Opinion
NO. 2018-CA-000301-MR
06-07-2019
JACOB BRANNON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jacob Brannon, pro se Wickliffe, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE W. A. KITCHEN III, JUDGE
ACTION NO. 09-CR-00436 OPINION
AFFIRMING
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BEFORE: KRAMER, NICKELL, AND L. THOMPSON, JUDGES. NICKELL, JUDGE: Jacob Brannon, pro se, challenges an order of the McCracken Circuit Court denying his motion pursuant to RCr 11.42. We affirm.
Kentucky Rules of Criminal Procedure.
BACKGROUND
On September 25, 2009, the McCracken County grand jury indicted Brannon on thirteen offenses stemming from a domestic dispute with his former girlfriend, Jessica Toon: two counts of first-degree wanton endangerment; two counts of first-degree unlawful imprisonment; one count of second-degree burglary; one count of fourth-degree assault/domestic violence; two counts of third-degree criminal mischief; one count of terroristic threatening; one count of attempted third-degree criminal mischief; alcohol intoxication in a public place; tampering with a witness; and being a second-degree persistent felony offender (PFO). In exchange for Brannon's guilty plea, the Commonwealth offered to amend the count of second-degree burglary to third-degree burglary and dismiss the PFO charge. The Commonwealth recommended concurrent three-year sentences for each felony as well as concurrent time for the misdemeanors and a fine for the violation.
Kentucky Revised Statutes (KRS) 508.060, a Class D felony.
KRS 509.020, a Class D felony.
KRS 511.030, a Class C felony.
KRS 508.030, a Class A misdemeanor.
KRS 512.040, a Class B misdemeanor.
KRS 508.080, a Class A misdemeanor.
KRS 222.202, a violation.
KRS 524.050, a Class D felony.
KRS 511.040, a Class D felony.
Brannon moved for probation before his sentencing hearing. The trial court agreed to probate Brannon for two years with credit for time served on the condition that, if Brannon violated the terms of his probation, his sentences would run consecutively for a total of eighteen years. The trial court sentenced Brannon accordingly on June 7, 2010. Brannon violated the terms of his probation in April 2011, so the trial court revoked Brannon's probation and ordered him to serve the remainder of his eighteen-year sentence.
On June 4, 2013, Brannon filed a pro se motion pursuant to RCr 11.42, arguing the trial court should vacate his sentence because his guilty plea was involuntary and his counsel ineffective. The trial court denied Brannon's motion without holding an evidentiary hearing. Brannon appealed to this Court, and the trial court's order was affirmed in part, vacated in part, and remanded for an evidentiary hearing on the issue of whether trial counsel investigated the possibility of an insanity defense based on Klinefelter Syndrome. Brannon v. Commonwealth, 2014-CA-000224-MR, 2015 WL 5474444 (Ky. App. Sept. 18, 2015).
The trial court's order describes Klinefelter Syndrome as a chromosomal disorder. "[W]hile normal males have an XY chromosomal pair, males with Klinefelter Syndrome have an additional X chromosome." It is "a neurogenic disorder with . . . hormonal deficiencies that typically require lifelong treatment." If untreated, "[m]ultiple behavioral manifestations and central nervous system disfunction" are common. "These include decreased impulse control, heightened anxiety, mood lability, low frustration tolerance, depression, and executive impairment."
On remand, the trial court bifurcated the evidentiary hearing, requiring Brannon to first prove trial counsel's performance was deficient before it would grant funding to retain an expert to provide an opinion on whether Brannon's Klinefelter Syndrome would have supported an insanity defense. The trial court found Brannon met his burden of establishing trial counsel's deficient performance under the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because there was no reliable evidence indicating counsel investigated an insanity defense based on Klinefelter Syndrome.
Based on this finding, the trial court granted post-conviction counsel's request for funds to retain Dr. Carole A. Samango-Sprouse, an expert in X and Y chromosomal disorders, to provide her opinion as to whether Klinefelter Syndrome supported an insanity defense. Dr. Sprouse examined Brannon's documented history, prepared a report, and testified telephonically at the hearing. The trial court found Brannon failed to show an insanity defense would have succeeded at trial under KRS 504.020. The trial court was unconvinced by Brannon's testimony he would not have entered a guilty plea had he known of the possibility of an insanity defense. The trial court denied Brannon's motion, finding Brannon was not prejudiced by counsel's failure to investigate Klinefelter Syndrome under the second Strickland requirement.
STANDARD OF REVIEW
"[W]e apply the de novo standard when reviewing counsel's performance under Strickland." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citation omitted). To succeed on a claim of ineffective assistance of counsel pursuant to RCr 11.42, a movant must fulfill two requirements:
[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As such, the trial court's inquiry is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694, 104 S.Ct. at 2068.
ANALYSIS
On appeal, Brannon argues: (1) he should have been evaluated for competency to enter a guilty plea; (2) the trial court was biased against him; (3) his post-conviction counsel was ineffective; and (4) the trial court should not have allowed Dr. Sprouse to testify regarding whether he has a mental disorder. Brannon did not raise any of these issues below. "[T]his Court 'is without authority to review issues not raised in or decided by the trial court.'" Dever v. Commonwealth, 300 S.W.3d 198, 202 (Ky. App. 2009) (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)). An appellant "will not be permitted to feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). Because Brandon did not raise any of his issues below and does not request review for palpable error, we decline to address his arguments on appeal.
CONCLUSION
For the foregoing reasons, we affirm the order of the McCracken Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Jacob Brannon, pro se
Wickliffe, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky