Nathan Rawal v. Commonwealth of Kentucky ( 2022 )

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NOT TO BE PUBLISHED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-