Opinion
NO. 2012-CA-001969-MR
05-30-2014
RAFI ALI APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: R. Christian Garrison Assistant Public Advocate LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 03-CR-00609
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND MOORE, JUDGES. MOORE, JUDGE: Rafi Ali appeals the Kenton Circuit Court's order denying his RCr 11.42 motion to vacate, set aside or correct his sentence and his CR 60.02 motion for relief from judgment. After a careful review of the record, we affirm because the claim Ali raises in the present appeal is different from the one for which we previously remanded the case. The law of the case doctrine prevents litigants from presenting issues to the appellate courts piecemeal.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
On direct appeal, the Kentucky Supreme Court stated the pertinent facts as follows:
The grand jury indicted Ali and a co-defendant in December 2003 for the murder of LaShawn Hughes. Six months later, Ali filed a motion for a speedy trial; and his first jury trial commenced one month after that.Ali v. Commonwealth, No. 2005-SC-000609-MR, 2007 WL 1159953, *1, *1-*7 (Ky. April 19, 2007) (unpublished). The Supreme Court affirmed the judgment against Ali. See id. at *12.
At the first trial, several witnesses testified to seeing Ali shoot Hughes in retaliation for Hughes's severely beating Ali's cousin. Ali contends that these eyewitnesses were intimidated into giving false testimony. He contends that the only eyewitness to the shooting-one who immediately called 911 and who was not connected with "the Covington street crowd"—stated that Ali did not match her description of the shooter. Another witness, Delmar Johnson, provided Ali with an alibi by testifying that he was driving Ali to Hamilton, Ohio, when Hughes was shot.
[Ali's first trial ended in a mistrial.]
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Several days after the mistrial, the trial court granted Ali's original trial counsel's motion to withdraw. Ali obtained new trial counsel; discovery proceeded; and retrial was scheduled for January 12, 2005. On December 20, 2004, Ali filed a motion for funding for transcripts to be prepared from the videotapes of the first trial, stating that transcripts were necessary to present his theory of the case at trial and to allow the trial to proceed in an efficient manner. On December 28, 2004, a grand jury indicted Ali for PFO [Persistent Felony Offender] I.
On January 10, 2005, two days before the second trial was scheduled to begin, the Commonwealth moved for a continuance, stating that the prosecutor assigned to
the case was not prepared to begin trial due to his recent busy trial schedule. The Commonwealth stated that it needed more time to subpoena witnesses and to arrange for witnesses in custody to be transported to the trial to testify. Defense counsel renewed the earlier speedy trial demand made by Ali and moved to dismiss the charges due to violation of speedy trial rights. The trial court expressed a reluctance to continue the trial but also expressed an unwillingness to dismiss charges that had already gone to trial. Defense counsel suggested that the charges be dismissed and that the parties brief the issue of whether the dismissal was with or without prejudice, stating this would give the Commonwealth a chance to "regroup" if the dismissal was without prejudice and that, in the meantime, perhaps Ali could be transported to a different correctional facility to serve out his remaining sentence on an unrelated parole revocation charge. The trial court sent defense counsel to inquire of Ali whether he might be more agreeable to a continuance if the trial court arranged for transfer to a more comfortable correctional facility. The trial court also pointed out that a continuance might give the defense a chance to obtain transcripts before trial.
After meeting with Ali, defense counsel reported that Ali did not agree to the delay and continued to assert his speedy trial rights. The trial court announced that it would not dismiss the charges and was granting the continuance over Ali's speedy trial objection. The trial court also stated it would move Ali to a better facility and that it would grant the motion for transcripts. Following this ruling, Ali entered his plea of not guilty to the PFO charge. The new trial date was set for April 6, 2005.
On April 4, 2005, Ali moved for a continuance because he was unable to secure the attendance of some witnesses for the scheduled trial date. The continuance was granted, and trial was reset for July 2005.
At the second trial, as at the first, several witnesses testified to seeing Ali shoot the victim. The one witness who had called 911 after witnessing the shooting testified that Ali did not match her description of the shooter. Ali
took the stand and testified that although he had been upset about LaShawn Hughes beating his cousin, and although he had made remarks that others might find threatening, he had left the scene of his cousin's beating in Delmar Johnson's car and had been dropped off at Ali's mother's house in Hamilton, Ohio. He testified that he was not at the scene when Hughes was shot.
The Commonwealth called Delmar Johnson as a rebuttal witness. Johnson testified—contrary to his testimony in the first trial—that he had not driven Ali to Hamilton, Ohio, the night of Hughes's shooting. Defense counsel confronted this witness with his conflicting testimony from the first trial. Upon cross-examination, Johnson claimed he had received threats after the first trial related to his testimony without stating the nature of the threats or indicating an approximate time frame in which they occurred. Johnson admitted that he now faced serious felony charges himself. These charges arose in the interim between trials, and Johnson was aware that he might face perjury charges relating to Ali's first trial. . . .
The jury found Ali guilty of intentional murder and PFO I and recommended a sentence of thirty-five years' imprisonment for the murder conviction. The jury declined to use the PFO I conviction to enhance this sentence. The trial court entered judgment imposing the jury's verdicts and recommended sentences, and [Ali appealed].
Ali filed his RCr 11.42/CR 60.02 motion in the circuit court. His motion was denied. Ali appealed, and this Court affirmed the trial court's denial of his motion in all respects "except as to one issue: [W]hether his attorney advised him not to accept the Commonwealth's advantageous plea offer because he believed he could get the charges against Ali dismissed on speedy trial grounds." Ali v. Commonwealth, No. 2010-CA-000113-MR, 2011 WL 1811704, *1, *6 (Ky. App. May 13, 2011) (unpublished). The Court remanded the case "for an evidentiary hearing on this allegation alone." Id.
On remand, the circuit court held an evidentiary hearing. Following the hearing, Ali filed a post-RCr 11.42 hearing memorandum. The circuit court again denied Ali's RCr 11.42/CR 60.02 motion, finding as follows:
Defendant claims that his counsel on the second trial, [Jason] Gilbert, advised him not to accept a plea offer by the Commonwealth of a recommendation of eight years to serve in exchange for a plea of guilty to manslaughter in the second degree because "he believed he could get the charges against Ali dismissed on speedy trial grounds."
* * * *
All three of the trial defense attorneys as well as the prosecutor were called as witnesses. [Ryan] Dowdy [Ali's other trial attorney for his second trial] testified that the only offer he recalled was in the seventeen-year range and that he himself never offered any advice as to whether or not to take an offer and that he did not believe that Mr. Gilbert had done so either. Mr. Gilbert testified that he recalled "ballpark" discussions of fifteen years that never arose to the level of a formal written offer by the Commonwealth; that he never offered any advice as to whether or not to take an offer because in any discussion with defendant of attempting to resolve the case defendant's consistent response was that "he didn't do this" and so would not agree to enter a plea of guilty; Mr. Gilbert further testified that he did discuss speedy trial issues generally but that he never told defendant that they had a chance of winning on a speedy trial ruling.
[Tasha] Scott [Ali's attorney during the first trial] testified that she had some recollection of plea negotiations in the case, specifically that during jury negotiations the Commonwealth offered twenty years which was rejected, and that at the time she withdrew from the case she wrote defendant to inform him of that fact and at that time told him that the Commonwealth had countered her offer with an unwritten offer of ten years to serve consecutive to a sentence he was serving at that time. [James T.] Redwine [the prosecutor during both trials] testified that in preparation for the first trial he thought it would be possible to resolve the case with a plea to manslaughter in the first degree but that they never did reach an agreement, that he vaguely recalled the change in offer during jury deliberations in the first trial being rejected, that he had no memory of extending a later ten-year offer to Ms. Scott, and that every discussion with Mr. Gilbert was met with a response of "no interest"; Mr. Redwine further testified with complete certainty that he never made an offer of eight years in this case and that he never made any formal written plea offer to Mr. Gilbert or Mr. Dowdy.
The court finds that the evidence in the record as to plea negotiations is that defendant was fully informed of the state of negotiations and that his decision not to accept any plea offers based on his assertion of innocence was firm and there was no reasonable probability that he would have pleaded guilty if given other advice. The court finds that there is no credible evidence that there was an offer of less than ten years; nor is there any proof that any of the defense counsel ever advised defendant not to accept any plea offer and, therefore, finds that defendant has failed to meet his burden of proving ineffective assistance of counsel . . . .
Ali subsequently filed a CR 52.02 motion for amendment and CR 59.05 motion to alter, amend, or vacate, alleging that the court had not "squarely ruled or made [findings of fact] on whether or not trial counsel had a duty to candidly advi[s]e Mr. Ali as to the probable outcome of motions and probable outcome at trial." The circuit court denied Ali's motions, holding that
[c]ontrary to the argument of defendant, the court did consider all of the duties of counsel. Incompetent advice that results in a defendant deciding to go to trial rather than plead guilty can be a violation of the right to counsel as set forth in Strickland v. Washington, 466 U.S. 668 (1984). Counsel has a duty to candidly advise defendant of the elements of the offense to be proven and to review the weight of the evidence and to state, based on their experience, whether that evidence appears sufficient to support a finding on each of the elements; this does not rise to the level of having to assign a probability to all of the potential outcomes as that would be speculation. The decision not to do so is within the objective standard of reasonableness and so would not meet the first prong of the Strickland test. It was the testimony at the hearing on the RCr 11.42 [motion], as well as the recollection of the court, that defendant was fully informed of the state of negotiations and that his decision not to accept any plea offers based on his assertion of innocence was adamant and there was no reasonable probability that he would have pleaded guilty if given other advice, so the second prong of Strickland is likewise not met.
Ali now appeals, alleging he received the ineffective assistance of counsel when trial counsel failed to advise him as to the likely outcome at trial, despite overwhelming evidence of guilt. The Commonwealth, in its response brief, counters that Ali is attempting to expand the scope of this appeal beyond what this Court intended when it previously remanded this case to the circuit court. In the order remanding this case to the circuit court, another panel of this Court directed the circuit court as follows:
The Kenton Circuit Court order denying Ali's post-conviction motion without a hearing is therefore affirmedThus, the Commonwealth asserts that Ali's claim in his present appellate brief arguing he received the ineffective assistance of counsel when trial counsel failed to advise him as to the likely outcome at trial, despite overwhelming evidence of guilt, is not properly before us.
except as to one issue: whether his attorney advised him not to accept the Commonwealth's advantageous plea offer because he believed he could get the charges against Ali dismissed on speedy trial grounds. The case is remanded for an evidentiary hearing on this allegation alone.
We agree with the Commonwealth. This Court was very specific in stating what claim was to be considered on remand, and the circuit court's decision regarding that claim is not what Ali now challenges in the present appeal. The law of the case doctrine "prevents a dissatisfied party from presenting piecemeal issues to the appellate courts so that no decision is ever final." Commonwealth v. Tamme, 83 S.W.3d 465, 468 (Ky. 2002). Thus, the law of the case doctrine prevents us from being able to review the claim Ali now raises, i.e., that he received the ineffective assistance of counsel when trial counsel failed to advise him as to the likely outcome at trial, despite overwhelming evidence of guilt.
Furthermore, in the present appeal, Ali does not challenge the circuit court's decision concerning the claim for which this case was previously remanded, i.e., whether Ali's attorney advised him not to accept the Commonwealth's advantageous plea offer because the attorney believed he could get the charges against Ali dismissed on speedy trial grounds. Therefore, Ali has waived his right to appeal that claim. See Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
Moreover, as noted by the circuit court, the evidence presented at the evidentiary hearing by all three defense counsels and the prosecutor from both trials revealed that none of them recalled a plea offer for an eight-year sentence, and only Ms. Scott recalled a plea offer for a ten-year sentence, although she attested the offer was not a formal, written offer. Specifically, Ms. Scott testified that when she was transferring the case to Mr. Gilbert after the first trial resulted in a mistrial and she was permitted to withdraw as counsel, she sent an e-mail to Mr. Gilbert stating that Mr. Redwine had offered ten years of imprisonment in exchange for Ali's guilty plea to first-degree manslaughter.
Mr. Gilbert remembered discussions with Mr. Redwine concerning a potential plea agreement for fifteen years of imprisonment, but Mr. Gilbert did not recall if this was ever put in writing. In fact, he did not remember any written plea offers from the Commonwealth. Mr. Gilbert attested that there was never a committed oral plea offer, either. He testified that he never told Ali they could win at trial or on appeal on speedy trial grounds, and he never advised Ali to reject plea offers based on chances of winning on a speedy trial motion or on chances of winning an appeal from the denial of a speedy trial motion. Mr. Gilbert attested that he would never have advised Ali to accept or reject a plea offer based upon speedy trial rulings. He testified that he told Ali he thought they could probably get the Commonwealth to agree to fifteen years of imprisonment.
Mr. Dowdy testified that he remembered a plea offer of approximately seventeen years, but Ali did not want to accept that offer. He did not recall any plea offers for shorter terms of imprisonment.
Mr. Redwine attested he had no recollection of any plea offer during the first trial. He remembered talking with Ms. Scott about resolving the case, but the plea offer was rejected. Mr. Redwine did not recall making the ten-year plea offer Ms. Scott wrote about in her e-mail to Mr. Gilbert. He attested he did not think a written plea offer was made when Ms. Scott was representing Ali, and he was certain there was no written plea offer made when Mr. Gilbert and Mr. Dowdy were representing Ali. Mr. Redwine was also certain that he had never made a plea offer of eight years of imprisonment in this case.
Ali also testified during his evidentiary hearing. He attested counsel did not advise him as to what the Commonwealth would have to prove or what they could or could not prove if he went to trial. Ali testified that Mr. Gilbert advised him not to take an eight-year plea offer because he was going to win on a speedy trial motion.
The circuit court chose not to believe Ali's contention that he had been offered an eight-year sentence because all of the attorneys in the case attested they did not recall an offer of eight years. "[C]redibility determinations are within the exclusive province of the fact-finder." Smith v. Commonwealth, 339 S.W.3d 485, 488 (Ky. App. 2010) (citation omitted). Thus, the circuit court's credibility finding that an offer of eight years had not been made will not be disturbed on appeal. The circuit court also found that there was no proof Ali's attorneys advised him not to accept the plea offers. Therefore, the circuit court held that Ali's ineffective assistance of counsel claim lacked merit. Based upon the testimony presented at the evidentiary hearing, we find no error in the circuit court's decision.
Accordingly, the order of the Kenton Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: R. Christian Garrison
Assistant Public Advocate
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky