RENDERED: APRIL 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0499-MR
RODGER LEE COX APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NOS. 18-CR-00125-001 AND 18-CR-00255
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Rodger Lee Cox appeals pro se from the Taylor
Circuit Court’s order summarily denying his motion to vacate his sentence
pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 based on
ineffective assistance of counsel. As Cox has failed to establish any error or
prejudice, we affirm.
In February of 2018, Cox unlawfully entered a residence located in
Campbellsville, Kentucky, from which he stole items valued at approximately
$45,000. As a result, in 18-CR-00125-001, Cox was indicted in Taylor Circuit
Court on one count of second-degree burglary pursuant to Kentucky Revised
Statutes (KRS) 511.030; one count of receiving stolen property, $10,000 or more
pursuant to KRS 514.110; and one count of being a first-degree persistent felony
offender (PFO 1) pursuant to KRS 532.080(3).
In May of 2018, Cox cashed a stolen check in the amount of $135 at
OM Foodmart in Mannsville, Kentucky, and he cashed another stolen check in the
amount of $110.50 at a Highway 70 Mart in Campbellsville, Kentucky. As a
result, in 18-CR-00255, Cox was indicted in Taylor Circuit Court on two counts of
second-degree criminal possession of a forged instrument pursuant to KRS
516.060, and one count of being a PFO 1.
On March 19, 2019, the Taylor Circuit Court approved Cox’s plea
agreement with the Commonwealth, whereby he pled guilty to the substantive
charges in both cases, the PFO enhancements were dismissed and he was
sentenced to six years’ imprisonment. The Taylor Circuit Court also noted that in
February of 2019, Cox had entered guilty pleas in two other cases in Marion
Circuit Court (18-CR-00222 and 18-CR-00023). In those unrelated cases, Cox had
been indicted on two counts of second-degree burglary, one count of possession of
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a handgun by a convicted felon, and one count of possession of a firearm by a
convicted felon, and he was ultimately sentenced to ten years’ imprisonment.
Considering that, the Taylor Circuit Court ordered Cox’s six-year term of
imprisonment in 18-CR-00255 and 18-CR-00125-001 to run concurrently with his
ten-year term arising from 18-CR-00222 and 18-CR-00023. In short, Cox received
no additional time in custody due to his cases in Taylor Circuit Court.
Thereafter, in January of 2020, Cox filed both a motion to vacate his
sentences in the two Taylor Circuit Court cases pursuant to RCr 11.42 and a
motion for an evidentiary hearing. On March 26, 2020, the Taylor Circuit Court
denied both Cox’s RCr 11.42 motion and his motion for an evidentiary hearing.
Cox thereafter filed this appeal.
In a motion brought under RCr 11.42, “[t]he movant has the burden of
establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding.” Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006),
overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159
(Ky. 2009). An RCr 11.42 motion “is limited to issues that were not and could not
be raised on direct appeal.” Simmons, 191 S.W.3d at 561.
A successful petition for relief under RCr 11.42 for ineffective
assistance of counsel must survive the twin prongs of “performance” and
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“prejudice” provided in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d
37, 39-40 (Ky. 1985). As explained by the Kentucky Supreme Court, “[a]
deficient performance contains errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the Sixth Amendment.”
Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (internal quotation
marks and citation omitted). Moreover, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (internal quotation marks
omitted). As further stated in Strickland, “the court should recognize that counsel
is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.
Ct. at 2066.
As to the second Strickland prong, the defendant has the duty to
“affirmatively prove prejudice.” Id. at 693, 104 S. Ct. at 2067. In the context of a
guilty plea:
A conclusory allegation to the effect that absent the error
the movant would have insisted upon a trial is not
enough. The movant must allege facts that, if proven,
would support a conclusion that the decision to reject the
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plea bargain and go to trial would have been rational,
e.g., valid defenses, a pending suppression motion that
could undermine the prosecution’s case, or the realistic
potential for a lower sentence.
Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (citations and footnote
omitted).
Appellate review of the denial of an RCr 11.42 motion is de novo.
McGorman, 489 S.W.3d at 736. Where the trial court does not hold an evidentiary
hearing on an RCr 11.42 motion, appellate review is limited to “whether the
motion on its face states grounds that are not conclusively refuted by the record
and which, if true, would invalidate the conviction.” Lewis v. Commonwealth, 411
S.W.2d 321, 322 (Ky. 1967). An evidentiary hearing is only required “if there is a
material issue of fact that cannot be conclusively resolved, i.e., conclusively
proved or disproved, by an examination of the record.” Fraser v. Commonwealth,
59 S.W.3d 448, 452 (Ky. 2001).
In Cox v. Commonwealth, No. 2020-CA-0250-MR, 2020 WL
6538807 (Ky.App. Nov. 6, 2020) (unpublished), Cox unsuccessfully appealed the
Marion Circuit Court’s denial of his RCr 11.42 motion and his motion for an
evidentiary hearing relative to 18-CR-00222 and 18-CR-00023. There, Cox
offered many of the same arguments he now offers in this appeal, without
identifying any specific facts which differ from his Marion Circuit Court cases and
his Taylor Circuit Court cases. To the extent that his arguments are duplicative in
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all their particulars, the record before us gives us no reason to differ from how we
previously resolved them:
Turning to the first error Cox alleges on appeal,
Cox claims that his trial counsel neglected to reveal to
Cox certain recanted witness statements before Cox
entered his guilty plea. Because Cox is essentially
arguing that his guilty plea was invalid, he “must allege
with particularity specific facts which, if true, would
render the plea involuntary under the Fourteenth
Amendment’s Due Process Clause, would render the plea
so tainted by counsel’s ineffective assistance as to violate
the Sixth Amendment, or would otherwise clearly render
the plea invalid.” Stiger, 381 S.W.3d at 234 (emphasis
added).
