They Did Not Relate Back and Were Untimely.

Section 10 of RCr 11.42 imposes a three-year limitations period “after the judgment becomes final” for filing motions under that rule. The question here is what effect the limitations period has on amendments to RCr 11.42 motions. Neither RCr 11.42 itself, nor any other provision of the Criminal Rules addresses whether and how motions under the rule may be amended. RCr 13.04 instructs that gaps like this in the Criminal Rules may be filled by the pertinent Civil Rules. CR 15 is the Civil Rule governing amendments to pleadings, and this Court has indicated that CR 15 is applicable to RCr 11.42 motions. Hodge v. Commonwealth, 116 S.W.3d 463, 472 (Ky.2003); Bowling v. Commonwealth, 926 S.W.2d 667, 670 (Ky.1996).

CR 15 allows pleadings to be amended “once as a matter of course at any time before a responsive pleading is served,” but otherwise “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” CR 15.01. Under CR 15, amendments proffered after the statute of limitations has run relate back to the date of the (timely) original pleading provided that the “claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” CR 15.03(1). As noted, Roach filed his original motion well within the limitations period (which ended in January 2007), but counsel did not proffer the amended motion until September 2008, more than one and one-half years after the three-year limitations period had expired. The amended motion was untimely, therefore, unless its claims arose from the same “conduct, transaction, or occurrence” Roach set forth or attempted to set forth in his original motion.

Our case law construing the relation-back rule is sparse, but in Underhill v. Stephenson, 756 S.W.2d 459 (Ky.1988), a medical malpractice case, we held that the plaintiffs should have been allowed to amend their complaint to bring in additional parties even after the limitations period had expired because the amended claims clearly arose from the same personal injury alleged in the original complaint. “The important consideration,” under CR 15.03(1), we explained, “is not whether the amended pleading presents a new claim or defense, but whether the amendment relates to the general factual situation which is the basis of the original controversy.” 756 S.W.2d at 460 (citing Perkins v. Read, 616 S.W.2d 495 (Ky.1981)).

How this standard is to apply in the RCr 11.42 context is not immediately apparent, but we find helpful the United States Supreme Court's application of the very similar Fed. Rule Civ. Proc. 15(c) in Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). Mayle involved an attempt by a habeas petitioner to amend his timely pro se petition with the aid of counsel outside the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). As does our rule, what was then Fed. Rule Civ. Proc. 15(c)(2) and is now, after amendment in 2007, Fed. Rule Civ. Proc. 15(c)(1)(B) permits such an amendment to relate back to the filing date of the original pleading when both the original pleading and the amendment arise from the same “conduct, transaction, or occurrence.” The petitioner's...