Opinion
NO. 2011-CA-000861-MR
10-05-2012
DOMONI BLINCOE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NOS. 08-CR-003523 & 08-CR-003748
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES. DIXON, JUDGE: Domoni Blincoe appeals from a Jefferson Circuit Court order denying his RCr 11.42 motion for post-conviction relief without an evidentiary hearing. Finding no error, we affirm.
Between June 27, 2008, and October 15, 2008, Louisville police investigated a series of armed robberies in the Highlands area of the city. In each robbery, the perpetrator brandished a weapon and took personal items from the victim. During the robbery that occurred on October 14, 2008, the assailant took the victim's credit cards and attempted to use the card to pay a utility bill. The perpetrator subsequently called the victim and demanded $5000.00 because the victim's PIN number was invalid.
On October 18, 2008, Blincoe was arrested after he drove away from a Thornton's gas station without paying for his gasoline. Blincoe was driving a stolen vehicle, and he nearly ran over the gas station manager as he fled. Blincoe was apprehended shortly thereafter, and he had marijuana, drug paraphernalia, and a kitchen knife concealed in the vehicle. As a result of this incident, Blincoe was indicted (#08-CR-003523) on one count of second-degree robbery, wanton endangerment, receiving stolen property over $300, theft by unlawful taking under $300, carrying a concealed deadly weapon, and possession of marijuana and drug paraphernalia.
Following Blincoe's arrest for the Thornton's incident, officers continued investigating the Highlands robberies. The officers discovered that the phone call made to the victim came from Blincoe's phone, and the attempted utility bill payment was for an account held by Blincoe's girlfriend. The officers included Blincoe in a photo pack lineup, and several of the victims from the Highlands robberies identified Blincoe as the perpetrator. The officers obtained an arrest warrant and arrested Blincoe as he left a court appearance on October 30, 2008. Blincoe signed a waiver of rights form and provided police with information connecting him to the Highlands robberies. Thereafter, Blincoe was indicted (#08-CR-3748) on thirteen counts of first-degree robbery.
On March 16, 2010, Blincoe appeared in Jefferson Circuit Court to enter guilty pleas in both cases. In exchange for his pleas, the Commonwealth recommended an aggregate sentence of thirty years' imprisonment. The court accepted the guilty pleas and sentenced Blincoe pursuant to the plea agreement.
In March 2011, Blincoe filed a pro se RCr 11.42 motion to vacate the judgment and sentence due to alleged ineffective assistance of counsel. The trial court denied Blincoe's motion without an evidentiary hearing, and this appeal followed.
Allegations of ineffective assistance of counsel arising from a guilty plea require a showing, "(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial." Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986), citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 370, 80 L. Ed. 2d 203 (1985).
Blincoe alleges his trial counsel was ineffective for failing to investigate his police interview and file a motion to suppress the incriminating statements he gave to police. Blincoe offers a bare assertion that the police questioned him without advising him of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Blincoe speculates that, if the statements had been suppressed, he would not have pled guilty because the Commonwealth would not have had sufficient evidence to convict him at trial.
In an RCr 11.42 proceeding, an evidentiary hearing is warranted only "if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
In his RCr 11.42 motion, and in his appellate brief, Blincoe offers the bare assertion that he gave incriminating statements to the police without being Mirandized. Unfortunately, Blincoe fails to set forth any specific facts to support this alleged constitutional violation, and he merely speculates that the statements would have been suppressed had counsel properly investigated. Blincoe does not explain exactly what an investigation into the police interview would have revealed, and he offers no explanation for the existence of the waiver of rights form he signed after his arrest. Finally, Blincoe does not claim that he made trial counsel aware of any potential problems regarding the admissibility of his incriminating statements.
"The RCr 11.42 motion must set forth all facts necessary to establish the existence of a constitutional violation. The court will not presume that facts omitted from the motion establish the existence of such a violation." Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). After careful review, we conclude Blincoe failed to set forth specific facts supporting his motion; consequently, summary dismissal without an evidentiary hearing was appropriate. RCr 11.42(2); Wedding v. Commonwealth, 468 S.W.2d 273, 274 (Ky. 1971).
For the reasons stated herein, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky