Eric Boyd v. Commonwealth of Kentucky

RENDERED: JANUARY 15, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2019-CA-1025-MR

ERIC BOYD APPELLANT

APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 08-CR-00334

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Eric Boyd, pro se, appeals the Bullitt Circuit Court’s

order denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to relieve

him of his conviction and sentence.

Boyd and his ex-girlfriend J.W. (the victim) had a son together. Boyd

apparently had trouble recognizing that the relationship was over and was unhappy
that the victim did not want him to visit with his son. The victim sought an

emergency protective order against Boyd after he threatened her with a knife. A

few days later the incident occurred which resulted in the convictions at issue here:

Boyd, angry that J.W. had denied him a weekend
with his son, drove to J.W.’s house to see his son. He
parked his tractor-trailer truck at the beginning of J.W.’s
neighborhood, nearly two miles from her home. He then
walked to her house, and after observing her and their
son in the front yard, entered the home through the
unlocked back door. He waited for J.W. in the kitchen
with a knife. Boyd threatened harm to himself and their
son if J.W. did not comply with his orders. He then
instructed J.W. to remove her clothing and have sex with
him. She told him that she would do whatever he asked,
so long as he did not harm their son, and the two engaged
in intercourse. Once Boyd fell asleep, J.W. was able to
get her cell phone and alert several family members that
Boyd was in her home and to call the police. Once the
police arrived, J.W. exited the house with her son, and
Boyd was arrested.

Boyd initially had private counsel, and was out of
custody on bond. While he was represented by private
counsel, the Commonwealth offered Boyd a plea of two
to ten years in prison with visitation rights with his son.
Boyd rejected this deal because he wanted to go to trial.
After a disagreement with that private counsel, Boyd
requested and was granted a public defender. After a
change in bond, he was then taken back into custody.

In September 2008, a Bullitt County Grand Jury
indicted Boyd on [burglary in the first degree, rape in the
first degree, sodomy in the first degree, kidnapping,
possession of drug paraphernalia, and being a persistent
felony offender in the second degree (PFO-2)].

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Boyd v. Commonwealth, No. 2014-CA-001374-MR, 2016 WL 2638248, *1

(Ky.App. May 6, 2016) (unpublished).

While awaiting trial, Boyd had electronic contact with the victim. He

believed that some exchanges he had with the victim provided him with the

defense of consent. These included exchanges on MySpace.com and Yahoo!

Messenger. In a MySpace.com exchange dated December 28, 2008, the victim

allegedly wrote: “i told them that i did consent to it . . . i did tell you i would do it

but they said based on how everything happened that it was considered rape and all

that other stuff.” Boyd provided printouts of this material to his private counsel,

who disclosed them to the Commonwealth, and his counsel also attempted to get

verification from these companies to connect these exchanges to the victim.

In April 2009, the circuit court granted Boyd’s private counsel’s

motion to withdraw, and Boyd was assigned counsel. Trial was continued on the

Commonwealth’s motion, and a trial date was set for February 2010.

In October 2009, the Commonwealth requested an order precluding

Boyd from entering the MySpace.com printouts into evidence at trial. This motion

was denied, with the circuit court stating that if Boyd wished to enter them at trial,

he would first need to request a hearing to determine whether they could be

introduced which would require a proper foundation.

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 In January 2010, Boyd filed a motion to schedule the deposition of the

victim, explaining he wished to have her state whether she had written the

electronic communication that stated she consented. The circuit court denied this

motion on the basis that pursuant to Kentucky Rules of Criminal Procedure (RCr)

7.10 there was no basis for deposing the victim because there was no evidence that

she would not be available for trial, at which time she could be asked about the

exculpatory statements.

The Commonwealth filed a motion in limine attempting to exclude the

MySpace.com messages and the Yahoo! Messenger messages, alleging that some

parts of the messages may be fabrications. Boyd requested a motion to continue to

attempt to secure information to verify it was the victim’s MySpace.com account.

In February 2010, the circuit court granted the motion to continue the trial and set a

new trial date for April 22, 2010.

It appears that in February 2010, Boyd was assigned new court-

appointed counsel. Counsel advised Boyd that since she had only had his case for

a short time, she would need to ask for and would likely be granted a continuance.

She further told Boyd she would be taking maternity leave soon and would either

have to try his case after she returned or have his case assigned to another public

defender. Boyd, 2016 WL 2638248, at *1. However, in the interim, she continued

to file motions in Boyd’s case.

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 In April 2010, Boyd requested the opportunity to introduce evidence

of the victim’s past sexual behavior pursuant to Kentucky Rules of Evidence

(KRE) 412(b)(1)(A) and, after a hearing, the matter was taken under advisement

by the circuit court.

On April 21, 2010, Boyd entered into a plea agreement and pled guilty

in circuit court. In exchange for the plea, the Commonwealth recommended

twenty years on the felonies, the dismissal of the other counts, and that the

sentences be served concurrently for twenty years. As part of the written guilty

plea, Boyd acknowledged the following factual basis:

The defendant entered the home of [the victim] without
her permission or consent. The defendant kept [the
victim] in that home throughout the night of July 22nd
and 23 of 2008. During that time the defendant forced
[the victim] to engage in both deviate sexual intercourse
and sexual intercourse.

Despite Boyd’s plea, the circuit court subsequently ruled on pending

motions. It ruled Boyd was permitted to show he had a continuing relationship and

sexual contact with the victim, and the Commonwealth was permitted to introduce

evidence regarding the domestic violence case pursuant to KRE 404(b) and (c). As

to an apparent previous oral motion that count four for kidnapping be dismissed,

the circuit court memorialized its decision to pass this motion to the morning of

trial for further argument by the parties and a motion for directed verdict.

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 On July 13, 2010, Boyd was sentenced in accordance with the plea

agreement.

Three years later, on July 12, 2013, Boyd filed an RCr 11.42 motion

arguing that he received ineffective assistance of counsel, explaining she failed to

investigate the false allegations against him and to advise him of a viable defense

(consent as shown by the messages from the victim), she failed to advise him of

the probable outcome if he went to trial, and there was cumulative error. He

attached the MySpace.com printout to his motion. Boyd was appointed counsel

and provided with an evidentiary hearing. Boyd’s former counsel testified as well

as Boyd. She testified that she was working hard on his case, accurately advised

him of what she would have to do given her recent assignment to the case and

pregnancy, and was surprised that he chose to plead guilty.

The circuit court denied the motion. Boyd appealed. The Court of

Appeals affirmed, reasoning that appropriate steps were taken regarding the

MySpace.com messages through his prior counsel’s attempts to authenticate these

messages and the attempt to subpoena the victim to authenticate them, and his

counsel’s plan to obtain a continuance to better prepare for his defense was

subverted when Boyd chose to accept a plea instead. The Court of Appeals also

noted:

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 Boyd’s trial counsel advised him that [his] MySpace
messages did not negate the forcible element of his rape
charge, and would not be a “magic bullet” as Boyd seems
to think. She further explained how the cumulative
evidence would be presented at trial: that a prior EPO
had been sought against him; that Boyd parked his truck
far away and walked to the house; that he entered the
home without permission; that he had threatened their
son; and that evidence exists that Boyd used a knife.
Boyd’s trial counsel testified at the evidentiary hearing
that she was surprised by the timing of Boyd’s decision
to plead guilty but she felt it to be prudent after this
explanation of the evidence and charges against him.

Boyd, 2016 WL 2638248, at *3. The Court of Appeals similarly concluded that the

Yahoo! Messenger messages were controlled by Boyd and had similar

authentication issues. Id. at *4.

As to Boyd’s argument that his counsel did not properly advise him of

all possible defenses, the Court of Appeals recounted his trial counsel’s testimony

as to how she advised him and noted that Boyd stated under oath both during entry

of his guilty plea and at the evidentiary hearing on the RCr 11.42 motion that “he

had no complaints about trial counsel and that he had been properly advised of his

defenses and penalties.” Id. Because his arguments had no merit, the Court of

Appeals found no cumulative error. Id.

