Opinion
NO. 2012-CA-002192-MR
09-19-2014
PENNY JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Krista Dolan Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 08-CR-00232
OPINION
AFFIRMING
BEFORE: CAPERTON, CLAYTON, AND NICKELL, JUDGES. CAPERTON, JUDGE: The Appellant, Penny Johnson, appeals the December 3, 2012, order of the Hardin Circuit Court, denying her Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing, which she filed following her guilty plea to robbery in the first degree for which she was sentenced to twelve years of imprisonment. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Because Johnson pled guilty sub judice, there was no trial or evidence submitted aside from the statements which Johnson made during her guilty plea and evidence presented during the competency hearing. The uniform citation filed by Elizabethtown Police Detective Clinton Turner stated that Johnson was arrested at 11:07 a.m. following a robbery that occurred at 10:49 a.m. on February 20, 2008. Police stopped Johnson, who was a passenger in a 2001 white Toyota Camry, because she "along with Steven Bond robbed South Central Bank on North Dixie. Above [Johnson] was passenger in vehicle that was pursued. Above [Johnson] confessed to the robbery after apprehension and being read [her] rights."
On April 29, 2008, the grand jury of the Hardin Circuit Court indicted Johnson, charging her with four counts of robbery in the first degree. The indictment indicated that on February 20, 2008, Johnson participated in a robbery at South Central Bank in Elizabethtown wherein she used a deadly weapon to rob four bank employees, Dana E. Hall, Julie W. Rich, Betty Brown, and Susan M. Gaines.
Thereafter, on November 19, 2008, Johnson filed a motion requesting a psychiatric evaluation. On January 26, 2009, the trial judge signed an order directing that a psychologist or a psychiatrist be appointed to evaluate Johnson's capacity for criminal responsibility and mental illness. On February 13, 2009, Dr. J. Robert Noonan, a license clinical psychologist with the Kentucky Correctional Psychiatric Center in LaGrange, evaluated Johnson. At a competency hearing held May 19, 2009, Dr. Noonan expressed the opinion that Johnson was "clearly competent to stand trial," primarily because tests which he administered indicated that she could think in a logical and coherent manner.
Pursuant to a plea agreement, on August 18, 2009, Johnson appeared before the Hardin Circuit Court and pled guilty to robbery in the first degree. In exchange for Johnson's guilty plea the Commonwealth agreed to recommend an aggregate sentence of imprisonment of twelve years. Adhering to the plea agreement, on October 7, 2009, the Hardin Circuit Court entered judgment against Johnson, sentencing her to imprisonment for a total of twelve years.
More than three years later, on September 26, 2012, Johnson filed the aforementioned RCr 11.42 motion to vacate judgment in the Hardin Circuit Court arguing that her trial counsel was ineffective during the guilty plea proceedings. On December 3, 2012, the trial judge denied the motion finding that trial counsel had been effective. It is from that order that Johnson now appeals to this Court.
On appeal, Johnson argues: (1) That trial counsel was ineffective for misadvising Johnson as to the consequences of a guilty but mentally ill (GBMI) plea, thus rendering her plea unknowing, involuntary, and unintelligent; (2) Trial counsel's advise to enter a guilty plea when the facts did not support the charges was objectively unreasonable based upon a wide range of professional norms; and (3) Trial counsel was ineffective for losing evidence crucial to Johnson's mental health defense.
In response, the Commonwealth argues: (1) That an RCr 11.42 movant is not entitled to an evidentiary hearing when the trial judge can resolve the grounds raised by referring to the record; and (2) That Johnson's trial counsel provided effective assistance of counsel during the guilty plea proceedings.
At the outset, we note that our standard of review of an RCr 11.42 motion is governed by the jurisprudence set forth by our United States Supreme Court. It has prescribed a two-pronged test describing the defendant's burden of proof in these cases. 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, 2064, 80 L.Ed.2d 674 (1984), adopted in Kentucky by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both criteria must be met in order for the test to be satisfied. The Strickland Court emphasized that reviewing courts should assess the effectiveness of counsel in light of the totality of the evidence presented at trial and the fundamental fairness of the challenged proceeding. Id., 466 U.S. at 695-96, 104 S.Ct. at2069.
The Strickland test, when applied in the context of guilty pleas, was refined by our United States Supreme Court in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In Hill, the Supreme Court held that, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Id., 474 U.S. at 59, 106 S.Ct. at 370. We may not disturb the findings of the trial court unless clear error has been committed. Commonwealth v. Payton, 945 S.W .2d 424, 425 (Ky. 1997). We review the arguments of the parties with these standards in mind.
As her first basis for appeal, Johnson argues that the trial court erred in overruling her motion without an evidentiary hearing because counsel misadvised Johnson of the consequences of a GBMI plea, thus rendering her plea unknowing, involuntary, and unintelligent. Johnson asserts that her counsel informed her that she would serve her sentence in a mental health facility, and that when she was deemed to be functioning normally she would be released. Johnson asserts that had she been informed that she would serve her sentence in prison, she would have proceeded to trial. While acknowledging that she participated in a plea colloquy with the court, Johnson asserts that she only did so based upon the advice of her counsel and that the advice was erroneous. Accordingly, she urges this court to remand this matter for an evidentiary hearing for the purpose of determining what advice was given to Johnson by her attorney regarding a GBMI plea.
In response to the arguments made by Johnson the Commonwealth asserts that the court correctly overruled Johnson's RCr 11.42 motion without an evidentiary hearing. The Commonwealth asserts that the record plainly refutes Johnson's allegation that the court misadvised her as to the sentence. We agree.
Upon review of the record, we note that in her plea colloquy with the court on August 18, 2009, Johnson was advised by the court on at least two occasions that the Commonwealth would recommend that she serve twelve years in the custody of the Department of Corrections. When she was asked if she had any questions about that recommendation, Johnson responded in the negative on four separate occasions. Further, Johnson was advised by the court that if the court accepted the plea agreement she would serve twelve years with the Department of Corrections and that no one could guarantee if or when she would be released. Again, at sentencing, the court advised Johnson that it was the decision of the Department of Corrections to determine her appropriate placement within the Department of Corrections to accommodate her guilty but mentally ill conviction and Johnson did not question that statement.
Even were we to accept Johnson's assertion that her counsel misadvised her as to the consequences of her GBMI plea, the law in this Commonwealth is clear that any misconception as to sentence can be clarified by the trial judge's explanation of a sentence during the guilty plea or sentence hearing. Indeed, in Edmonds v. Commonwealth, 189 S.W.3d 558, 568 (Ky. 2006), our Kentucky Supreme Court stated as follows:
Although a defendant should be able to rely on representations by his attorney, reliance on a statement that is flatly contradicted by subsequent statements made by that same attorney, the trial court, and the Commonwealth during the plea negotiations and the Boykin colloquy is not reasonable and does not render the plea involuntary. '[I]f the information given by the courtSub judice, the record clearly reflects Johnson's open acknowledgement that she understood the charges to which she was pleading and the accompanying sentence. Accordingly, we affirm.
at the [plea] hearing by the defendant's attorney and the defendant admits to understanding the court's advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant.' United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992). . . .
As her second basis for appeal, Johnson argues that trial counsel's advice to enter a guilty plea when the facts did not support the charges was objectively unreasonable based upon a wide range of professional norms. Specifically, she asserts that counsel failed to familiarize herself with the factual circumstances surrounding Johnson's use of a toy gun during the robbery, the number of victims present during the robbery, and the law surrounding robbery itself.
Concerning the use of a toy gun during the robbery, Johnson argues that it is unclear from the record whether anyone believed that the gun was a deadly weapon, and that based upon the plea colloquy, it seemed unlikely that a jury would have believed the gun to be real. Johnson thus asserts that counsel should not have advised her to plead guilty under that set of facts and that because counsel's reasoning as to why she should do so is not clear from the record, an evidentiary hearing is warranted.
During the course of Johnson's plea colloquy, she had the following exchange with the court:
Johnson: I was carrying a toy gun ... It had been painted.VR 08/18/2009, 09:06:22-09:07:05.
Judge: Did it appear to be a real gun to those that may not have held it or inspected it?
Johnson: Possibly.
Judge: Did it look like one of these guns that you see that shoots water or anything?
Johnson: Sort of.
Judge: Okay, uh, and you held that toy gun, is that correct?
Johnson: I did.
Judge: Did you hold that to your side, or to where other people could see it?
Johnson: To my side.
Further, Johnson argues that her counsel erred in advising her to plead guilty in light of the facts regarding the number of "victims" in the bank. While acknowledging that multiple counts of robbery can be charged based on the number of victims, Johnson argues that it is less clear regarding when someone is actually considered a victim. Johnson asserts that in her case the Commonwealth based its charges on the mere presence of individuals in the bank. She states that during the plea colloquy she was asked whether she was aware that there were other people in the bank and she said that she could not recall but did not dispute it if there were. The Commonwealth contended that this was sufficient to charge her with four counts of robbery. Johnson now argues that the mere presence of other individuals in the bank was insufficient to warrant four counts of robbery, and that in order to be so charged she must have used some kind of force or threat against them. Johnson argues that she did not understand the nature of the counts against her when she pled guilty and that an evidentiary hearing should be held to investigate whether or not she or her co-defendant came into contact with the individuals named in the indictment.
In response, the Commonwealth argues that the record refutes Johnson's allegation that a toy gun would not satisfy the elements of robbery in the first degree, and that the court correctly found that Johnson and her co-defendant were threatening to the bank employees, in light of the fact that the bank surrendered the cash to them.
Concerning Johnson's contention that her counsel was ineffective for advising her to plead guilty for four counts of robbery, the Commonwealth argues that Johnson's guilty plea relieved the Commonwealth of its responsibility to prove each element of the offense, and that her plea was entered voluntarily and with no dispute as to the number of victims - four bank employees - who were robbed in this instance. The Commonwealth argues that by pleading guilty Johnson waived the right to contest the sufficiency of the evidence and waived her right to a direct appeal.
With respect to Johnson's contention that the gun used during the bank robbery was a toy, this court finds that the trial court correctly held that whether the evidence would have been sufficient to support a conviction had the matter gone to trial is not a subject properly before us on review pursuant to RCr 11.42. Accordingly, we decline to reverse on this basis. Concerning Johnson's assertion that counsel was ineffective for advising her to plead guilty to four counts of robbery in the first degree, we agree with the court below that it is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding. Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. App. 1972). Additionally, we agree with the court that any claims as to insufficiency of the evidence to support the four counts of complicity to commit first-degree robbery were waived when Johnson pled guilty. Accordingly, we affirm.
As her third and final reason for asserting that the court erred in denying her motion without an evidentiary hearing, Johnson argues that trial counsel was ineffective for losing evidence crucial to Johnson's mental health defense. Johnson asserts that it is undisputed that her counsel lost a diary which she kept, tracking her emotions and mental states. While the trial court found that Johnson's loss of the diary did not constitute deficient performance, Johnson disagrees and asserts that her counsel should have used the loss of the diary as a basis for obtaining an independent expert, particularly in light of Dr. Noonan's report. Further, Johnson argues that had counsel not lost the journal, there is a reasonable probability that Johnson would have rejected the proffered plea and proceeded to trial because the journal bolstered her mental health defense.
In response, the Commonwealth argues that the record refutes Johnson's argument that her trial counsel lost evidence crucial to her mental health defense. The Commonwealth argues that counsel did not personally lose the diary but that it was lost sometime after Johnson arrived in prison. The Commonwealth asserts that there is no evidence to the contrary other than allegations made by Johnson. Further, the Commonwealth argues that in any event the diary did not exculpate Johnson, and that its value as evidence became moot after she pled guilty to the charge against her. Upon review of the record and applicable law, we agree.
As noted by the court below in its order denying Johnson's RCr 11.42 motion, the evidence established that Johnson's attorney gave the diary to the bailiff to be transported with Johnson to the Hardin County Detention Center. As the court noted, if the diary was lost or misplaced after that, it was not the responsibility of Johnson's attorney. Moreover, as the court correctly noted, Johnson was examined for psychiatric purposes by Dr. Noonan pursuant to Kentucky Revised Statutes 504.080. Dr. Noonan found Johnson competent to stand trial. Further, as the Commonwealth correctly noted, Johnson has failed to establish how the contents of the diary would have forced a trier of fact to conclude that she was too mentally incompetent to understand the consequences of her actions, particularly in light of her guilty plea and the report of Dr. Noonan. Finding no error, we affirm.
Wherefore, for the foregoing reasons, we hereby affirm the December 3, 2012, order of the Hardin Circuit Court denying Johnson's RCr 11.42 motion without an evidentiary hearing.
ALL CONCUR. BRIEFS FOR APPELLANT: Krista Dolan
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky