Opinion
NO. 2017-CA-000625-MR
08-03-2018
ERSTIL O'BRIEN SHECKLES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erstil O'Brien Sheckles, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT COSTANZO, JUDGE
ACTION NO. 12-CR-00175 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JONES, AND NICKELL, JUDGES. JONES, JUDGE: Appellant, Erstil O'Brien Sheckles, brings this pro se appeal challenging the Bell Circuit Court's denial of his RCr 11.42 motion. After careful review, we AFFIRM.
Kentucky Rules of Criminal Procedure.
I. BACKGROUND
In May of 2012, Sheckles called the Middlesboro Police Department and informed them that his then-girlfriend, Tammy Baker, was severely injured and had been struck by a vehicle. When the police and EMS arrived at Sheckles's residence, Baker was unconscious and appeared to have two broken legs, two broken arms, and a fractured skull. Baker was taken to the hospital in critical condition. After the police were able to obtain a statement from Baker, Sheckles was arrested and cited with attempted murder. Sheckles was ultimately indicted on a charge of assault in the first degree under KRS 508.010(b).
Kentucky Revised Statutes.
A copy of the indictment against Sheckles is not included in the record before this Court. The circuit court's order denying Sheckles's motion for RCr 11.42 relief indicates that this was the charge reflected in the indictment. "When the record is incomplete, this Court must assume that the omitted record supports the trial court." Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008) (citing Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985)).
A jury trial was originally set for March 12, 2013, but was continued several times and ultimately set for October 29, 2013. While awaiting the jury trial, the Commonwealth filed three notices of intent to introduce evidence pursuant to KRE 404(b). These notices indicated that the Commonwealth would call Brenda Tigue, Patty Mills, and Bryan Bogucki to testify that they had heard Sheckles make threats to Baker prior to the May 18, 2012 incident and would call Baker to testify that Sheckles had threatened her on the night of the assault. Additionally, the Commonwealth filed an inventory of the discovery it had provided to Sheckles's trial counsel. Included in that list were witness statements from Baker, Sheckles, Mills, Tigue, Bogucki, and Bobby McVey.
Kentucky Rules of Evidence.
On the October 29, 2013, trial date Sheckles entered an Alford plea to one count of first-degree assault instead of proceeding to trial. During the plea colloquy, Sheckles acknowledged that he was making the plea freely and voluntarily, and that it was what he wished to do. When asked whether he was satisfied with the advice of his attorney, Sheckles first responded "yes and no." Sheckles explained that he did not feel like his attorney "had enough time to get through it," but that he would do what his attorney thought was best. At this time, Sheckles's trial counsel told Sheckles that she had previously explained to him that it was his choice whether to enter the plea, and that if he did not wish to do so they would proceed to trial. Counsel again reiterated that entering a plea was Sheckles's decision, not hers. Sheckles then stated that he believed his attorney had made herself clear and answered affirmatively to the trial court's question of whether he was satisfied with his attorney's advice. Sheckles acknowledged that he had reviewed the evidence against him, understood what entering the Alford plea meant, and again stated that he was making the plea freely and voluntarily. Sheckles was ultimately sentenced to fifteen years' imprisonment.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
In November of 2014, Sheckles moved, pro se, to vacate his sentence and judgment of conviction under RCr 11.42 for ineffective assistance of counsel. Additionally, Sheckles filed a memorandum of law in support of his RCr 11.42 motion and a motion for an evidentiary hearing. On March 10, 2015, the trial court denied Sheckles's motion because the supporting memorandum, in which the bulk of Sheckles's legal arguments were made, had not been properly verified in accordance with RCr 11.42(2). Sheckles obtained counsel and filed a motion to reconsider. The trial court denied the motion to reconsider; however, it stated that the denial of Sheckles's RCr 11.42 motion was without prejudice.
Sheckles filed a second RCr 11.42 motion, again asserting ineffective assistance of counsel, on November 7, 2016. In his motion and incorporated memorandum of law, Sheckles alleged two different ways in which his counsel had been ineffective. First, Sheckles contended that trial counsel had failed to conduct any investigation into the allegations against Sheckles. Specifically, Sheckles alleged that trial counsel had only met with him in a one-on-one setting once, during which time Sheckles had informed counsel of his version of the events that occurred on May 18, 2012. Sheckles alleged that trial counsel had failed to investigate and interview witnesses that Sheckles had named and that the Commonwealth had listed in their discovery records. Sheckles's motion argued that trial counsel should have interviewed Baker, Bogucki, or McVey, as all three had made statements that would either support his version of the events or cast doubt on the Commonwealth's theory of the case against him. Additionally, Sheckles contended that counsel had failed to inform him of the elements of the charge he pleaded to. Accordingly, Sheckles argued that his plea had not been made voluntarily. Sheckles again requested an evidentiary hearing on his RCr 11.42 motion.
The trial court denied Sheckles's RCr 11.42 motion, without conducting an evidentiary hearing, on March 10, 2017. Concerning Sheckles's claim that counsel's failure to interview witnesses amounted to ineffective assistance of counsel, the trial court found that a totality of the circumstances indicated that Sheckles had made his Alford plea voluntarily and underwent no further analysis of the claim. Additionally, the trial court found that Sheckles's claim that he had been unaware of the elements of the charge against him was meritless, as Sheckles had acknowledged that he had reviewed the indictment, which stated the elements for his charge, in his motion to enter the Alford plea.
This appeal followed.
II. STANDARD OF REVIEW
We review a trial court's ruling on an RCr 11.42 motion for abuse of discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998) (citing Graves v. Winer, 351 S.W.2d 193 (Ky. 1961)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
III. ANALYSIS
On appeal, Sheckles contends that the trial court abused its discretion in failing to hold an evidentiary hearing on his RCr 11.42 motion and in denying him relief on his ineffective assistance of counsel claims. "Deciding a motion for relief from a judgment under [RCr] 11.42 for ineffective assistance of trial counsel requires the trial court to conduct an evidentiary hearing only when there is 'a material issue of fact that cannot be determined on the face of the record.'" Commonwealth v. Searight, 423 S.W.3d 226, 228 (Ky. 2014) (quoting Wilson v. Commonwealth, 975 S.W.2d 901, 904 (Ky. 1998)). "And this Court has consistently held that a hearing is not necessary when a trial court can resolve issues on the basis of the record or when 'it determines[s] that the allegations, even if true, would not be sufficient to invalidate [the] convictions.'" Id. (quoting Wilson, 975 S.W.2d at 904).
In order to prove ineffective assistance of counsel when a guilty plea has been entered, the defendant is required to make two showings:
(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.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (citing Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1987)). When, as is the case here, the defendant has entered an Alford plea, the analysis is the same. See Kruse v. Commonwealth, 704 S.W.2d 192, 196 n.1 (Ky. 1985) ("The legal effect of an 'Alford plea' is the same as with any plea of guilty."). On review, we must employ a strong presumption that counsel's performance was effective. Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (citing Strickland v. Washington, 446 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984)).
Sheckles makes two contentions regarding the effectiveness of his trial counsel. He alleges that his counsel failed to conduct an investigation into the claims against him, as she failed to investigate and interview certain witnesses before advising him to enter the Alford plea. Additionally, Sheckles contends that counsel failed to inform him of the elements the Commonwealth was required to prove to successfully prosecute him for assault in the first degree. As he contends that he was unaware of the elements of the crime with which he was charged, Sheckles argues that he did not make his plea knowingly.
Sheckles's memorandum to the trial court in support of his RCr 11.42 motion summarizes statements two witnesses gave to the police during the investigation surrounding Baker's injuries. In his memorandum, Sheckles contended that his trial counsel should have interviewed a neighbor, Bryan Bogucki, who saw Baker the night before Baker's injuries were reported to the police. Sheckles states that Bogucki told the police that when he saw Baker, the only injuries she had were bruises on her neck and arms. Sheckles also contended that trial counsel should have interviewed Bobby McVey, who had allegedly informed the police that the night before Baker's injuries were reported he saw Baker arguing with another female in Sheckles's driveway and then saw a blue car drive out of the driveway at a high rate of speed. Sheckles contends that McVey's statement supports his theory that Baker was injured when she was struck by a vehicle.
In his brief to this Court, Sheckles has attached a copy of Bogucki's statement. While it does state that Bogucki only observed bruising on Baker's neck and arms and choke marks on Baker's neck, it also states that he heard Sheckles threaten to kill Baker and beat her to death. A copy of this statement is not a part of the trial court's record.
In the trial court's order denying Sheckles's RCr 11.42 motion, the trial court's analysis on Sheckles's claim that trial counsel failed to investigate the claims against him relies exclusively on Sheckles's plea colloquy. A review of the plea colloquy indicates that it fully complied with the requirements of Boykin. While Sheckles initially wavered on whether he was satisfied with his counsel's advice, he ultimately answered each question posed to him by the trial court affirmatively. However, "while such pronouncements in open court raise a strong presumption that counsel's assistance was constitutionally sufficient, that presumption may be overcome." Robbins v. Commonwealth, 365 S.W.3d 211, 214 (Ky. App. 2012) (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)
"Counsel has a duty to conduct a reasonable investigation, including defenses to the charges." Id. (citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). "A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct." Id. (quoting Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)) "The reasonableness of counsel's investigation depends on the circumstances of the case." Hodge, 68 S.W.3d at 344 (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Even if it is determined that counsel did not conduct a reasonable investigation, we must further determine whether that failure prejudiced the defendant. Whether prejudice occurred "depend[s] on the likelihood that discovery of the evidence would have led counsel to change [her] recommendation as to the plea." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
We can find no error in the trial court's determination that an evidentiary hearing was unnecessary. Sheckles has not made any affirmative showing that, had counsel investigated in the manner he wished her to, she would not have recommended entering an Alford plea. As noted supra, n.6, the statement made by Bogucki is, in fact, highly prejudicial to Sheckles and we are unsure of why Sheckles believes further investigation into the details of this statement would have aided his defense. Further investigation into the statement made by McVey might have led to additional witnesses and/or evidence pointing to a different perpetrator of Baker's injuries. However, Sheckles has not specifically alleged any additional information that trial counsel would have gleaned from interviewing McVey that would have aided the defense of the case against him. "RCr 11.42 exists to provide the movant with an opportunity to air known grievances, not an opportunity to conduct a fishing expedition for possible grievances, and post-conviction discovery is not authorized under the rule." Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005), overruled on other grounds by Leonard, 279 S.W.3d 151 (footnote omitted). Sheckles offers only speculative thoughts that further investigation would have led to a successful defense of the case against him. Mere speculation is insufficient to show that, but for trial counsel's failure to investigate, Sheckles would not have entered his Alford plea. This is especially true in light of the amount of incriminating evidence the Commonwealth had against Sheckles.
Sheckles additionally argues that counsel failed to inform him of the elements of the offense with which he was charged. He contends that he has since become aware of the required elements and now believes that the Commonwealth would have been unable to successfully prosecute him for assault in the first degree. Sheckles's motion to enter his Alford plea includes an acknowledgment that he reviewed a copy of the indictment against him and discussed the charge he faced with counsel. R. 81. The trial court's order denying Sheckles's RCr 11.42 motion indicates that the indictment adequately set forth all the elements of KRS 508.010(1)(b), the offense with which Sheckles was charged. See supra n.3. Accordingly, we agree with the trial court that there was sufficient evidence in the record to refute this claim and that Sheckles was not entitled to an evidentiary hearing on it.
IV. CONCLUSION
In light of the foregoing, we affirm the order of the Bell Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Erstil O'Brien Sheckles, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky