Opinion
NO. 2019-CA-000681-MR
04-03-2020
ANTHONY BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: David L. Stewart LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 14-CR-00160 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES. CALDWELL, JUDGE: Anthony Brown hereby appeals the trial court's rulings denying him post-conviction relief after he alleged ineffective assistance of trial counsel via RCr 11.42. After a careful review of the record, we affirm.
Kentucky Rules of Criminal Procedure.
FACTS AND PROCEDURE
In 2014, Appellant Anthony Brown, along with an acquaintance, approached a man outside of a bar. Armed with an Airsoft handgun, Brown threatened the man and demanded he be given the man's wallet and cell phone. The man complied with Brown's demands and then entered his vehicle. As the victim was driving away, he believed he saw Brown aim the gun at him and, not realizing it was not an actual firearm, grabbed his own firearm from the glovebox and shot at Brown, striking him in the foot. Both Brown and his acquaintance took off running from the scene. The victim returned to the bar, went back inside and asked for 911 to be called as he had just been robbed. Police responded and both perpetrators were found and arrested with the assistance of K9 officers.
Brown was charged with robbery in the first degree, fleeing or evading in the first degree and being a persistent felony offender (PFO) in the second degree. He was appointed counsel and entered guilty pleas to robbery in the first degree and fleeing or evading in the first degree with the PFO count being dismissed. He was sentenced to fourteen (14) years' imprisonment, significantly less time than the possible maximum sentence he could have faced.
After the passage of approximately three years, Brown filed, pro se, a motion seeking relief pursuant to RCr 11.42. He alleged in the motion three reasons he believed he received ineffective assistance of counsel: 1) that his counsel had "used racism" to coerce his plea; 2) that counsel had failed to properly advise him as to the facts and law of his case; and 3) that his counsel was ineffective for allowing him to plead guilty to first-degree offenses when his cohort had been allowed to plead guilty to second-degree robbery.
The trial court conducted two evidentiary hearings into the allegations. Brown's trial counsel testified at each and Brown himself testified at the first. At the first hearing, the substance of counsel's advice to accept the plea deal was explored. Trial counsel testified that she would have advised Mr. Brown, an African-American man from Ohio, that the likelihood of having any persons of color on his jury was slight, based on her experience trying cases in the community for many years. She also testified she warned him that, as his victim was a first-responder (firefighter), the jury might also consider that fact in assessing a sentence, and might as well consider the fact that he was not a member of the community in arriving at a sentence which would be longer than the plea offer. Mr. Brown, in his testimony, confirmed the substance of the discussions he had had with counsel about the likelihood of a longer sentence with a jury verdict prior to entering a plea.
Concerning his second allegation of ineffective assistance, counsel testified at the first hearing that she discussed the elements of the offenses with her client and ensured he understood the burden of proof the Commonwealth must carry, but also advised him that it was possible that the co-defendant acquaintance may testify as part of a deal. The fact that Brown was on probation in Ohio and was not supposed to leave the state was also cited by both counsel and Brown as having been discussed as a fact which might lead a jury to assess a lengthier sentence than that offered by the plea deal. Brown also suggested in his pleadings that he had reason to suspect that the prosecutor and his appointed counsel "conspired" to provide his co-defendant a more favorable plea deal and alleged that the co-defendant received a better plea offer with a lesser charge and sentence. The trial court noted, however, that Brown offered no evidence in support of this theory.
As to the third allegation—that counsel was ineffective for allowing Brown to enter a guilty plea to the charge of fleeing or evading police in the first degree as there was no evidence to prove that any person was placed in danger of serious physical injury or death as he had fled on foot—the trial court found that counsel had engaged in a risk benefit analysis and believed that while Brown had a possibility of being found not guilty of first-degree fleeing or evading, she believed it likely he would be found guilty of robbery in the first degree and being a persistent felony offender in the second degree. Given that belief, she advised Brown that the plea deal was still advisable, despite the fact that she believed that she might be able to convince a jury to find him not guilty of first-degree fleeing and evading police.
On appeal, Brown argues not that the trial court incorrectly determined that appointed counsel rendered effective counsel in advising him about entering the plea. Rather, he argues that the trial court improperly constrained the subject matter of the hearings and disallowed him from putting on all of the evidence he desired, and by doing so denied him an evidentiary hearing as the law requires.
STANDARD OF REVIEW
Ordinarily, claims made in post-conviction appeals concerning RCr 11.42 are reviewed pursuant to the standard of review as articulated by this Court recently:
In evaluating a claim of ineffective assistance of counsel, we apply the familiar "deficient-performance plus prejudice" standard first articulated in Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). The defendant must "show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. Every defendant is entitled to reasonably effective—but not necessarily errorless—counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011).Owens v. Commonwealth, 512 S.W.3d 1, 6 (Ky. App. 2017).
However, in the present case, Brown complains not that the trial court incorrectly determined that his trial counsel had rendered effective counsel, but rather, that the trial court denied him due process of law by unnecessarily constraining the subject matter of the two evidentiary hearings held regarding his claims. Thus, we will be employing an abuse of discretion standard. In reviewing evidentiary rulings, "[a] decision by the trial court will not be disturbed in the absence of an abuse of discretion." Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008). In reviewing evidentiary rulings, it is clear that "[t]he standard of review of an evidentiary ruling is abuse of discretion." Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (citation omitted).
ANALYSIS
Brown argues that the trial court erred in limiting the scope of the evidentiary hearings without having determined whether the record refuted the allegations or he would not be entitled to relief on those issues.
First, it must be remembered that a trial court only need hold an evidentiary hearing on issues raised in an RCr 11.42 motion if the issues would entitle one to relief and are not refuted by the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Thus, the trial court had to engage in a review of the issues presented to determine first whether an evidentiary hearing was warranted; in response to the pro se RCr 11.42 motion, the trial court appointed counsel and set a hearing because "[t]his Court believes that Defendant's allegations that trial counsel used racism in Campbell County to coerce him into pleading guilty are not refuted by the record and are sufficient to entitle Defendant to a hearing." (Order, February 14, 2018). The fact that the trial court constrained the evidence in that hearing to admitting only that which had a tendency to prove or disprove that allegation is not an abuse of discretion, but is a proper response to an allegation of ineffective assistance of counsel which cannot be refuted by the record.
The trial court, after finding that there was insufficient evidence presented to find that trial counsel was ineffective for having advised Brown to accept the plea offer, once again displayed a thorough analysis of the issues presented when it scheduled a second evidentiary hearing on the question of whether trial counsel could have been ineffective for having advised him to plead guilty to an offense—first-degree fleeing or evading police—when it was likely that the prosecution could not have proven each and every element beyond a reasonable doubt. After that hearing, the trial court found that counsel had not been ineffective for advising Brown to enter a plea to a charge that the prosecution may not have been able to prove because, in part, she was most concerned about him being found guilty of other charges, and the sentence recommendation with the plea offer was significantly less time than the minimum sentence had he been found guilty of those other offenses (robbery in the first degree and being a persistent felony offender in the second degree). See Russell v. Commonwealth, 992 S.W.2d 871, 875-76 (Ky. App. 1999) (where trial counsel tried to have a rape charge dismissed pre-trial and was not able to do so, counsel was not ineffective for advising a guilty plea to that charge, along with murder, where the total sentence to serve was the minimum available sentence on the murder charge).
Again, a trial court only holds an evidentiary hearing after a determination that allegations presented in an RCr 11.42 motion would entitle one to relief, if true, and are not resolved by a review of the record. Fraser, 59 S.W.3d at 452; see also Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014). The trial court, having reviewed the RCr 11.42 memorandum and motion filed by Brown, determined that the only issues presented which required an evidentiary hearing were the issues concerning the advice of counsel as to likely racial composition of the jury and any possible prejudices for the victim and against Brown and whether counsel had advised her client to accept a plea to a charge it did not appear the prosecution could prove. Since a trial court is required to hold an evidentiary hearing on only those issues it finds would require relief and which are not refuted in the record, the trial court has the authority to constrain evidence so that it is focused only on those issues. Wilson v. Commonwealth, 975 S.W.2d 901, 904 (Ky. 1998) ("a hearing is not required on each and every issue raised in an RCr 11.42 motion").
After the first evidentiary hearing which dealt with the first two allegations—the advice concerning biases of a jury and the plea deal obtained by his co-defendant—the trial court entered an order. In that order, the trial court found:
[D]efense counsel testified that she did discuss race with Defendant and the racial and ethnic composition of Campbell County. She further told him she would ask questions during voir dire to specifically weed out anyone who would convict on the basis of race alone. She also discussed the fact that Defendant is from out of state and that the community could be biased based on that.
. . . .
[D]efendant throws in an argument that his trial counsel and the Commonwealth made a pact to deceive the Court. This is based on the fact that his co-defendant pled to a lesser charge when the Commonwealth offered Defendant a plea on Robbery in the First Degree. Defendant failed to put forth any proof that there was a pact between the parties or that a plea deal was entered into with his co-defendant prior to Defendant's guilty plea.
Despite the allegation that the trial court unnecessarily constrained its review to only the most narrow of issues, it is clear in its order that it did consider all of the allegations put forth by Brown. Further, it held a second evidentiary hearing, finding afterwards that simply because counsel advised a plea to a charge that counsel would have argued the prosecution failed to prove had the matter gone to trial does not amount to ineffective assistance, particularly where the sentence is equal to the minimum sentence for another charge on which there is no similar reticence concerning quantum of proof. See Russell, 992 S.W.2d at 876.
Interestingly, Brown has not asked us to review the conclusions of the trial court in denying the motion pursuant to RCr 11.42, and has rather focused on the sufficiency of the proceedings. As Brown has not requested review, we will not endeavor to review the trial court's conclusions. We do hold that the evidentiary hearings held were sufficient and the trial court did not abuse its discretion in narrowing the scope of evidence to that which would prove only those allegations contained in the RCr 11.42 motion that passed the court's preliminary review and appeared to be issues that would warrant relief and were not resolved on the fact of the record. Fraser, supra, at 452.
For the foregoing reasons, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: David L. Stewart
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky