Ernest Merriweather v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 16, 2023
• Docket: 2022 CA 001097
• Status: Unknown

Opinion

RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1097-MR

ERNEST MERRIWEATHER APPELLANT

APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE ANDREW C. SELF, JUDGE ACTION NO. 14-CR-00183

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: EASTON, ECKERLE, AND JONES, JUDGES.

ECKERLE, JUDGE: Ernest Merriweather, pro se, appeals from an order of the

Christian Circuit Court denying his post-conviction motion filed pursuant to

Kentucky Rule of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil

Procedure (CR) 60.02. We affirm. BACKGROUND

Merriweather was charged by information entered on May 13, 2014

with one count of first-degree rape, victim under 12 years of age, and one count of

first-degree sodomy, victim under 12 years of age. On November 2, 2015, the

Commonwealth extended a plea offer dismissing the rape charge in exchange for a

plea of guilty to the sodomy charge with a sentence of 20 years of incarceration,

which Merriweather accepted. The Trial Court accepted the plea agreement, and

rendered final judgment on March 18, 2016.

On July 7, 2017, Merriweather, pro se, filed a motion to vacate his

conviction, citing RCr 11.42 and CR 60.02, which the Trial Court denied on

October 19, 2017. Subsequently on August 21, 2020, Merriweather filed a motion,

citing CR 60.02, CR 60.03, and the Eighth and Fourteenth Amendments of the

United States Constitution, requesting an early release from his sentence or release

on home incarceration based on the risk of contracting COVID-19 while

imprisoned. The Trial Court denied the motion, and that denial was affirmed on

appeal in Merriweather v. Commonwealth, No. 2020-CA-1182-MR, 2021 WL

5977912 (Ky. App. Dec. 17, 2021).

On June 16, 2022, Merriweather, pro se, filed another post-conviction

motion, again citing RCr 11.42 and CR 60.02. He asserted that: 1) the Trial Court

erroneously denied his request to withdraw his plea and appoint substitute counsel;

-2- 2) he was denied counsel during his arraignment, preliminary hearing, and the

signing of the information; and 3) he unintelligently and unknowingly entered a

plea without the effective assistance of counsel.1 On August 22, 2022, the Trial

Court rendered an Order denying the motion on the basis it was successive,

untimely filed, and without merit. This appeal followed.2 Additional facts will be

discussed as relevant in the following discussion.

ANALYSIS

A Trial Court’s denial of relief pursuant to RCr 11.42 or CR 60.02 is

reviewed for abuse of discretion. Stanford v. Commonwealth, 643 S.W.3d 96, 99

(Ky. App. 2021) (citations omitted). “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). All motions “shall state specifically the grounds on which the sentence is

being challenged and the facts on which the movant relies in support of such

1 The Trial Court identified seven separate claims. However, Merriweather’s underlying post- conviction motion and appellate brief designate three separate and distinct claims with corresponding arguments laid forth as described. Some of the separate claims identified by the Trial Court are essentially part of the same underlying claim. We address each claim according to how Merriweather pled and organized the claims in his motion and brief. 2 There are deficiencies in Merriweather’s brief, which include the failure to include a statement of points and authorities, a preservation statement of the issues raised on appeal, and sufficient record citations in violation of Kentucky Rule of Appellate Procedure (RAP) 32(A). However, we exercise our discretion to ignore the deficiencies and proceed with review. See RAP 31(H); Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).

-3- grounds.” RCr 11.42(2). “Motions which fail adequately to specify grounds for

relief may be summarily denied, as may be motions asserting claims refuted or

otherwise resolved by the record.” Commonwealth v. Pridham, 394 S.W.3d 867,

874 (Ky. 2012). Under CR 60.02, “[t]he movant must demonstrate why he is

entitled to . . . special, extraordinary relief. Before the movant is entitled to an

evidentiary hearing, he must affirmatively allege facts which, if true, justify

vacating the judgment and further allege special circumstances that justify CR

60.02 relief.” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).

On appeal, Merriweather argues the Trial Court abused its discretion

in denying the underlying post-conviction motion. Upon review, we agree with the

Trial Court’s rationale and affirm its denial. These claims could have previously

been raised either on direct appeal or in the initial post-conviction motion filed on

July 7, 2017, and Merriweather provides no explanation why they were not. See

Gross, 648 S.W.2d at 856 (“The structure provided in Kentucky for attacking the

final judgment of a trial court in a criminal case is not haphazard and overlapping

but is organized and complete. That structure is set out in the rules related to direct

appeals, in RCr 11.42, and thereafter in CR 60.02.”) (emphasis in original).

Additionally, these claims were untimely filed. RCr 11.42(10)

requires a motion to be filed within three years after the judgment becomes final.

See Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App. 1999). RCr 11.42(10)(a)

-4- provides an exception to the three-year deadline if “the facts upon which the claim

is predicated were unknown to the movant and could not have been ascertained by

the exercise of due diligence[.]” Alternatively, CR 60.02 requires motions to be

filed within a reasonable time or within one year of judgment if based on the

grounds articulated in subsections (a), (b), and (c). “What constitutes a reasonable

time in which to move to vacate a judgment under CR 60.02 is a matter that

addresses itself to the discretion of the trial court.” Gross, 648 S.W.2d at 858.

The final judgment was entered on March 18, 2016, and the

underlying motion related to this appeal was not filed until June 16, 2022, which is

over three years after the filing deadline. Merriweather asserts newly discovered

evidence, but the underlying motion does not sufficiently demonstrate he diligently

pursued the discovery of this evidence or explain when exactly it was discovered.

See Moorman v. Commonwealth, 484 S.W.3d 751, 757 (Ky. App. 2016) (holding

that a movant “must show both diligence and an extra-ordinary occurrence stood in

[one’s] way” before equitable tolling applies to the three-year filing requirement

under RCr 11.42). Merriweather’s appellate brief attempts to rectify this

deficiency stating he had difficulty obtaining his case file from trial counsel but

does not otherwise provide further detail explaining this difficulty. Regardless, we

will not entertain explanations unpresented to the Trial Court or speculate what

difficulties in communication arose between Merriweather and trial counsel in

-5- obtaining the case file that could have caused an untimely filing of over three

years. Dever v. Commonwealth, 300 S.W.3d 198, 202 (Ky. App. 2009) (“[A]n

appellant will not be permitted to feed one can of worms to the trial judge and

another to the appellate court.”) (internal quotation marks and citation omitted).

Furthermore, the discovery of this evidence only relates to one claim, and

Merriweather provides no explanation in satisfaction of RCr 11.42(10)(a) or CR

60.02 relating to the remaining claims demonstrating why he was unable to raise

them earlier.

Even aside from the procedural errors, Merriweather’s motion would

still fail as each claim is without merit. Merriweather first claims the request to

withdraw his guilty plea was erroneously denied without a hearing prior to

sentencing. He additionally asserts he was erroneously denied the appointment of

substitute counsel in place of trial counsel, who failed to assist in advocating for

the withdrawal of his plea. Merriweather’s underlying motion and brief do not

argue any specifics in support of what is essentially a conclusory argument.

During his sentencing hearing on March 9, 2016, Merriweather verbally expressed

his wish to withdraw his plea agreement on the basis he was under the influence of

medication during the entry of his plea. The Trial Court denied the request, citing

his prior plea colloquy on November 2, 2015. See Zapata v. Commonwealth, 516

S.W.3d 799, 801-02 (Ky. 2017) (internal quotation marks and citation omitted)

-6- (“[T]he trial court is free to deny a motion [to withdraw a plea] under RCr 8.10

without an evidentiary hearing, if the allegations in the motion are inherently

unreliable, are not supported by specific facts or are not grounds for withdrawal

even if true.”); Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006)

(“Solemn declarations in open court carry a strong presumption of verity. The

subsequent presentation of conclusory allegations unsupported by specifics is

subject to summary dismissal, as are contentions that in the face of the record are

wholly incredible.”) (internal quotation marks and citation omitted). When

observing the record, we discern no clear error as Merriweather appeared fully

alert during his plea hearing, participated in the entry of his plea before the Trial

Court, and did not otherwise exhibit any signs of impairment. See Edmonds, 189

S.W.3d at 569 (footnote omitted) (“Appellant was alert and responsive during the

proceedings prior to and throughout the guilty plea. As such, the trial court’s

finding that the medications did not render the plea involuntary or unintelligent

was not clearly erroneous[,]”); Sands v. Commonwealth, 358 S.W.3d 9, 13 (Ky.

