Bishop v. Commonwealth

357 S.W.3d 549, 2011 Ky. App. LEXIS 168, 2011 WL 4107277
CourtCourt of Appeals of Kentucky
DecidedSeptember 16, 2011
DocketNo. 2010-CA-000706-MR
StatusPublished
Cited by1 cases

This text of 357 S.W.3d 549 (Bishop v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bishop v. Commonwealth, 357 S.W.3d 549, 2011 Ky. App. LEXIS 168, 2011 WL 4107277 (Ky. Ct. App. 2011).

Opinion

OPINION

LAMBERT, Judge:

This is a post-conviction proceeding in which Charles L. Bishop is appealing from the Jefferson Circuit Court’s denial of his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief. After carefully reviewing the record, we affirm the circuit court’s order.

In July 2005, the Jefferson County grand jury indicted Bishop in a six-count indictment related to crimes committed against the named victim, K.V.,1 on April 30, 2005, when Bishop allegedly restrained her, forced her into his home, sexually assaulted her, and hit her with his fists and a club. As a result, Bishop was indicted on two counts of first-degree rape (Kentucky Revised Statutes (KRS) 510.040(l)(a)); two counts of first-degree sodomy (KRS 510.070(l)(a)); one count of kidnapping (KRS 509.040); and one count of second-degree assault (KRS 508.020). Another grand jury indicted Bishop several months later for being a first-degree persistent felony offender (PFO I) (KRS 532.080) based upon two prior felony convictions in 1984 and 1976. A public defender entered an appearance on Bishop’s behalf in October 2005.

The matter proceeded to a jury trial beginning on October 24, 2006. During the morning of October 25, 2006, Bishop expressed his dissatisfaction with his counsel and requested a new attorney. The circuit court denied the motion, but it eventually permitted Bishop to serve as co-counsel along with his appointed counsel. During the course of the trial, the [551]*551Commonwealth dismissed one of the sodomy charges, and the circuit court directed a verdict in Bishop’s favor on one of the rape charges. The matter went to the jury on the remainder of the charges. The jury found Bishop not guilty of kidnapping but guilty of the lesser-included charge of first-degree unlawful imprisonment; guilty of second-degree assault; and not guilty of the remaining first-degree sodomy charge. However, the jury was unable to reach a verdict on the remaining rape charge.

On October 30, 2006, the circuit court planned to hold the scheduled penalty phase with the jury. However, Bishop opted to withdraw his earlier plea of not guilty, accept the Commonwealth’s offer, and enter a guilty plea. In exchange for pleading guilty to the amended charge of unlawful imprisonment, second-degree assault, and being a PFO I, the Commonwealth agreed to dismiss the rape and sodomy charges. In exchange for the plea, the Commonwealth then recommended a sentence of ten years on the assault conviction, enhanced to fifteen years by the PFO I conviction, and a sentence of five years on the unlawful imprisonment conviction, also enhanced to fifteen years by the PFO I conviction, both to be served concurrently for a total of fifteen years’ imprisonment. The offer specifically stated that Bishop agreed to waive all appeals and that the Commonwealth agreed to dismiss with prejudice the rape charge on which the jury was unable to reach a verdict. The circuit court held a guilty plea hearing in which it found that the plea had been entered into knowingly and voluntarily and that there was a factual basis for the plea. The circuit court then accepted the plea and entered a judgment of conviction and sentence on November 3, 2006, in accordance with the guilty plea and recommended sentence. Again, the judgment specifically stated that Bishop agreed to waive all appeals and that the Commonwealth had agreed to dismiss the rape and sodomy charges. Bishop attempted to appeal this judgment almost a year later, but his appeal was dismissed as untimely by this Court in an order entered November 16, 2007.

On October 30, 2009, Bishop filed a pro se RCr 11.42 motion to vacate the 2006 judgment, alleging ineffective assistance of counsel. He claimed that his attorney refused to defend him unless he entered a guilty plea, that the Faretta2 hearing was both untimely and insufficient, that his attorney failed to submit proper instructions related to the assault charge, that his attorney failed to raise an issue related to his PFO status, and that his attorney failed to subject the Commonwealth’s case to meaningful, adversarial testing. The circuit court initially denied the motion as untimely, but later reconsidered that ruling and reviewed the merits of Bishop’s arguments. It then denied the motion by order entered March 12, 2010, finding that Bishop’s motion did not support the granting of any relief. This appeal now follows.

On appeal and as he did in his RCr 11.42 motion, Bishop alleges that his trial counsel did not provide him with effective assistance, citing several instances where he claims his attorney did not meet the appropriate standard. He states that his attorney refused to defend him unless he pled guilty, failed to seek instructions on a lesser-included offense or self-defense, failed to attack the constitutionality of KRS 532.080, and failed to subject the Commonwealth’s case to meaningful, adversarial testing. He also contends that the trial court did not conduct a proper Faretta hearing before permitting him to act as co-counsel. The Commonwealth, on [552]*552the other hand, argues that Bishop has waived all issues except whether his plea was involuntary. Further, the Commonwealth contends that basic contract principles apply to the plea agreement Bishop entered into, in which he waived his right to appeal.

We shall briefly describe the standard of review in RCr 11.42 post-conviction actions. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).

In Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App.1986), this Court addressed the validity of guilty pleas in the context of post-conviction actions. Specifically addressing the two-part test used to challenge a guilty plea based upon ineffective assistance of counsel, the Sparks Court instructed:

A showing that counsel’s assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (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.

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Bluebook (online)
357 S.W.3d 549, 2011 Ky. App. LEXIS 168, 2011 WL 4107277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishop-v-commonwealth-kyctapp-2011.