Opinion
NO. 2011-CA-001652-MR
02-15-2013
GUY HARRISON FRENCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Christine Foster Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 06-CR-00067
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Guy French appeals from an Order of the Greenup Circuit Court overruling his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief. French argues that the circuit court improperly denied his request to serve as co-counsel, and that his trial counsel improperly failed to investigate his mental health and investigate the circumstances surrounding the case. We find no error and affirm the Order on appeal.
On May 19, 2006, the Greenup Circuit Court indicted French on one count of Sodomy 1st degree and one count of Sodomy 2nd degree after law enforcement investigators alleged that he engaged in unlawful sexual conduct with two minors. The matter proceeded for several months, with a jury trial being scheduled on April 9, 2007. A few days prior to trial, on March 29, 2007, French's trial counsel successfully moved to withdraw due to French's failure to respond to correspondence and otherwise having no contact with counsel. French, who was not in custody, was then arrested for failing to appear at a pretrial hearing.
Thereafter, French was appointed a public defender, and at a pretrial hearing on January 10, 2008, he executed a motion to enter a guilty plea in accordance with a plea agreement offered by the Commonwealth. A guilty plea colloquy was conducted, during which French acknowledged forcing his victims to perform oral sex on him. On March 6, 2008, French was sentenced to 20 years in prison and ordered to complete a sexual offender program.
On November 6, 2008, the Greenup Circuit Court granted French's Motion to Proceed Forma Pauperis. The following month, French filed a 112-page pro se Motion to Vacate and Set Aside Sentence pursuant to RCr 11.42. As a basis for the motion, French alleged that 1) his trial counsel improperly failed to demonstrate that he was not competent to participate in the criminal proceeding; 2) counsel failed to investigate for potential witnesses, subpoena records and consider defense strategies; 3) Paul Craft, the husband of appointed defense counsel Amy Craft, was appointed as a guardian ad litem in this case, thus creating a conflict; and 4) counsel failed to challenge as unconstitutional the parole eligibility provisions of Kentucky Revised Statutes (KRS) 439.3401. French also filed a pro se motion asking the trial court to allow him to act as co-counsel at the RCr 11.42 evidentiary hearing. That motion was summarily denied. French was appointed new counsel who moved to submit the case on the pleadings and indicated that she would not supplement French's pro se motion.
Upon hearing proof on the RCr 11.42 motion, the circuit court rendered an Order on August 23, 2011, denying the relief sought. In support of the Order, the court addressed each allegation in serial fashion before determining that Ms. Craft's representation of French did not fall below the objective standard of reasonableness to which he was entitled. This appeal followed.
French, through counsel, first argues that the trial court erred to his substantial prejudice by denying his motion to serve as co-counsel in the RCr 11.42 proceeding. He directs our attention to the right to counsel as derived from the Sixth Amendment to the United States Constitution and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). French also points to Section 11 of the Kentucky Constitution for the proposition that a defendant has the right to be heard "by himself and counsel," and he maintains that the circuit court improperly disregarded this right below. French also contends that Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), stands for the proposition that an accused has a constitutional right to make a limited waiver of counsel and to act has his own counsel, and that the trial court must grant such request after holding a hearing to ensure that the accused understands his decision. In sum, French argues that the trial court erred when it summarily denied his request to serve as co-counsel at the RCr 11.42 evidentiary hearing.
Faretta and its progeny hold in relevant part that when a criminal defendant seeks to waive his right to traditional representation and serve as co-counsel, the court must determine if the waiver is voluntary, knowing and intelligent; warn the defendant of the hazards he may encounter by representing himself; and render a finding on the matter. Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004); Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky. 1994). French maintains that the trial court's failure to comply with this procedure below constitutes reversible error. We do not agree. The right of self-representation at trial derives from the fundamental right to counsel. Gideon, supra. However, the Kentucky Supreme Court has determined that, "[t]here is no constitutional right to a post-conviction collateral attack on a criminal conviction or to be represented by counsel at such a proceeding where it exists." Fraser v. Commonwealth, 59 S.W.3d 448, 451 (Ky. 2001), citing Murray v. Giarratano, 492 U.S. 1, 8, 109 S.Ct. 2765, 2769, 106 L.Ed.2d 1 (1989). We find persuasive the Commonwealth's argument that if there is no constitutional right to a post-conviction collateral attack nor to representation as part of such an attack, it follows that a criminal defendant has no constitutional right to serve as co-counsel. Additionally, though RCr 11.42 provides for the appointment of counsel where an evidentiary hearing is required, it does not provide that the movant may serve as co-counsel. We find no error on this issue.
French next argues that he was denied effective assistance of counsel when counsel failed to investigate his mental health and the circumstances surrounding the case. French maintains that his failure to appear at a pretrial conference and failure to maintain contact with his counsel was an act of incompetence and irrationality so obvious as to require an investigation into his competence. French contends that he suffered from Post Traumatic Stress Syndrome and overpowering depression, was not visited in jail by friends or family, and had abused alcohol prior to arrest.
Additionally, French contends that his trial counsel improperly failed to investigate Department of Human Services records concerning other alleged acts of abuse committed against his victims by other persons, failed to acquire school records or to have the victims examined by an independent expert, and failed to uncover exculpatory victim statements and secure character witnesses. He contends that these failures constitute ineffective assistance of counsel, thus entitling him to a reversal of the Order on appeal.
To prevail on a claim of ineffective assistance of counsel, the defendant must show two things:
First, 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 showStrickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
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.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. (Internal citation omitted).Strickland, 466 U.S. at 691-692, 104 S.Ct. at 2066-2067. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "The defendant must show that 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. at 694. Additionally, "a hearing is required 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, 743-744 (Ky. 1993).
In the matter at bar, there is scant evidence to support the notion that French lacked the mental capacity to enter a plea. No history of mental illness or incapacity has been introduced, and both French and his trial counsel testified that French understood the charges and that his waiver of rights was knowing, intelligent and voluntary. French's unsupported assertions of Post Traumatic Stress Disorder and his failure to appear at a hearing and maintain contact with counsel, taken alone, are insufficient to demonstrate that his replacement counsel was ineffective by not arguing mental incapacity. Additionally, and arguendo, there is no basis for concluding that the outcome of the proceeding would have been more favorable to French had he not entered a guilty plea.
As to counsel's alleged improper failure to investigate various aspects of the case, including the failure to uncover exculpatory victim statements or character witnesses, we also find no error. These claims are best characterized as self-serving and there no basis for concluding that if such investigations had occurred they would have benefitted French. According to the record, French did not tell his replacement counsel about any alleged claims of abuse against the same victims arising in other states, nor whether there is any documentation of same. Additionally, French does not reveal how the acquisition of school records showing the victims' good grades and attendance would have assisted him in his defense nor that counsel was even aware of such records.
Trial counsel has a duty to conduct a reasonable investigation. Robbins v. Commonwealth, 365 S.W.3d 211 (Ky. App. 2012). In this context, a "reasonable investigation" is not an investigation that the best criminal defense lawyer in the world, blessed with unlimited time, resources and hindsight, would conduct. Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Rather, the investigation must be reasonable under the circumstances. Id. French has not demonstrated that counsel's investigation was not reasonable under the circumstances, nor that the outcome of the proceeding would have been more favorable but for counsel's purported failure to reasonably investigate the case and represent French's interests. Accordingly, we find no error.
For the foregoing reasons, we affirm the Order of the Greenup Circuit Court overruling French's Motion for RCr 11.42 relief.
ALL CONCUR BRIEFS FOR APPELLANT: Christine Foster
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky