Opinion
NO. 2013-CA-001219-MR
06-20-2014
JAMAH DEONTA HARRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jamah D. Harris, pro se E.K.C.C. West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 08-CR-00481
OPINION
AFFIRMING
BEFORE: JONES, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Jamah D. Harris, pro se, appeals from an Order of the Hardin Circuit Court denying his RCr 11.42 Motion. Harris argues that his trial counsel's failure to file a Motion to Suppress and failure to consult with him constituted ineffective assistance of counsel. He also contends that he was coerced into entering a guilty plea, and that the Circuit Court improperly failed to conduct a hearing on the Motion. We find no error, and Affirm the Order on appeal.
On September 30, 2008, the Hardin County Grand Jury indicted Harris on one count each of Complicity to Commit Murder, Complicity to Commit First-Degree Robbery, Complicity to Commit Tampering with Physical Evidence, and Complicity to Commit Third-Degree Robbery. The charges arose from events occurring on July 21, 2008, when Harris and Jermaine Kirkland entered the Now Fashions store in Radcliff, Kentucky with the intent to commit a robbery. During the course of the robbery, Kirkland shot and killed the store owner, Charles Dole.
On August 14, 2009, Harris attempted to enter a guilty plea, after which the Commonwealth argued that he failed to provide a sufficient factual narrative to support the plea. The court then suspended the hearing for the filing of briefs. Thereafter, the hearing was reconvened on September 8, 2014, at which time Harris entered a guilty plea. Harris engaged in the plea colloquy, and the Court accepted his plea. The Court then sentenced Harris to life in prison, with parole eligibility after 20 years.
On October 16, 2012, Harris, pro se, filed an RCr 11.42 Motion seeking to vacate the sentence and conviction. As a basis for the Motion, Harris argued that he received ineffective assistance of counsel when counsel failed to move to suppress an allegedly coerced confession, failed to consult with him about the case, and coerced him into pleading guilty.
On December 26, 2014, the Circuit Court rendered an Order On Defendant's RCr 11.42 Motion, wherein it denied each of his claims for relief from Judgment. This appeal followed.
Harris now argues that the Hardin Circuit Court erred in denying his RCr 11.42 Motion. His primary contention in support of this claim is that he was denied due process of law when his trial counsel failed to file a Motion to Suppress his confession. Harris contends that the detectives who took his statement violated his Miranda rights and otherwise coerced his confession. Harris maintains that he was not read the Miranda rights, was not provided with an attorney despite asking for one, was told that he would receive the death penalty, was held in a cold room for hours and was denied food. He argues that his counsel was ineffective in failing to seek a suppression of the coerced confession that resulted, and that the Hardin Circuit Court erred in failing to rule.
To prevail on a claim of ineffective assistance of counsel, Harris 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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside theId. at 691-692. "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.
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).
We find no error on this issue for two reasons. First, during the plea colloquy Harris expressly denied that his confession was coerced. In response to counsel's questions, Harris stated that he remembered giving a statement to two detectives, that the statement was voluntarily made, that it was not coerced, and that he was read his Miranda rights before making the statement. Second, a guilty plea is "a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant[.]" McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed2d 763 (1970). See also Wheeler v. Commonwealth, 462 S.W.2d 921, 922 (Ky. 1971) (wherein the then high court held that "the admissibility of the allegedly coerced confession could have been tested at the original trial. When the defendant voluntarily enters a plea of guilty, he waives his right to challenge the admissibility of the confession."). Because Harris acknowledged in open court that his statement was voluntarily made after being apprised of his Miranda rights, and as the case law holds that a guilty plea constitutes a waiver of evidentiary issues which could have been addressed at trial, we find no error.
Harris also argues that he received ineffective assistance of counsel when his counsel failed to consult with him. He maintains that counsel spoke with him on only one occasion and would not reply to any of his letters or phone calls. We cannot conclude that the Hardin Circuit Court erred in failing to grant RCr 11.42 relief based on this allegation. Harris's counsel stated that he visited Harris several times at two detention centers. Additionally, Harris acknowledged during the guilty plea colloquy that he had sufficient time to consult with his attorney and that he was satisfied with his representation. Solemn declarations made in open court are presumed to be truthful. Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990). Based on the statement of Harris's counsel, coupled with Harris's own statement during the plea colloquy, we find no error.
Harris also contends that the Hardin Circuit Court committed reversible error in disposing of his RCr 11.42 Motion without conducting an evidentiary hearing. Harris would be entitled to a hearing if: 1) the alleged error would, if true, support relief under RCr 11.42 and 2) if the motion raises an issue of fact that cannot be adjudicated from the face of the record. Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001). Harris's claims are justiciable from the record. As such, the Hardin Circuit Court did not err in disposing of his RCr 11.42 Motion without a hearing.
For the foregoing reasons, we Affirm the Order of the Hardin Circuit Court denying Harris's motion for RCr 11.42 relief.
ALL CONCUR. BRIEF FOR APPELLANT: Jamah D. Harris, pro se
E.K.C.C.
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky