Nathan Rawal v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: December 15, 2022
• Docket: 2020 CA 000516
• Status: Unknown

Opinion

RENDERED: DECEMBER 16, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0516-MR

NATHAN RAWAL APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE ACTION NO. 16-CR-002735

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, COMBS, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Nathan Rawal appeals from an order of the Jefferson

Circuit Court denying his motion for relief pursuant to Kentucky Rules of Criminal

Procedure (RCr) 11.42. Rawal argues his prior guilty plea was involuntary

because he was suffering from an untreated mental illness when he entered the

plea. Rawal also argues his counsel was ineffective for not recognizing his

condition, not fully explaining his plea deal, and failing to investigate alleged prior abuse he suffered at the hands of his victim. The circuit court summarily denied

Rawal’s motion without conducting an evidentiary hearing. We affirm because the

record precludes relief.

On July 29, 2016, following a verbal altercation with his mother and a

subsequent argument with his uncle, Rawal fired a pistol at his uncle in proximity

to two children who were nearby playing. On October 11, 2016, Rawal was

indicted on three counts of wanton endangerment first degree pursuant to Kentucky

Revised Statutes (KRS) 508.060, a class D felony. While an indictment was also

sought for criminal attempted murder, a class B felony, based on Rawal trying to

murder his uncle, the grand jury declined to indict on this charge, resulting in a “no

true bill.” Until his eventual sentencing, Rawal remained in custody.

On December 21, 2016, the parties advised the circuit court that they

had reached a plea agreement. Rawal previously signed a motion to enter a guilty

plea and accepted the Commonwealth’s offer which specified that the

Commonwealth agreed to a “five (5) year sentence to serve, or a ten (10) year

sentence if probated” and did not oppose probation. The agreement further noted

“[t]he sentence on each count will run concurrently with each other if the

defendant is sentenced to serve, or Counts 1 and 2 shall run concurrently with each

other but consecutive to Count 3 if the defendant is probated.” Among the

conditions was that Rawal “shall not be charged with any criminal offense in any

-2- jurisdiction (State or Federal) from the date of this Indictment[,]” apparently to

prevent a superseding indictment from being sought to add an attempted murder

charge, which the grand jury had previously rejected.

The plea agreement was explained on the record as five years to serve

concurrently on each of the three wanton endangerment first degree charges, or, if

probated, a total of ten years to serve (Counts 1 and 2 each five years concurrent

with a five-year sentence on Count 3 to be served consecutively).

During his plea colloquy, Rawal coherently engaged with the circuit

court and the video record shows no indicia whatsoever of Rawal being affected by

any physical, emotional, or mental impairment. The circuit court carefully and

thoroughly explained to Rawal that he had a right to a trial, what such a trial would

be like, that Rawal could call witnesses, that the burden was on the prosecution,

and that, if he chose to go to trial, that he had a right to an appeal. The circuit court

also questioned Rawal if he’d had enough time to go over the evidence against him

with his counsel.

Most importantly for purposes of this appeal, the circuit court asked

Rawal if he had been “treated by a doctor for any reason physical or mental or

emotional.” Rawal answered in the negative.

At sentencing, Rawal’s counsel explained the incident with Rawal’s

uncle and stated that Rawal had been confronted and then chased by his uncle prior

-3- to retrieving the handgun he discharged at his uncle. The circuit court also noted

that it had received three pre-sentencing letters in support of a sentence of

probation. These letters did not report that Rawal had any psychological issues or

required any medication.

The circuit court advised Rawal that he was “bargaining for a double

sentence” under the terms of the agreement should he violate the conditions of

probation and Rawal specifically acknowledged his understanding. The circuit

court noted Rawal’s history of substance abuse issues and ordered him to undergo

a substance abuse and mental health evaluation. The circuit court then sentenced

Rawal to a total of ten years to serve, probated for five years.

Rawal’s probation was eventually terminated in August 2017 after a

series of violations earlier in the year, including a guilty plea for assault in the third

degree, a positive test for methamphetamine which he admitted to using, failing to

report, and then, when he did report, admitting to methamphetamine and marijuana

use. Rawal failed to appear at his first revocation hearing in June 2017 and a

bench warrant was issued. Rawal was subsequently arrested and charged with

possession of a controlled substance, first degree (methamphetamine). After it was

discovered he was taking drugs into the jail on his body, he was also charged with

tampering with physical evidence and promoting contraband.

-4- Prior to his rescheduled revocation hearing on August 4, 2017,

Rawal’s mother wrote another letter to the circuit court which explained that

“[e]very single time Nathan has gotten himself into trouble he was on meth.” The

circuit court revoked Rawal’s probation and sentenced him to ten-years’

incarceration pursuant to his prior plea agreement. The circuit court cited Rawal’s

continuous drug use, failure to complete treatment, felony arrest, and failures to

report as the bases for revocation.

In February 2018, Rawal filed a motion for shock probation which the

circuit court denied the following month. Rawal’s motion contained no allegations

of past or present mental health issues. Letters written in support of his motion

discussed his “drug addiction.”

In a subsequent letter to the circuit court dated March 13, 2018,

Rawal’s mother stated that, while in prison, Rawal “had been requesting

medication due to irritability and depression” and “[y]our Honor, we did not know

that he needed to be on medication and three at once seems severely strong, but

that’s what they prescribed him just prior to the altercation mentioned in the court

hearing.” That letter is the first and only mention in the record of Rawal having

any emotional or mental issues or being prescribed any medications for such.

Almost two years later, on February 20, 2020, Rawal filed his verified

RCr 11.42 motion. In his motion, Rawal asserted that prior to pleading guilty he

-5- had suffered from mental illness, including bipolar disorder with psychotic

features, and had been prescribed three different medications, none of which was

administered by jail staff while he awaited trial despite informing jail staff of his

needs and writing “several complaints.” According to Rawal, he was “suffering

from a full-blown and untreated bipolar disorder and anxiety at the time he was

offered a plea bargain” and thereby rendering his plea involuntary.

Rawal also claimed he received ineffective assistance of counsel,

arguing his attorney allowed the Commonwealth to “entice” Rawal with a plea

deal that he misunderstood in his “mentally fragile state” and did not investigate a

prior history of abuse perpetrated against Rawal by his victim.

On March 13, 2020, the circuit court, without conducting an

evidentiary hearing, denied the motion in a written opinion and order which

provides in relevant part:

On December 21, 2016, Defendant entered a plea of guilty to three counts of Wanton Endangerment I. The Commonwealth’s recommendation was five years to serve or ten if probated. The terms of the plea agreement were explained to Defendant by counsel. In his colloquy with the Court, Defendant said under oath that he was not being treated by a doctor for any physical or mental illness. He testified that there was nothing about his plea that he did not understand. On February 16, 2017 the matter came before the Court for sentencing. Once again, Defendant stated that he understood what was essentially a “double sentence.” He asked for probation and that was granted.

-6- Regarding Rawal’s allegation of mental illness, the circuit court also

stated that the issue of Rawal’s suffering any mental illness had not been raised

prior to sentencing and that Rawal did not present sufficient information to initiate

an inquiry on the issue of his “substantial capacity to comprehend the nature and

consequences of the proceeding pending against him,” citing to both

Commonwealth v. Strickland, 375 S.W.2d 701 (Ky. 1964) and Bell v.

Commonwealth, 395 S.W.2d 784 (Ky. 1965).

Our standard of review was set forth in Ford v. Commonwealth, 628

S.W.3d 147, 156 (Ky. 2021), which states that “[i]n reviewing an RCr 11.42

proceeding, the appellate court reviews the trial court’s factual findings for clear

error while reviewing the application of its legal standards and precedents de

novo.” Also, “[t]o prevail on an RCr 11.42 motion, the movant must convincingly

establish he was deprived of some substantial right justifying the extraordinary

relief afforded by the post-conviction proceeding.” Bratcher v. Commonwealth,

406 S.W.3d 865, 869 (Ky. App. 2012). The burden of proof for RCr 11.42

motions lies with the accused. Dorton v. Commonwealth, 433 S.W.2d 117, 118

(Ky. 1968).

Where, as here, an RCr 11.42 hearing is denied, appellate review is

limited to “whether the motion on its face states grounds that are not conclusively

-7- refuted by the record and which, if true, would invalidate the conviction.” Lewis v.

Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).

Rawal first argues that his plea was involuntary because he was

incompetent at the time because he was suffering from untreated mental illness.

As explained in Lear v. Commonwealth, 884 S.W.2d 657, 659 (Ky.

