Michael T. Ford v. Commonwealth of Kentucky

RENDERED: MARCH 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1490-MR
MICHAEL T. FORD APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 00-CR-00075-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: Michael T. Ford, pro se, appeals from an order of the Laurel
Circuit Court denying his request to vacate his judgment of conviction and
sentence based on what he claims are an illegal plea agreement and sentence. We
affirm.
This matter has an extensive procedural history which was recently
summarized, in part, by this Court:
In 1999, Charles J. Deaton and Dorothy Raynard
were kidnapped in Deaton’s vehicle and murdered in
Laurel County. Ford and three other individuals were
indicted for the kidnappings and murders. Specifically,
Ford was indicted for two counts of complicity to
murder, two counts of complicity to kidnapping, one
count of theft by unlawful taking, abuse of a corpse, and
for being a first-degree persistent felony offender. The
Commonwealth gave notice of its election to proceed
with capital punishment. A plea agreement was reached
allowing Ford to avoid the death penalty.
On March 26, 2001, Ford appeared in court with
counsel and entered his guilty pleas to two counts of
complicity to murder and two counts of complicity to
kidnapping. He stated he understood he was waiving his
rights, including the right to trial, he understood the
possible penalties and the Commonwealth’s sentencing
recommendation and acknowledged the remaining counts
would be dismissed. Ford affirmed that he had obtained
his G.E.D., that he did not suffer from mental illness, that
his plea was voluntarily entered, and no one was forcing
him to enter his plea agreement. Ford was sentenced in
accordance with agreement on March 26, 2001.
In February 2003, Ford filed [a Kentucky Rules of
Criminal Procedure (RCr)] 11.42 motion seeking to
vacate the judgment against him alleging ineffective
assistance of counsel. While Ford raised a number of
claims, the central issue was whether he possessed the
requisite mental competency to enter a valid guilty plea.
The trial court held a limited hearing and, on October 31,
2003, the trial court denied Ford’s motions for relief on
all grounds.
On November 19, 2003, Ford filed a motion
“pursuant to [Kentucky Rules of Civil Procedure (CR)]
60.02(a) requesting that the court re-conduct its October
27, 2003 hearing” and appoint DPA counsel. On
December 15, 2003, an order was entered denying the
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motion. Ford filed a notice of appeal on January 13,
2014 stating he was appealing from an order denying his
RCr 11.42 motion entered on December 15, 2003.
This Court held that because the order denying
RCr 11.42 relief was entered on October 31, 2003, the
notice of appeal was untimely. Ford v. Commonwealth,
No. 2004-CA-000093-MR, 2005 WL 627149, at *2 (Ky.
App. Mar. 18, 2005) (unpublished). This Court further
held that even if Ford had properly appealed the
Kentucky Rules of Civil Procedure (CR) 60.02 motion,
he was not entitled to relief, reasoning as follows:
Finally, Ford would not be entitled to relief
even if we treated his pro se notice of appeal
as having been intended to apply to the order
denying CR 60.02(a) relief. Ford alleged in
his CR 60.02 motion that the trial court
should have granted his oral request to
appoint counsel to represent him during the
RCr 11.42 evidentiary hearing which
addressed his mental competency to enter a
guilty plea. However, RCr 11.42(5)
specifically provides that a trial court need
not appoint counsel to represent a movant in
an RCr 11.42 proceeding unless that movant
requests such an appointment by a “specific
written request.” Here, such a written
request was not made. Further, since Ford’s
trial counsel testified and produced evidence
to show that the psychological and
neuropsychological evaluation conducted
before Ford entered his guilty plea did not
support a psychological defense, there is
nothing to suggest that Ford was prejudiced
by the court’s failure to appoint counsel to
represent him during the RCr 11.42 hearing.
Thus, it is clear from the record that there
was no “mistake, inadvertence, surprise or
excusable neglect” which would entitle Ford
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to relief herein, and the trial court did not
abuse its discretion by denying his motion
for CR 60.02 relief.
Id. (footnotes omitted). The Supreme Court denied
discretionary review on May 11, 2005.
On October 29, 2018, Ford filed a motion to
withdraw his guilty plea pursuant to RCr 8.10. He also
requested assistance of counsel. In his motion, Ford
alleged that he was misinformed by his trial counsel that
he could be sentenced to death if he proceeded to trial.
The trial court denied the motion, and this appeal
followed.
Ford v. Commonwealth, No. 2019-CA-000108-MR, 2020 WL 1332972, at *1-2
(Ky. App. Mar. 20, 2020). This Court affirmed the circuit court’s decision.
On October 26, 2020, Ford filed a motion to vacate his sentence,
arguing that he could not have been sentenced to four consecutive sentences of life
without the possibility of parole (LWOP) based upon the application of Kentucky
Revised Statutes (KRS) 532.110(1)(c) and that because the plea agreement
circumvented this statute, it was void pursuant to contract law. The circuit court
denied the motion to vacate by order entered November 5, 2020, noting that Ford
failed to cite a rule that would permit it to consider the motion on the merits as the
original judgment had been entered more than 19 years previously and that he had
already unsuccessfully pursued post-conviction relief pursuant to RCr 11.42 and
CR 60.02. In addition, the circuit court recognized that Ford’s motion had no merit
in that it was based on an argument that he had been sentenced to four consecutive
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LWOP terms. The judgment did not state that the sentences were to be served
consecutively. This appeal now follows.
In his brief, Ford continues to argue that his four life sentences are
illegal under KRS 532.110(1)(c) and, as a result, he never could have agreed to the
sentences per the terms of his plea agreement. We find no merit in his assertions.
However, we disagree with the reasoning of the circuit court in
denying relief to Ford. We do agree that, had Ford’s motion been made pursuant
to RCr 11.42, it would have been impermissibly successive. See, e.g., Sanders v.
Commonwealth, 339 S.W.3d 427, 438 (Ky. 2011). While it is true that Ford did
not state an applicable rule of criminal or civil procedure in his motion to vacate
his conviction and sentence, the substance of his argument challenged what he
claimed was an illegal sentence. “The trial court has inherent authority to correct
an unlawful sentence, at any time.” Phon v. Commonwealth, 545 S.W.3d 284, 308
(Ky. 2018). However, Kentucky law is well-settled that “[i]f an appellate court is
aware of a reason to affirm the lower court’s decision, it must do so, even if on
different grounds.” Goetz v. Asset Acceptance, LLC, 513 S.W.3d 342, 345 (Ky.
App. 2016) (citation omitted).
The flaw in Ford’s argument is that his sentence is not unlawful. KRS
532.110 states:
(1) When multiple sentences of imprisonment are
imposed on a defendant for more than one (1) crime,
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including a crime for which a previous sentence of
probation or conditional discharge has been revoked, the
multiple sentences shall run concurrently or
consecutively as the court shall determine at the time of
sentence, except that:
....
(c) The aggregate of consecutive
indeterminate terms shall not exceed in
maximum length the longest extended term
which would be authorized by KRS 532.080
for the highest class of crime for which any
of the sentences is imposed. In no event
shall the aggregate of consecutive
indeterminate terms exceed seventy (70)
years[.]
(Emphasis added.)
In exchange for his guilty plea, the Commonwealth agreed not to
pursue the death penalty against Ford. Ford agreed to a sentence of LWOP on
each count. However, the plea agreement was silent as to whether the sentences
were to be served concurrently or consecutively. Accordingly, Ford’s argument
that he could not have agreed to an illegal sentence must fail. Similarly, the
judgment and sentence on a plea of guilty entered by the circuit court did not
specify whether the LWOP sentences were to run concurrently or consecutively.
Notably, Ford does not specifically argue that he received four
consecutive LWOP sentences. Rather, he vaguely asserts that this Court has twice
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interpreted the judgment as “an aggregate one consisting of four (4) LWOP
sentences[.]” KRS 532.110(2) states:
[i]f the court does not specify the manner in which a
sentence imposed by it is to run, the sentence shall run
concurrently with any other sentence which the defendant
must serve unless the sentence is required by subsection
(3) of this section or KRS 533.060 to run consecutively.
The statute is unambiguous. Because Ford’s judgment and sentence did not
specify the manner in which his four LWOP sentences should run, they are to run
concurrently. However, even if the circuit court had ordered the sentences to run
consecutively, the remedy is not to vacate the underlying conviction as Ford
demands, but to have the circuit court correct the sentence. See Phon, 545 S.W.3d
284 at 308-09.
For the foregoing reasons, the order of the Laurel Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael T. Ford, pro se Daniel J. Cameron
LaGrange, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
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