App. 2011) (“We review the court’s determination of voluntariness under the

clearly erroneous standard.”). Furthermore, Merriweather’s July 7, 2017, post-

conviction motion made no mention or argument asserting this alleged impairment

as grounds to vacate his plea, but rather, it was premised on a baseless legal

premise that he was a sovereign citizen not under the jurisdiction of the Trial

-7- Court. See Cubar v. Town & Country Bank & Tr. Co., 473 S.W.3d 91, 93 n.1 (Ky.

App. 2015), as modified (Sep. 4, 2015).

Turning to the next claim, Merriweather argues he was denied counsel

during his arraignment, preliminary hearing, and the signing of the information.

Contrarily, the record clearly demonstrates Merriweather was represented by trial

counsel who was present at all appearances before the Trial Court except for one

on October 28, 2015, during which only the trial date was addressed. “It is well-

settled that a criminal defendant has a right to be represented by counsel that

extends beyond the actual trial to every critical stage of the proceedings.” Stone v.

Commonwealth, 217 S.W.3d 233, 237 (Ky. 2007). However, we cannot conclude

a court appearance during which only a matter of scheduling was discussed

qualifies as a critical stage under these circumstances. See id. at 238 (quoting Van

v. Jones, 475 F.3d 292, 313 (6th Cir. 2007)) (“‘In order to assess if a given portion

of a criminal proceeding is a critical stage, we must ask how likely it is that

significant consequences might have resulted from the absence of counsel at the

stage of the criminal proceeding . . . .’”). The record does not contain the

arraignment or preliminary hearing before the Christian District Court, and

“[w]hen the record is incomplete, this Court must assume that the omitted record

supports the trial court.” Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky.

2008). Regardless, Merriweather fails to provide specifics establishing how the

-8- arraignment or the preliminary hearing before either the district court or the Trial

Court amounted to a critical stage. See Parrish v. Commonwealth, 472 S.W.2d 69,

71 (Ky. 1971) (“Under our rules of criminal procedure, arraignment is not a critical

stage of the trial unless, of course, the accused enters a plea of guilty without

benefit of counsel.”); Walton v. Commonwealth, No. 2018-CA-000380-MR, 2020

WL 969583, at *7 (Ky. App. Feb. 28, 2020) (Holding that a probable cause hearing

is not a critical stage of a criminal proceeding if its purpose “remains limited with

little risk of substantial harm to the accused”).3 As to the information, the record

demonstrates it clearly contains the handwritten signatures of Merriweather and

trial counsel.

Regarding the third and final claim of the ineffective assistance of

counsel, Merriweather fails to demonstrate he is entitled to relief as set forth under

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d

674 (1984). To establish ineffective assistance of counsel under Strickland, “[t]he

defendant must show that 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 a probability sufficient to undermine confidence in the

outcome.” 466 U.S. at 694, 104 S. Ct. at 2068. Within the context of plea

agreements, “the defendant must show that there is a reasonable probability that,

3 Walton is cited pursuant to RAP 41(A) only as persuasive authority.

-9- but for counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed.

2d 203 (1985).

Merriweather argues his trial counsel did not disclose DNA evidence,

which Merriweather maintains had “not determined” he was “the factual

perpetrator” of the crimes charged. A DNA report attached as an exhibit to

Merriweather’s own underlying post-conviction motion states the tested DNA

sample taken from evidence of the crime concluded Merriweather was a

contributor, and “an estimated one person in 670 million random, unrelated

individuals could be a contributor to [the DNA sample] based on the relevant

United States populations.” Thus, even if Merriweather was unaware of this

evidence prior to the entry of his plea, it is not reasonably likely his knowledge of

such evidence would have motivated him to reject the plea. Indeed, it would have

likely further encouraged acceptance of the plea as the evidence was more

inculpatory than Merriweather contends.

CONCLUSION

For the foregoing reasons, we AFFIRM the Christian Circuit Court’s

Order denying Merriweather’s motion for post-conviction relief.

ALL CONCUR.

-10- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Ernest Merriweather, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky

Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

-11-