On August 24, 2018, Boyd filed a pro se CR 60.02 motion arguing:

(1) his guilty plea was invalid because it was not made knowingly, voluntarily, and

intelligently where his rights to discovery were violated by not being informed of

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the messages by the Commonwealth and not having the opportunity to depose the

victim or have her competency evaluated and being convicted based on false

evidence; (2) the Commonwealth created exigent circumstances by coming in to

arrest him based on a “supposed gun” and the victim’s false statement; (3) he was

denied a full and fair hearing when he was denied exculpatory evidence and the

Commonwealth objected to the admission of the messages; (4) the circuit court

created a condition that made counsel ineffective by denying his motion to depose

the victim and not having a competency hearing on the victim; and (5) the

Commonwealth suppressed material evidence (regarding the messages).

The circuit court denied Boyd’s motion, explaining: Boyd was aware

of the allegations in the messages when he pled and this was either the same issue

he raised earlier in his RCr 11.42 motion or could have been raised earlier; the

motion to depose the victim was properly denied earlier pursuant to RCr 7.10

because there was no reason to believe she could not be called as a witness;

there were no exigent circumstances created by the police; Boyd could not be

denied a full and fair hearing where he chose to plead guilty; if Boyd wanted to

question the victim he should have proceeded to trial but chose to forgo this option

by pleading guilty; and there could be no fraud where Boyd knew about the

victim’s inconsistent statements.

CR 60.02 provides in relevant part:

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 On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable
neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59.02; (c) perjury or falsified
evidence; (d) fraud affecting the proceedings, other than
perjury or falsified evidence; (e) the judgment is void, or
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.

We review the denial of a CR 60.02 motion for abuse of discretion.

White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App. 2000).

Boyd has not established any grounds for relief pursuant to CR 60.02.

There was no mistake, newly discovered evidence, or falsified evidence, and even

if there were, such claims would already be time-barred. There was no fraud

affecting the proceedings, nothing void about his conviction, and no other reason

of an extraordinary nature justifying relief, and even if there were such claims, they

were not brought within a reasonable time where the issues Boyd raised were

either already addressed, could have been addressed earlier, or were foreclosed by

his decision to plead guilty.

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 Boyd had full knowledge of the messages he exchanged with the

victim prior to pleading guilty as he was a party to the messages and brought them

to the attention of his counsel. The Commonwealth had no duty to disclose

messages that Boyd already had in his possession. As was explained in the circuit

court’s denial of Boyd’s motion to depose the victim, RCr 7.10 precluded such

deposition where the victim was available to testify at trial. Whether the victim

was competent to be a witness at trial could have been explored at trial, but it

would not have excused Boyd’s conduct toward her.

Had Boyd proceeded to trial, if Boyd were ultimately dissatisfied with

the outcome, he could have pursued a direct appeal to challenge adverse rulings.

By entering his plea, Boyd voluntarily chose to forgo his right to make the

Commonwealth prove its case against him and waived his right to present a

defense. Dunlap v. Commonwealth, 435 S.W.3d 537, 563 (Ky. 2013).

Boyd waived his rights in exchange for a recommendation of a certain

outcome capping his total sentence at twenty years. It was a rational choice under

the circumstances.

Every ground for relief that Boyd now raises was known or knowable

at the time Boyd chose to enter his guilty plea. Postconviction motions are not a

work-around to escape the consequences of an intelligent and voluntary guilty plea

that a defendant now regrets.

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 When Boyd brought his RCr 11.42 motion, he could have also raised

the claims of error he attempts to raise here. As discussed in Gross v.

Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983):

a defendant is required to avail himself of RCr 11.42 . . .
as to any ground of which he is aware, or should be
aware, during the period when this remedy is available to
him. Final disposition of that motion, or waiver of the
opportunity to make it, shall conclude all issues that
reasonably could have been presented in that proceeding.
The language of RCr 11.42 forecloses the defendant from
raising any questions under CR 60.02 which are “issues
that could reasonably have been presented” by RCr 11.42
proceedings.

Therefore, this is an additional reason why his CR 60.02 claims are foreclosed.

Accordingly, we affirm the Bullitt Circuit Court’s order denying

Boyd’s CR 60.02 motion.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Eric Boyd, pro se Andy Beshear
Lagrange, Kentucky Attorney General of Kentucky

James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky

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