1994):

An incompetency hearing is only required when the trial judge is presented with sufficient evidence of reasonable doubt of competency to stand trial. Hunter v. Commonwealth, Ky., 869 S.W.2d 719 (1994). If no reasonable grounds exist for doubting a defendant's competency, no error occurred in not holding a hearing. Gilbert v. Commonwealth, Ky., 575 S.W.2d 455 (1978). Reasonable grounds must be called to the attention of the trial court or must be so obvious that the trial judge cannot fail to be aware of them. Henley v. Commonwealth, Ky., 621 S.W.2d 906 (1981).

See Gilbert v. Commonwealth, 575 S.W.2d 455, 456 (Ky. 1978) (explaining that if

there are no reasonable grounds to believe the defendant is incompetent, either by

these grounds being called to the attention of the court or being obvious, there is no

error in failing to hold a competency hearing).

No inquiry into Rawal’s competency occurred prior to Rawal’s guilty

plea, his sentencing, or any of the post-trial proceedings because Rawal never

alerted the circuit court, or his counsel, to any such issues. There was also no

outward indication that Rawal was suffering from such condition, much less that it

-8- was serious enough to merit a sua sponte inquiry into his competency, where

Rawal coherently and rationally engaged with the circuit court at all times.

Additionally, even now, despite alleging to have documentation of his

mental health conditions and documented complaints about the lack of mental

health care Rawal received while in jail awaiting his trial, no evidentiary proof of

such a status was provided to the circuit court. Rawal asks us to simply accept his

allegations of mental illness and his opinion that they were so severe that they rose

to the level of rendering him incompetent to enter his plea.

Rawal cannot be prejudiced if he was never entitled to a competency

hearing or if he would have been found competent had a competency hearing been

held. Even if we assume that Rawal had a mental illness or mental health issues

and did not receive appropriate care for them, there is no reason to believe that

they were sufficiently serious as to render him incompetent to enter a plea.

In Jones v. Commonwealth, 260 S.W.3d 355, 360 (Ky. App. 2008),

the Court of Appeals noted that a defendant’s unsworn statement during his

sentencing hearing that he suffered from anxiety and depression and wanted to

obtain medical treatment for these conditions was insufficient to raise any

reasonable doubt as to his competency, explaining that such a statement “failed to

show that he did not understand what was happening in the proceedings, nor did it

show that he was incompetent to stand trial. Furthermore, because [the defendant]

-9- swore during his plea colloquy that he had never suffered from a mental disease or

defect, the circuit court had no reason to doubt [his] competency.”

Additionally, even if there were any error in failing to evaluate Rawal,

it was an invited error as he specifically denied having any mental illness or being

under any treatment for such. Rawal’s denial precludes any potential relief as we

will not countenance revisiting the validity of his plea under such circumstances.

See Tackett v. Commonwealth, 445 S.W.3d 20, 28 (Ky. 2014) (discussing that

invited error precludes relief). Just as counsel cannot be ineffective for failing to

investigate a defense or potential witnesses where the defendant failed to share

pertinent information to alert counsel that such existed,1 a withdrawal from a plea

should not be available where the defendant at the time of his plea had knowledge

of his condition but withheld informing the circuit court, his counsel, or even his

mother about it, when the issue of his competency could properly be addressed.

Therefore, because Rawal’s proof is utterly lacking and he cannot establish

prejudice in any event, the circuit court acted appropriately in summarily

dismissing this claim.

1 See, e.g., Sheroan v. Commonwealth, No. 2007-CA-001656-MR, 2008 WL 2941175, at *2 (Ky. App. Aug. 1, 2008) (unpublished) (noting that the defendant was not entitled to RCr 11.42 relief for counsel’s failure to investigate because the defendant failed to inform counsel about the potential testimony of two witnesses and counsel, thus, “could not reasonably have been expected to know of any need to interview them”). We do not cite this case as authority but agree with its reasoning.

-10- We next address Rawal’s ineffective assistance of counsel claim. The

right to counsel in a criminal case is guaranteed by the Sixth Amendment to the

United States Constitution and Section Eleven of the Kentucky Constitution. As

the United States Supreme Court observed in Strickland v. Washington, 466 U.S.

668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984), the right to counsel is the

right to the “effective assistance of that counsel.” Our standard of review of a

motion alleging ineffective assistance of counsel is governed by rules set forth by

the Supreme Court in Strickland which prescribed a two-pronged test setting forth

the defendant’s burden of proof in these cases:

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 the defendant 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.

Id. at 687, 104 S.Ct. 2064. Both criteria must be met in order for the test to be

satisfied. In this matter, neither is met.

Furthermore, “[a] reviewing court, in determining whether counsel

was ineffective, must be highly deferential in scrutinizing counsel’s performance,

and the tendency and temptation to second guess should be avoided.” Russell v.

Commonwealth, 992 S.W.2d 871, 875 (Ky. App. 1999).

-11- In the context of a guilty plea, to establish prejudice the appellant

must demonstrate “a reasonable probability that, 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). Stated

another way, in Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176

L.Ed.2d 284 (2010), the United States Supreme Court stated that “to obtain relief

[on an ineffective assistance claim] a petitioner must convince the court that a

decision to reject the plea bargain would have been rational under the

circumstances.” See also Williams v. Commonwealth, 336 S.W.3d 42 (Ky. 2011).

Rawal argues that his counsel either failed to explain the terms of his

plea deal in such a way as Rawal understood that he could face a “double

sentence” if he violated probation, or that Rawal’s “untreated mental illness

prevented him from comprehending this provision.” Since we have already

determined that there is no basis for the belief that Rawal was not competent to

understand the proceedings, we will only address his claim that his counsel failed

to adequately explain the repercussions of his violating probation which would

result in ten-years’ incarceration and make sure he understood the same. However,

Rawal fails to make any allegation that he told counsel that he was having trouble

understanding the proposed agreement or there was any reason that his counsel

should have doubted his understanding.

-12- Rawal was bargaining for probation and achieved that end. Nothing

within the record supports the notion that the consequences of a probation violation

to Rawal were not explained or that he was otherwise unaware of those

consequences. To the contrary, the circuit court itself warned Rawal and ensured

that Rawal understood the possible sentences he was facing. Rawal’s cogent

answers to the circuit court’s questioning and failure to ask for any clarification

belie his argument that he did not understand the plea agreement or the

consequences should he be placed on probation and then violate it and be revoked.

Rawal argues his counsel was also ineffective for failing to investigate

the history of abuse he allegedly received from his uncle prior to the incident. To

Rawal, this translates into a failure of his counsel to investigate a potential avenue

of arguing that shooting at his uncle (who was in proximity to two children) was a

justifiable act of self-defense or potentially a ground of mitigation to be considered

at sentencing. Again, the record dispels such an assertion. At sentencing, Rawal’s

counsel spoke at length that Rawal saw his uncle as the family’s “enforcer” and did

so as a means of mitigating Rawal’s actions and securing probation for this client.

Counsel evinced a strong familiarity with all the underlying background facts of

the case and Rawal himself, under oath, stated he was satisfied with counsel’s

efforts and advice.

-13- Lastly, the ultimate question here is whether, had the alleged errors

not taken place, there would be a reasonable probability that Rawal would have

rejected the Commonwealth’s plea offer (which led to him being released on

probation), and taken his chances at trial. Rawal discusses the injustice that he

ended up having to serve a ten-year sentence instead of a five-year sentence, and

that he would have rejected the plea agreement and proceeded to trial had he

understood he might ultimately serve ten years or believed his attorney would

properly investigate his defense and advocate for him.

We observe that while Rawal was only indicted for three class D

felonies, the Commonwealth could have potentially sought a new superseding

indictment subjecting him to an attempted murder charge with a maximum of

twenty years. See Bishop v. Caudill, 87 S.W.3d 1, 3 (Ky. 2002) (explaining that

“[o]n the basis of additional inculpatory evidence, the grand jury can issue a

new, superseding indictment charging the defendant with additional offenses”).

While we will not speculate on the chances that the Commonwealth would be

successful in seeking to re-indict Rawal for attempted murder, through the plea

agreement Rawal gained the valuable concession that one would not be sought and

the most time he could serve would be ten years. Additionally, Rawal

acknowledged his action in shooting the gun, even if he may have tried to justify

himself, which made a potential acquittal had he gone to trial unlikely.

-14- Using Padilla’s language, would it have been a “rational” decision to

reject the plea deal under the circumstances? Rawal received a very favorable

outcome when he was released on probation. Although he appears to have buyer’s

remorse now, because he was ultimately unsuccessful on probation and had to

serve his sentence, he avoided the maximum sentence on his indicted charges and

facing an additional term had he ultimately been indicted and found guilty of

attempted murder. Considering all of this, we can say with confidence that it

would not have been a rational decision to reject this plea agreement.

Accordingly, we affirm the Jefferson Circuit Court’s denial of

Rawal’s motion for RCr 11.42 relief.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Michael L. Goodwin Daniel Cameron Louisville, Kentucky Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

-15-