Here, Cox provides no specific details as to the
actual content of either the original testimony or to the
claimed recanted testimony. He fails to explain how the
claimed recanted testimony rendered his guilty plea
involuntary under the Fourteenth Amendment’s Due
Process Clause, nor does he clarify or give specific facts
as to why he would have rejected the plea deal had his
trial counsel disclosed the allegedly recanted statements
and why such rejection would have been rational.
Finally, he fails to allege with particularity why the
disclosure of the alleged recanted testimony “would
otherwise clearly render the plea invalid.” Id. Therefore,
Cox cannot claim post-conviction relief based on this
claim.
Cox next argues that his counsel was ineffective in
failing to file a motion to suppress evidence seized from
a location that Cox describes as “Upper 70 Stone Creek
Road.” We again emphasize that “to be entitled to relief
under RCr 11.42, the movant must ‘state specifically the
grounds on which the sentence is being challenged and
the facts on which the movant relies in support of such
grounds.’” Roach v. Commonwealth, 384 S.W.3d 131,
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140 (Ky. 2012) (citation omitted). Moreover,
“[c]onclusory allegations that counsel was ineffective
without a statement of the facts upon which those
allegations are based do not meet the rule’s specificity
standard and so ‘warrant a summary dismissal of the
motion.’” Id. (citation omitted).
Here, Cox has failed to show any basis upon which
his trial counsel could have argued that any evidence
resulting from the search of the location should have
been suppressed. Cox does not claim, nor does the
record reveal, that Cox had any sort of property interest
or other type of interest in the Upper 70 Stone Creek
Road location to indicate that he would have a reasonable
expectation of privacy. See Watkins v. Commonwealth,
307 S.W.3d 628, 629-30 (Ky. 2010) (citation omitted)
(“[I]n order to have standing [to claim a violation under
the Fourth Amendment of the United States Constitution
or Section Ten of the Kentucky Constitution], the person
claiming must have a ‘reasonable expectation of privacy’
in the place to be searched.”). Because Cox’s claim
regarding the search of Upper 70 Stone Creek Road
lacked the required specificity regarding such expectation
of privacy, he cannot obtain post-conviction relief.
Stiger, 381 S.W.3d at 234.
Id. at *2.
Cox next alleges that his trial attorney was ineffective for counseling
him to accept a plea deal that violated his constitutional rights against double
jeopardy. Cox contends that, in pleading guilty to burglary and receiving stolen
property in 18-CR-00125-001, his double jeopardy rights were violated because he
was convicted twice for the same conduct. We disagree. It is well-established that
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convictions for burglary and receiving stolen property do not violate double
jeopardy. See Phillips v. Commonwealth, 679 S.W.2d 235, 236-37 (Ky. 1984).
Next, Cox argues his trial attorney was ineffective for failing to file a
motion for the trial judge to recuse himself. In support, Cox points out that the
trial judge, Hon. Samuel Spalding, was his attorney in 2005 on another criminal
matter, and that after that matter concluded, Cox filed an RCr 11.42 motion against
Spalding, which was unsuccessful. See Cox v. Commonwealth, No. 2009-CA-
000237-MR, 2010 WL 3717237 (Ky.App. Sep. 24, 2010) (unpublished). This
argument is without merit. First, Cox does not assert that he had ever even advised
his counsel that: (1) Judge Spalding had previously represented him; or (2) there
was some basis to believe that Judge Spalding would not be impartial. Without
having any knowledge of facts, or any basis to believe there were facts that would
support a motion to recuse, Cox’s counsel cannot be faulted for not filing such a
motion. Second, Cox has failed to inform any court of any conduct on Judge
Spalding’s part which would cause us to question Judge Spalding’s impartiality or
would have required his mandatory recusal under the Rules of the Supreme Court
(SCR) 4.300, Rule 2.7. Abbott, Inc. v. Guirguis, 626 S.W.3d 475, 485 (Ky. 2021).
Most critically, Cox does not explain how Judge Spalding presiding over his case,
or his counsel’s failure to make motion to recuse Judge Spalding, caused Cox
prejudice. As indicated, the trial court accepted Cox’s plea deal with the
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Commonwealth which allowed Cox to avoid any additional jail time, despite his
eligibility for additional time under the PFO statute.
Lastly, as Cox did in his appeal of his Marion Circuit Court cases, he
challenges the denial of his motion for an evidentiary hearing. We believe our
previous reasoning in resolution in those cases is equally appropriate here:
Cox contends the trial court wrongfully deprived him of
an evidentiary hearing. However, he is “not
automatically entitled” to such a hearing. Stanford v.
Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993)
(citation omitted). Only if there is “a material issue of
fact that cannot be determined on the face of the record”
must the trial court allow an evidentiary hearing. Id.
(citation omitted). As stated by the Kentucky Supreme
Court, if the record refutes the claims of error, there is no
basis for holding an evidentiary hearing. Id. (citing Glass
v. Commonwealth, 474 S.W.2d 400, 401 (Ky. 1971)). In
this case, the trial court correctly determined, based on
the record and as previously discussed, that no material
issue of fact existed. Thus, we can discern no error in the
trial court’s decision to not hold an evidentiary hearing in
this case.
Cox, 2020 WL 6538807, at *3.
Based on the foregoing, we affirm the Taylor Circuit Court’s order
summarily denying Cox’s RCr 11.42 motion for relief from the ineffective
assistance of counsel.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Rodger Lee Cox, pro se Daniel Cameron
Eddyville, Kentucky Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
Frankfort, Kentucky
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Rodger Lee Cox v. Commonwealth of Kentucky
Combined Opinion