William Boyer v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: January 28, 2021
• Docket: 2019 CA 000331
• Status: Unknown

Opinion

RENDERED: JANUARY 29, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-0331-MR

WILLIAM BOYER APPELLANT

APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 11-CR-00328

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

COMBS, JUDGE: William Boyer, pro se, appeals from an order of the Warren

Circuit Court denying a motion to vacate his criminal conviction. Boyer contends

that his attorney failed to provide him with adequate legal assistance through the

pre-trial process. After our review of the record, the parties’ briefs, and the

applicable law, we affirm. William Boyer and Brooke Boyer divorced in 2008. On March 4,

2011, William did not show up for work. Instead, he went to Brooke’s home

where he overheard a telephone conversation. William returned to his home,

retrieved a bolt-action carbine rifle, hid it in a laundry basket, and re-entered

Brooke’s home. William confronted Brooke in the basement and asked her to give

their relationship another chance. She declined and began to climb the stairs.

William retrieved the rifle and fired. He reloaded and fired again; reloaded and

fired yet again. Brooke was struck by each bullet and fell dead. Outside Brooke’s

home, William left a telephone and a note to his seven-year-old daughter advising

her not to go inside the house but to call 911 instead. William retreated to his

home. After a standoff with police, he eventually surrendered. Once in custody,

William confessed that he had shot and killed Brooke in her home. He was

indicted for murder and first-degree burglary on April 27, 2011.

Thereafter, Boyer submitted to a psychiatric evaluation. The

psychiatric report indicated that Boyer was competent to stand trial and capable of

appreciating the criminality of his conduct when he shot and killed Brooke. The

trial court conducted a competency hearing on July 14, 2011. It concluded that

Boyer was competent to proceed.

Defense counsel retained Dr. Eric Drogin, a psychologist, to evaluate

Boyer further. On January 3, 2013, counsel filed notice of an intent to present

-2- expert evidence to show that Boyer was suffering from an extreme emotional

disturbance at the time of the shooting. Counsel expected that the evidence would

be introduced through the testimony of Dr. Drogin.

On March 20, 2012, following extensive negotiations with the

Commonwealth, Boyer appeared with counsel before the Warren Circuit Court.

He entered a plea of guilty to the murder charge. In exchange for the guilty plea,

the Commonwealth agreed to dismiss the first-degree burglary charge and

unrelated offenses contained in two other indictments. The Commonwealth agreed

to recommend to the court that Boyer be sentenced to serve life in prison but that

he be eligible for parole after twenty (20) years. The court’s judgment and

sentence were entered on April 30, 2013.

On May 4, 2016, Boyer filed a motion to vacate his conviction under

the provisions of RCr1 11.42. Boyer alleged that trial counsel was ineffective by:

failing to investigate the defense of extreme emotional disturbance; failing to

obtain a written report from Dr. Drogin; failing to advise him properly as to the

defense’s likelihood of success; failing to follow-up with a firearms expert to show

that the rifle he used to kill Brooke could have misfired; failing to pursue

suppression of his confession to police; and guaranteeing him that he would be

paroled in twenty (20) years.

1 Kentucky Rules of Criminal Procedure.

-3- On September 14, 2017, Boyer’s appointed counsel filed a motion

requesting an evidentiary hearing. The trial court granted the motion and set the

matter for hearing to be conducted on June 5, 2018. Boyer and his former counsel,

Attorney Lowe and Attorney Downs, testified at the hearing. The circuit court

ordered the parties to submit post-hearing briefs.

After considering the evidence and the extensive arguments of

counsel, the trial court denied Boyer’s motion for post-conviction relief in a

comprehensive order entered February 13, 2019. Boyer was permitted to proceed

on appeal in forma pauperis. On February 27, 2019, the circuit court appointed

appellate counsel to represent him.

On June 27, 2019, the Department of Public Advocacy filed an

Anders2 motion with this Court to withdraw as Boyer’s counsel. In the motion,

counsel indicated that the post-conviction proceeding was not one “that a

reasonable person with adequate means would be willing to bring at his own

expense.” Boyer did not respond to the motion. By order entered August 6, 2019,

we granted counsel’s motion to withdraw and ordered that Boyer submit a brief,

pro se, within sixty (60) days.

2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.E.d.2d 493 (1967), provided a procedural framework for safeguarding the constitutional rights of an indigent criminal defendant when appointed counsel determined that there were no legitimate grounds for appeal.

-4- On appeal, Boyer contends that the circuit court erred by denying his

motion for post-conviction relief. The Commonwealth disagrees on each

substantive ground presented. It also argues that Boyer failed to file a timely

motion for post-conviction relief. We agree that Boyer’s motion for relief was

untimely.

The provisions of RCr 11.42(10) contain a three-year time limitation:

Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:

(a) that 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; or

(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

. . . If the motion qualifies under one of the foregoing exceptions to the three-year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth’s opportunity to present relevant evidence to contradict or impeach the movant’s evidence.

Untimeliness under the rule operates as a procedural bar to the motion. Moorman

v. Commonwealth, 484 S.W.3d 751, 757 (Ky. App. 2016). The circuit court’s

-5- order denying Boyer’s motion for post-conviction relief can be affirmed upon this

basis alone.

In Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005),

overruled by Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011), the Supreme

Court of Kentucky considered whether an inmate’s untimely filing of an RCr 11.42

motion due to a delay in mailing by prison officials could be deemed timely

through adoption of the prison mail box rule or the doctrine of equitable tolling.

The court rejected the prison mail box rule in favor of equitable tolling, a doctrine

that provides that an express limitations period will not bar an untimely claim if,

despite the claimant’s diligent efforts, extraordinary circumstances prevented a

timely filing.

In 2011, RCr 12.04 was amended to adopt the prison mail box rule.

RCr 12.04(5) now provides that a “notice [of appeal] shall be considered filed if its

envelope is officially marked as having been deposited in the institution’s internal

mail system on or before the last day for filing with sufficient First Class postage

prepaid.”

In Hallum, the Supreme Court of Kentucky considered the effect of

RCr 12.04(5) with respect to an inmate’s notice of appeal. The court determined

that RCr 12.04(5) should be applied retroactively and addressed the continued

applicability of the equitable tolling doctrine. The court concluded that the

-6- equitable tolling doctrine was now “duplicative and superfluous, with its utility

marginalized.” Hallum, 347 S.W.3d at 59. It observed that the “prison mail box

rule was crafted to remedy the procedural deficiency our rules posed to pro se

inmates seeking to appeal; thus, there is no longer a need for Robertson’s equitable

tolling provision.” Id.

Nevertheless, in Roach v. Commonwealth, 384 S.W.3d 131 (Ky.

2012), the Supreme Court of Kentucky again discussed the application of equitable

tolling in relation to inmate actions -- this time in relation to an inmate’s RCr 11.42

motion. The Court declined to hold that a belated amendment to an inmate’s

timely filed RCr 11.42 motion could be saved by the doctrine of equitable tolling.

The inmate had not presented the issue to either the trial court or to this Court on

appeal. Consequently, the Supreme Court concluded that it need not decide

whether equitable tolling could ever apply to an untimely RCr 11.42 motion.

However, it observed that even if the doctrine of equitable tolling could apply to

such proceedings, the doctrine would not apply to the facts before it because the

inmate could not show both that he had been pursuing his rights diligently and that

some extraordinary circumstance stood in his way and prevented a timely filing.

Thereafter, in Moorman, this Court observed that the Supreme Court

of Kentucky had not given a definitive answer as to whether the doctrine applies in

the context of RCr 11.42 motions. Nevertheless, relying upon precedent of the

-7- Supreme Court of the United States, we held that in order to invoke equitable

tolling, an inmate must establish that he had been pursuing his rights diligently and

that some extraordinary circumstance stood in his way. Moorman, 484 S.W.3d at

757 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814, 161

L.Ed.2d 669 (2005)). In that case, we concluded that the inmate failed to carry her

burden to establish these factors and that equitable tolling did not apply to save the

claims asserted in an untimely supplement to her RCr 11.42 motion.

Boyer began to pursue post-conviction relief shortly after his

conviction in April 2013. In December 2013, he indicated to the circuit clerk that

he believed counsel had failed to provide him with adequate assistance, and he

requested a copy of the record compiled in his case so that he could finish

preparing his RCr 11.42 petition. Nearly two years later, Boyer began filing a

series of motions requesting the Warren Circuit Court to order that he be provided

certified copies of records, many of which were not in the court’s possession. In

an order entered November 25, 2015, the court directed the Warren Circuit Clerk

to provide to Boyer the documents in its possession. Boyer’s petition for relief was

eventually filed on May 4, 2016.

Because Boyer waived his right to appeal when he entered a guilty

plea, the court’s judgment of conviction and sentence became final when it was

entered on April 30, 2013. See Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App.

-8- 1999). Boyer’s petition for post-conviction relief was not filed within the three-

year period provided for by RCr 11.42. Accordingly, the petition was untimely

unless the circumstances warranted application of the equitable tolling doctrine.

The record before us, as summarized above, does not indicate that Boyer diligently

pursued his rights. All the facts upon which his claim is predicated were known to

him; he even personally corresponded with Dr. Drogin. Nothing prevented Boyer

from filing a timely claim. Consequently, the doctrine of equitable tolling is

inapplicable. His petition for relief was untimely.

Even if Boyer’s petition were not procedurally barred by its

untimeliness, we would affirm the order of the Warren Circuit Court denying his

request for relief. Boyer’s allegations of ineffective assistance of counsel are

evaluated under the standard promulgated by the Supreme Court of the United

States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), as modified by Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985), where the defendant pleaded guilty rather than going to trial.

Where a movant has pled guilty, he must later demonstrate on appeal

that: (1) defense counsel’s performance fell outside the wide range of

professionally competent assistance; and (2) a reasonable probability exists that,

but for the deficient performance of counsel, the movant would not have pled

-9- guilty -- but would have insisted on going to trial. Commonwealth v. Rank, 494

S.W.3d 476 (Ky. 2016).

Courts considering a collateral attack on a judgment of conviction

must presume that counsel’s performance was reasonable. Commonwealth v.

McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citing Commonwealth v. Bussell,

226 S.W.3d 96, 103 (Ky. 2007)). We must

consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel[.]

Rank, 494 S.W.3d at 481 (quoting Bronk v. Commonwealth, 58 S.W.3d 482, 486

(Ky. 2001)). The circuit court’s factual findings are reviewed only for clear error;

the application of legal standards is reviewed de novo. Commonwealth v.

Thompson, 548 S.W.3d 881, 887 (Ky. 2018).

Boyer contends that the circuit court erred by concluding that counsel

provided adequate legal assistance because he fully investigated an extreme

emotional disturbance defense and advised Boyer of Dr. Drogin’s opinion and

potential testimony regarding the defense. We disagree.

The circuit court was persuaded by counsel’s testimony indicating that

he consulted with Dr. Drogin regarding his opinion that Boyer had acted under

extreme emotional disturbance. The court found that counsel shared this

-10- information with Boyer and that counsel was not required under the circumstances

to request that Dr. Drogin generate a written report. The circuit court noted that

there was countervailing evidence indicating that Boyer had not acted under

extreme emotional disturbance and that there was no assurance that a jury would

be persuaded by Drogin’s anticipated testimony given the circumstances. The

court accepted counsel’s assessment of the risks of trial and the benefit of pleading

guilty. It is not ineffective assistance of counsel for an attorney, after investigating

the case, to advise his client to plead guilty in anticipation of a lighter sentence.

Osborne v. Commonwealth, 992 S.W.2d 860 (Ky. App. 1998). The circuit court’s

factual findings were supported by substantial evidence. There was no error.

Next, Boyer contends that the circuit court erred by failing to

conclude that he was deprived of adequate legal assistance because counsel did not

file a motion to suppress Boyer’s confession and did not consult with a ballistics

expert. Again, we disagree.

With respect to the ballistics expert, the circuit court accepted

counsel’s testimony indicating that he had retained and consulted with John Nixon,

a forensic firearms and ballistics expert. Nixon’s expert opinion foreclosed a

defense that Boyer had accidentally discharged the rifle. The circuit court’s

findings were supported by substantial evidence. There was no error.

-11- With respect to counsel’s decision not to pursue suppression of

Boyer’s confession, the circuit court found that counsel had considered filing a

motion to suppress but concluded that there was no legal basis upon which to

challenge the voluntariness of Boyer’s statement to police. It found that Boyer

failed to provide a sufficient basis upon which to question the admissibility of this

statement to police. The circuit court also found: that Boyer was properly advised

about his constitutional rights; that he understood them; and that the police

interview was not unfairly coercive. Finally, the circuit court found that if the

confession had been subject to suppression, there is no basis upon which to

conclude that Boyer was unfairly prejudiced by a failure to file the motion because

other evidence of his guilt was overwhelming. The circuit court was not persuaded

that Boyer would have insisted on going to trial in light of the compelling evidence

against him. The circuit court’s factual findings were supported by substantial

evidence. There was no error.

In summary, Boyer did not file a timely motion for relief. But even if

the motion had been timely, he failed to show that counsel’s performance was

deficient. Consequently, the circuit court did not err by denying the post-

conviction motion for RCr 11.42 relief.

We AFFIRM the order of the Warren Circuit Court.

-12- ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

William Boyer, Pro Se Daniel Cameron Lagrange, Kentucky Attorney General of Kentucky

James Havey Assistant Attorney General Frankfort, Kentucky

-13-