Stephen Schomaker v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 17, 2022
• Docket: 2020 CA 001591
• Status: Unknown

Opinion

RENDERED: NOVEMBER 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1591-MR

STEPHEN SCHOMAKER APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 16-CR-00083

COMMONWEALTH OF KENTUCKY APPELLEE

AND

NO. 2021-CA-1451-MR

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 16-CR-00083

COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Stephen Schomaker (“Appellant”) appeals from an

order of the Campbell Circuit Court denying his motion for Kentucky Rules of

Criminal Procedure (“RCr”) 11.42 relief from judgment, and from a subsequent

amended motion for RCr 11.42 relief. Appellant argues that the circuit court erred

in failing to conclude that no factual basis exists to support his guilty plea, and that

he did not receive effective assistance of counsel. As to the denial of his amended

motion, Appellant contends that he was entitled to relief based on newly

discovered evidence. He seeks an opinion reversing the orders on appeal, and

remanding the matter for further proceedings. After careful review, we find no

error and affirm the orders of the Campbell Circuit Court.

FACTS AND PROCEDURAL HISTORY

In 2017, Appellant entered a plea of guilty in Campbell Circuit Court

to 18 counts of sexual offenses involving a minor.1 The circuit court accepted the

plea, and sentenced him to 27 years in prison. The court denied his post-

1 Appellant pled guilty to two counts of rape in the first degree (Kentucky Revised Statutes (“KRS”) 510.040(1)), ten counts of promoting a sexual performance by a minor (KRS 531.320), and six counts of sexual abuse in the first degree (KRS 510.110). The victim is the half-sister of Appellant’s biological children.

-2- conviction motion to modify a condition of his sentence, and the denial was

affirmed on appeal to this Court in Schomaker v. Commonwealth, No. 2019-CA-

0962-MR, 2021 WL 1431858 (Ky. App. Apr. 16, 2021). Appellant did not

prosecute a direct appeal of his conviction, as he waived such an appeal under the

terms of the plea agreement.

On July 21, 2020, Appellant filed a motion to vacate his conviction

pursuant to RCr 11.42 (hereinafter “original motion”).2 In support of the motion,

Appellant argued that, 1) the circuit court failed to properly investigate whether

there was a factual basis for the charges; 2) counsel was ineffective in failing to

discuss or have Appellant acknowledge that statements he made during his sex

offender evaluation were untrue; and, 3) Appellant did not believe there was

sufficient evidence to support the rape charges. He also argued that he mistakenly

believed that he would not be eligible for parole if he received a life sentence. The

motion was denied on November 19, 2020, and Appellant filed an appeal with this

Court in No. 2020-CA-1591-MR.

On December 30, 2020, and during the pendency of that appeal,

Appellant filed an amended RCr 11.42 motion (hereinafter “amended motion”),

2 Appellant was represented by new trial counsel.

-3- which he asserted related back to the time of filing of the original motion.3 As a

basis for the amended motion, Appellant stated that he had recently become aware

of testimony made by the victim, C.D.,4 in a civil deposition conducted on July 10,

2020. Specifically, Appellant pointed to statements made during C.D.’s civil

deposition where she responded, “I’m not sure” and “yeah, I don’t remember”

when asked if Appellant placed his fingers or penis in her vagina. Appellant

argued that C.D.’s vague responses bolstered his contention that the facts were not

sufficient to support his guilty plea and that his trial counsel was ineffective in

failing to so argue.

After considering the amended motion, the Campbell Circuit Court

determined that it was not timely filed and did not relate back to the filing of the

original motion for purposes of the filing deadline set out in RCr 11.42(10).

Appellant appealed from that denial in No. 2021-CA-1451-MR. Thus, Appellant

was prosecuting two appeals simultaneously – the appeal from the denial of his

original motion for RCr 11.42 relief, and the appeal from the denial of his amended

motion for RCr 11.42 relief.

3 The original motion was made just before the expiration of the three-year window for filing such a motion per RCr 11.42(10). 4 The victim was a minor at the time of the offenses and Appellant was charged with sex offenses; therefore, we will only use the victim’s initials.

-4- On June 22, 2022, the Commonwealth of Kentucky (“Appellee”)

moved to consolidate the two appeals. The motion was denied by order of this

Court on July 11, 2022. The appeals involve the same parties, facts, judgment, and

counsel, and each addresses the denial of a motion for RCr 11.42 relief.

Accordingly, and in the interest of judicial economy, we will adjudicate both

appeals in this Opinion.

ARGUMENTS AND ANALYSIS

Appellant, through counsel, challenges his guilty plea and alleges

ineffective assistance of counsel. He first argues that his guilty plea was not valid

because the circuit court did not inquire into the specific acts that Appellant

committed to confirm that the acts supported the guilty plea. Specifically, he

contends that the evidence was not sufficient to sustain the charge of rape in the

first degree. He claims that the circuit court erred in failing to establish a sufficient

factual basis for the plea during the plea colloquy and that this error requires

reversal of the order denying his original motion for RCr 11.42 relief.

“A defendant who elects to unconditionally plead guilty admits the

factual accuracy of the various elements of the offenses with which he is

charged.” Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986). The

exception to this maxim is where the plea was coerced or not intelligently made.

“[A] counseled plea of guilty is an admission of factual guilt so reliable that, where

-5- voluntary and intelligent, it quite validly removes the issue of factual guilt from the

case.” Menna v. New York, 423 U.S. 61, 62 n.2, 96 S. Ct. 241, 242, 46 L. Ed. 2d

195 (1975). The question for our consideration, then, is whether Appellant’s guilty

plea was voluntary and intelligent. If so, the plea admits the underlying facts in

support of the charges.

The record demonstrates that the Campbell Circuit Court engaged in a

full plea colloquy with Appellant prior to accepting his guilty plea. The court

discussed each charge with Appellant, including the corresponding count of the

indictment, and asked whether Appellant was admitting guilt to each charge.

Appellant, in the presence of counsel, responded affirmatively to each question.

Appellant told the court that he graduated from high school, attended trade school,

and worked as a master electrician. He stated that he had no mental health issues

and was not under the influence of drugs or alcohol.

When asked, Appellant stated that he was satisfied with counsel’s

advice, that he had no questions or concerns, and there was nothing else he wished

for counsel to do prior to entering the plea. The court then advised Appellant of

the rights he would be waiving by entering a guilty plea. The court informed

Appellant that he would be required to attend sex offender treatment, and register

as a sex offender. Appellant again stated that he understood his rights, that he was

-6- satisfied with counsel’s advice, that he wished to plead guilty, and that he did so

freely, intelligently, and voluntarily. The court then accepted the guilty plea.

We conclude from the record that Appellant’s plea was made

voluntarily and intelligently. Per Taylor and Menna, supra, such a plea admits the

factual accuracy of the various elements of the offenses with which he is charged.

As such, we are not persuaded by his contention that the evidence was insufficient

to sustain the charges.

Appellant also argues that he did not receive the effective assistance

of counsel to which he was entitled. He claims that his counsel was ineffective in

failing to discuss or have him acknowledge that statements he made during his sex

offender assessment were not true. He also argues that counsel was ineffective in

advising him to plead guilty, as the evidence did not support the plea. Finally,

Appellant argues that counsel improperly failed to inform him that he would be

eligible for parole on a life sentence. Appellant contends that he was not aware

that he could be paroled on a life sentence, and that had he known so, he would not

have entered a guilty plea.

To prevail on a claim of ineffective assistance of counsel, Appellant

must show two things:

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

-7- 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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d

674 (1984). “[T]he proper standard for attorney performance is that of reasonably

effective assistance.” Id.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Id. at 691-92, 104 S. Ct. at 2066-67 (citations omitted). “It is not enough for the

defendant to show that the errors had some conceivable effect on the outcome of

the proceeding.” Id. at 693, 104 S. Ct. at 2067. “The 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.” Id. at 694, 104 S.

Ct. at 2068.

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or

-8- adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. at 689, 104 S. Ct. at 2065 (citations omitted). “Appellant is not guaranteed

errorless counsel or counsel that can be judged ineffective only by hindsight, but

rather counsel rendering reasonably effective assistance at the time of trial.”

Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citations omitted).

At the trial court level, “[t]he burden is upon the accused to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by . . . RCr 11.42.” On appeal, the reviewing court looks de novo at counsel’s performance and any potential deficiency caused by counsel’s performance.

And even though, both parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact, the reviewing court must defer to the determination of facts and credibility made by the trial court. Ultimately however, if the findings of the

-9- trial judge are clearly erroneous, the reviewing court may set aside those fact determinations. . . . CR 52.01 (“[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witness.”) The test for a clearly erroneous determination is whether that determination is supported by substantial evidence. This does not mean the finding must include undisputed evidence, but both parties must present adequate evidence to support their position.

Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citations omitted).

At the sentencing hearing, the circuit court noted that it had examined

the sex offender evaluation, wherein Appellant denied that he took photographs of

C.D. and touched her with his penis. In response to its reading of the report, the

court asked counsel if Appellant wished to continue with his guilty plea. Counsel

responded that he had just spoken to Appellant and Appellant wished to enter a

guilty plea. In considering Appellant’s original RCr 11.42 motion, the court

reviewed the record and found that Appellant nodded his head in agreement as

counsel made that statement to the court, indicating that what counsel said was

true. Per Strickland, we find no basis for concluding that counsel provided

ineffective assistance regarding the sex offender evaluation, nor that Appellant was

prejudiced by counsel’s handling of the evaluation or his responses to the court.

Appellant goes on to argue that counsel was ineffective in advising

him to plead guilty, as the evidence did not support the plea. Having determined

that Appellant’s guilty plea admitted the factual accuracy of the various elements

-10- of the offenses with which he was charged, we do not conclude that counsel

provided ineffective assistance on this issue. The record reasonably supports

Appellant’s guilty plea.

Lastly, Appellant argues that when counsel correctly advised him that

he could receive a life sentence if he went to trial, Appellant incorrectly believed

that such a sentence would result in no parole eligibility. He argues that he would

not have entered a guilty plea if he knew that a life sentence offered the possibility

of parole. Appellant, however, makes no claim that counsel improperly advised

him that he would not be eligible for parole. He does not claim, much less

demonstrate, that counsel’s performance was ineffective on this issue, nor that

there is a substantial likelihood that the outcome of the proceeding would have

been different but for the ineffective assistance. We find no error on this issue.

We next consider Appellant’s appeal in No. 2021-CA-1451-MR from

the denial of his amended RCr 11.42 motion. Appellant argues that new facts

came to light after his conviction in a separate civil proceeding and that the filing

of the amended RCr 11.42 motion relates back to the filing of the original RCr

11.42 motion for purposes of compliance with the RCr 11.42(10) three-year

limitation period after judgment when such motions may be filed. Appellant

contends that these new facts, specifically statements made by C.D. that she was

not sure if Appellant placed his fingers or penis in her vagina, require vacating and

-11- setting aside his conviction, or in the alternative, conducting a hearing on the

amended RCr 11.42 motion.

In disposing of Appellant’s amended RCr 11.42 motion, the circuit

court found that in order for a subsequent RCr 11.42 motion to relate back to a

prior RCr 11.42 motion for the purpose of complying with the three-year filing

window, the subsequent motion must assert a claim or defense arising out of the

same conduct or occurrence set forth in the original RCr 11.42 motion. The circuit

court noted that C.D.’s deposition testimony in the civil proceeding was made in

2020, whereas Appellant’s trial counsel was involved in the underlying criminal

proceeding in 2017. The court found that counsel could not possibly be ineffective

in actions taken in 2017 as a result of statements C.D. did not make until 2020. It

was on this basis that the court found that the amended RCr 11.42 motion did not

relate back to the filing of the original RCr 11.42 motion, and was therefore filed

well past the closing of the three-year window set out in RCr 11.42(10).

Pleadings may be amended once as a matter of course, at any time

before a responsive pleading is filed. CR 15.01. Amended pleadings proffered

after a period of limitation has run relate back to the timely filing of the original

motion only where “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).

-12- In the original motion, Appellant alleged that counsel was ineffective

in 2017 in advising him to enter a guilty plea. In the amended motion, Appellant

asked the circuit court to consider C.D.’s deposition testimony given in 2020.

Appellant has not argued that counsel failed to properly review the discovery in his

criminal proceeding, nor that counsel failed to interview C.D. in 2017. We agree

with the circuit court that there are no circumstances under which counsel could

have been ineffective in 2017 as a result of statements C.D. did not make until

2020. The claims made in the amended motion did not arise from the conduct,

transaction, or occurrence asserted in the original motion. CR 15.03(1). As such,

the amended motion does not relate back to the original motion, and the Campbell

Circuit Court properly so found.

Additionally, C.D.’s deposition in the civil matter was conducted on

July 10, 2020 – some 10 days before the filing of Appellant’s original motion for

RCr 11.42 relief. At her deposition, C.D. was cross-examined by Appellant’s

counsel.5 Appellant’s mother was also present at the deposition. An untimely

filing of an RCr 11.42 motion can be excused only if the facts underlying the claim

were unknown to the movant and “could not have been ascertained by the exercise

5 Appellant’s counsel in the civil proceeding did not represent Appellant in the criminal proceeding.

-13- of due diligence[.]” RCr 11.42(10). Appellant provides no reason why this

information could not have been included in the original motion.

Arguendo, even if the amended motion related back to the timely

filing of the original motion, “[n]ewly discovered evidence is not a ground for

relief under RCr 11.42[.]” Perkins v. Commonwealth, 382 S.W.2d 393, 394 (Ky.

1964). Further, no hearing on this issue is required, as the motion can be resolved

by reference to the record. Jackson v. Commonwealth, 567 S.W.3d 615, 619 (Ky.

App. 2019).

CONCLUSION

Appellant’s guilty plea was voluntarily and intelligently given. As

such, the plea constitutes an admission of the facts supporting the charges. Taylor,

supra. Per Strickland, we find no basis for concluding that counsel provided

ineffective assistance regarding the sex offender evaluation, the advice to plead

guilty, nor counsel’s statement to Appellant that he could receive a life sentence if

the matter proceeded to trial. As such, we find no error in the Campbell Circuit

Court’s disposition of Appellant’s original motion. As to Appellant’s amended

motion, the circuit court properly determined that it did not relate back to the filing

of the original motion and was untimely. Even if it were timely, newly discovered

evidence is not a ground for relief under RCr 11.42. For these reasons, we affirm

-14- the orders of the Campbell Circuit Court denying Appellant’s motions for RCr

11.42 relief.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEFS FOR APPELLEE:

Harry P. Hellings, Jr. Daniel Cameron Covington, Kentucky Attorney General of Kentucky

Mark D. Barry Assistant Attorney General Frankfort, Kentucky

-15-