Opinion
NO. 2012-CA-001122-MR
03-28-2014
GEORGE HARBIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Margaret Ivie Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 05-CR-000776
OPINION
VACATING AND REMANDING
BEFORE: COMS, DIXON, AND VANMETER, JUDGES. COMBS, JUDGE: George Harbin appeals the order of the Jefferson Circuit Court which denied his motion for relief pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42. After our review, we vacate and remand.
On April 17, 2006, a jury convicted Harbin of first-degree sodomy, first-degree sexual abuse, third-degree terroristic threatening, and indecent exposure. The jury was hung on a charge of second-degree persistent felony offender. On May 9, 2007, Harbin pled guilty to the persistent felony offender charge. He was sentenced to incarceration for twenty years. Harbin's direct appeal was denied by the Supreme Court of Kentucky on March 19, 2009.
On March 19, 2012, Harbin filed a motion pursuant to RCr 11.42 alleging that he had received ineffective assistance of counsel at his trial. He also sought an evidentiary hearing. The trial court denied both motions on May 16, 2012. This appeal follows.
RCr 11.42 permits a defendant to challenge his conviction and sentence on collateral grounds. RCr 11.42(1). Where, as here, the grounds are based on claims of ineffective assistance of counsel, the appellant must satisfy a two-pronged analysis:
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 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.Strickland v. Washington, 466 U.S. 668, 687 (1984), adopted by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both prongs must be met in order for the test to be satisfied. The Court elaborated as follows:
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. AStrickland, 466 U.S. at 694.
reasonable probability is a probability sufficient to undermine confidence in the outcome.
On appeal, we review a trial court's denial of a motion for an evidentiary hearing by scrutinizing whether the allegations are refuted by the record and whether they would nullify the conviction if true. Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). No evidentiary hearing is required if the record on its face contradicts the allegations. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986).
Harbin's first argument is that his counsel was ineffective by failing to investigate, subpoena, and call three specific witnesses. His second is that the trial court should have granted his motion for an evidentiary hearing. The Commonwealth presented proof for one and one-half days, but Harbin's counsel did not present any evidence in response.
Harbin now argues that his motion for relief claimed that counsel failed to investigate, subpoena, and call three witnesses - the victim's uncle and two of her friends. RCr 11.42(2) requires that grounds be stated with specificity and that they be supported factually. See also Haight v. Commonwealth, 41 S.W.3d 436, 444 (Ky. 2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). While it is true that Harbin has not explained how the victim's uncle would have assisted in his defense, he contends that her friends would have testified that the victim had fabricated the allegations.
As the Commonwealth correctly points out,
Judicial review of the performance of defense counsel must be very deferential to counsel and to the circumstances under which they are required to operate. There is always a strong presumption that the conduct of counsel falls within the wide range of reasonable professional assistance because hindsight is always perfect.Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky. 2003) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Appellate courts distinguish trial strategy from ineffective assistance on the part of counsel. Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998). Our task is to assess the effectiveness of counsel in the context of the proceedings. Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 2536, 156 L.Ed. 471 (2003).
With context in mind, we note that Harbin's counsel presented no proof for the defense. He did not present witnesses who (as Harbin contends) would have refuted the Commonwealth's proof. The record shows that counsel was made aware of the two friends of the victim, but there is no indication whether counsel followed up on the information.
Furthermore, in closing arguments, Harbin's counsel did not question the critical DNA evidence presented by the Commonwealth. The Commonwealth's key piece of physical evidence was a comforter that contained the victim's blood and Harbin's semen. Present also was the DNA of another female. The comforter belonged to the mother of the victim, who was Harbin's paramour at the time. The Commonwealth's witnesses testified that DNA evidence lasts indefinitely on objects outside the body. Harbin vigorously contends that the testimony of the two friends was critical and relevant with respect to refuting this evidence. Nonetheless, Harbin's counsel failed to pursue this defense by means of independent evidence or argument.
This court has often held that a failure to present witnesses does not constitute ineffective assistance of counsel. In Ivey v. Commonwealth, 655 S.W.2d 506 (Ky. App. 1983), the trial court periodically consulted with the defendant and counsel in chambers and had an ongoing understanding of why counsel acted as he did. Such interchanges did not occur in this case. From the record, we are unable to determine whether counsel's failure to pursue an argument or to present witnesses might have been reasonable trial strategy. Therefore, we believe that an evidentiary hearing was warranted to determine the issues raised by Harbin as they relate to his claim that counsel was ineffective for failing to investigate by interviewing and calling the witnesses identified by Harbin.
We vacate and remand for additional proceedings.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret Ivie
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky