William Boyer v. Commonwealth of Kentucky ( 2021 )

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NOT TO BE PUBLISHED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
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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
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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.
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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.
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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
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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
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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
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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 at757 (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.
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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
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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
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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.
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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.
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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
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