Opinion
NO. 2017-CA-000355-MR
09-14-2018
SELWYN DIXON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Selwyn Dixon, pro se Fredonia, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 12-CR-00293 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND MAZE, JUDGES. DIXON, JUDGE: Selwyn W. Dixon, pro se, appeals a Bullitt Circuit Court order that denied his motion for post-conviction relief pursuant to RCr 11.42. Finding no error, we affirm.
In July 2012, Dixon was arrested following an apartment fire and methamphetamine lab explosion that left his co-defendants, Jeremy Burton and Chasity Brinley, severely burned. A Bullitt County grand jury indicted Dixon on charges of manufacturing methamphetamine, possession of a controlled substance, second-degree burglary, wanton endangerment (three counts), and first-degree persistent felony offender (PFO).
The Commonwealth submitted a written offer on plea of guilty, offering dismissal of the PFO charge and recommending an aggregate twenty-one-year sentence on the remaining charges. Dixon accepted the offer and signed a motion to enter guilty plea. Following a hearing, the court accepted Dixon's guilty plea and sentenced him to twenty-one years' imprisonment.
In July 2014, Dixon moved the circuit court to vacate his conviction due to alleged ineffective assistance of trial counsel. Dixon asserted his attorney, Rebecca Murrell, failed to provide him with statements made by his co-defendants, Brinley and Burton. Dixon specifically alleged he was coerced into pleading guilty because Murrell failed to investigate whether the Commonwealth impermissibly withheld his co-defendants' exculpatory statements. The trial court rendered a written order denying the RCr 11.42 motion without an evidentiary hearing. In its order, the court thoroughly analyzed each of Dixon's arguments, reviewed the plea colloquy, and determined Dixon's claims were without merit. The court stated, in relevant part:
The certified record on appeal does not contain the video recording of Dixon's plea colloquy; accordingly, we "must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). --------
Upon review of the record, the Commonwealth expressly denounced possessing any written or recorded statement made by Brinley that would require disclosure to the defense pursuant to RCr 7.26. There is no indication that such statements ever existed. The Commonwealth merely indicated that Brinley's anticipated trial testimony would be consistent with the tendered July 2nd and July 6th statements of Jeremy Burton, another co-defendant in the case, and prior statements of the Defendant.
. . .
It is clear from the record that Murrell exhausted every lawful means to secure such evidence and would have succeeded if such evidence had existed. The Defendant's own memorandum attached to his Motion to Vacate or Set Aside admits 'counsel displayed every avenue made available to her to prevail.'
. . .
As discussed above, there is no indication the Commonwealth possessed a written or recorded statement from Brinley so as to trigger any duty to disclose under United States or Kentucky law. Despite the Defendant's repeated assertions that the Commonwealth 'intentionally withheld' such evidence, the Defendant has offered no evidence tending to indicate that any such statement ever even existed.
. . .
Upon review of the record, the Commonwealth possessed a wealth of admissible evidence to convict the Defendant. In addition to the statements of Burton described above, the Defendant was found to have consented to a search of his person and vehicle. This search uncovered products used in the manufacturing of methamphetamine. The Defendant admits that his decision to enter a guilty plea was based upon his ascription of weight to the Commonwealth's evidence. The Defendant's Memorandum reaffirms his testimony at
the time of the entry of the plea was based on recommendation of Counsel. In consideration of the totality of the circumstances, the Court finds that the Defendant's plea was a voluntary and intelligent choice among the alternative courses of action open to the defendant. The Court has not been provided any factual basis to find otherwise.
Dixon now raises the same arguments on appeal, and contends the trial court improperly denied his RCr 11.42 motion without an evidentiary hearing.
Where, as here, ineffective assistance of counsel is alleged in the context of a guilty plea proceeding, the movant must show, "(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). Furthermore, a trial court must hold an evidentiary hearing only "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 the case at bar, our review indicates the record clearly refutes Dixon's allegations of ineffective assistance; consequently, the court was not required to hold an evidentiary hearing. Id.
Dixon asserts speculative allegations his trial counsel was deficient for failing to investigate potential other witnesses, possible police wrongdoing, and his co-defendants' statements. Although he believes counsel's investigation was deficient, Dixon fails to offer, with any specificity, exactly what witnesses or other information counsel could have discovered that would have aided his defense. RCr 11.42(2) provides that a petition "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion." Here, Dixon's mere speculation is insufficient to show that, but for trial counsel's alleged failure to investigate, Dixon would not have pled guilty. The record is clear the Commonwealth had an extremely strong case against Dixon, and by pleading guilty, he avoided the significant risk of receiving a PFO-enhanced sentence. After careful review, we conclude the trial court properly denied Dixon's motion for post-conviction relief.
Finally, Dixon contends the totality of counsel's deficiencies resulted in cumulative error. We disagree. This Court has previously stated, "In order for individual allegations of ineffective assistance of counsel to have a cumulative effect, the individual allegations must have merit." Johnson v. Commonwealth, 180 S.W.3d 494, 503 (Ky. App. 2005). Because Dixon's individual allegations of deficient performance are meritless, there is no cumulative error.
For the reasons stated herein, we affirm the order of the Bullitt Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Selwyn Dixon, pro se
Fredonia, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky