Opinion
NO. 2015-CA-000585-MR
04-15-2016
NEWELL STACY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Newell Stacy Eddyville, Kentucky BRIEF FOR APPELLEE: Perry T. Ryan Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 10-CR-00037 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND VANMETER, JUDGES. DIXON, JUDGE: Appellant, Newell Stacy, appeals pro se from an order of the Boyle Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42. Finding no error, we affirm.
On August 21, 2009, a riot broke out at the Northpoint Training Center, a prison facility in Burgin, Kentucky. During the riot, inmates set fire to buildings, tore down fences and threw rocks and other items at correctional officers. Correction Officer Tim Peavyhouse observed Appellant attempting to break into the multipurpose center door using a concrete slab. Being unsuccessful in breaking into the door, Appellant broke some of the windows, lit toilet paper on fire, and threw it inside the building. He also set fire to a trashcan and threw it on top of the roof of the building. This, along with fires set by other inmates, eventually led to the destruction of the multipurpose building.
A Boyle County grand jury indicted Appellant for first-degree arson, first-degree riot, and being a first-degree persistent felony offender (PFO). After a jury trial in which Appellant was represented by the Department of Public Advocacy, he was found guilty of first-degree riot and first-degree PFO. The jury hung on the charge of first-degree arson. The Boyle Circuit Court entered a judgment against Appellant, sentencing him to a total of twenty years' imprisonment. He thereafter appealed, as a matter of right and the Kentucky Supreme Court affirmed the judgment of the trial court. Stacy v. Commonwealth, 396 S.W.3d 787 (Ky. 2013).
In August 2013, Appellant filed a motion in the trial court styled "Motion for Vacatur." Therein, Appellant alleged various errors of both trial and appellate counsel. Because the motion's style was a manner not recognized by Kentucky courts, the trial court construed it as a motion to vacate under CR 60.02. Therefore, the trial court denied the motion, finding that the issue of whether trial counsel had a conflict had been raised and decided on direct appeal, and that CR 60.02 was not the appropriate avenue in which to attack ineffective assistance of trial counsel and/or appellate counsel. Appellant thereafter appealed to this Court. In an unpublished opinion, we reversed the trial court and remanded the matter for consideration of Appellant's ineffective assistance of counsel arguments under the RCr 11.42 standard. Stacy v. Commonwealth, 2013-CA-1884 (November 14, 2014). On remand, the trial court considered Appellant's motion under the standards set forth in RCr 11.42, but again denied relief. Stacy appeals to this Court as a matter of right.
In an RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right that would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). An evidentiary hearing is warranted 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, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049 (1994); RCr 11.42(5). See also Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026 (1999). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). However, when the trial court conducts an evidentiary hearing, the reviewing court must defer to the determinations of fact and witness credibility made by the trial judge. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986); Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996); McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996).
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the standards which measure ineffective assistance of counsel claims. In order to be ineffective, performance of counsel must fall below the objective standard of reasonableness and be so prejudicial as to deprive a defendant of a fair trial and a reasonable result. Id. "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992), cert. denied, 508 U.S. 975 (1993). Thus, the critical issue is not whether counsel made errors, but whether counsel was so "manifestly ineffective that defeat was snatched from the hands of probable victory." Id .
In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the trial court or jury and assess the overall performance of counsel throughout the case in order to determine whether the alleged acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. Strickland; see also Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 302 (1986). A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance. McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert. denied, 521 U.S. 1130 (1997). The Supreme Court in Strickland noted that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Appellant first argues that his trial counsel was ineffective because counsel (1) had an inherent conflict of interest; (2) failed to advocate Appellant's pretrial motions to the court, namely a motion for a speedy trial; (3) obstructed Appellant's ability to obtain all discovery; and (4) failed to contact witnesses that possessed exculpatory evidence. We disagree.
Appellant first claims that his trial counsel's representation of him and several other Northpoint inmates involved in the same prison riot was a conflict of interest. However, as the trial court noted, this issue was resolved by the Kentucky Supreme Court on direct appeal, wherein the Court concluded,
Appellant also asserts that his Sixth Amendment right to effective assistance of counsel was violated because he was represented by counsel who had a conflict-of-interest. Specifically, Appellant argues that his counsels' joint representation of him and several others charged with crimes arising out of the Northpoint prison riot amounted to reversible error. Appellant further argues that the trial court violated RCr 8.30 and that this violation is a reversible error as well.
According to Appellant, he was represented by several attorneys from the Department of Public Advocacy over the course of his defense. At his arraignment, Appellant was represented by DPA Attorney Susanne McCollough. At a later status conference, he was represented by DPA
Attorney Elizabeth Kidd. At a subsequent preliminary hearing, Appellant was represented by DPA Attorney Stacy Coontz. Several months later at his trial, Appellant asserts he was represented by McCollough, Kidd, and DPA Attorney Leslie Ayers. According to Appellant, these attorneys also represented several other defendants who were being tried for crimes arising out of their participation in the riot.
After review, we disagree with Appellant for two reasons. First, Appellant has failed to show that a cognizable Sixth Amendment violation exists because he was represented by other defendants' counsel. Second, Appellant has failed to show prejudice in order to establish a reversible RCr 8.30 violation.
. . .
The Sixth Amendment provides that a criminal defendant shall have the right to the "Assistance of Counsel for his defence." U.S. Const. amend. VI. This right includes "the right to effective assistance of counsel," Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and effective assistance "includes the right to representation free from conflicts of interest." Rubin v. Gee, 292 F.3d 396, 401 (4th Cir. 2002) (citing Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)).
Appellant's claim, is of course, an ineffective assistance of counsel claim. However, "[a]s a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal ... because there is usually no record or trial court ruling on which such a claim can be properly considered." Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998) (citing Caslin v. Commonwealth, 491 S.W.2d 832 (Ky. 1973)). "This is not to say, however, that a claim of ineffective assistance of counsel is precluded from review on direct appeal, provided there is a trial record, or an evidentiary hearing is held on motion for a new trial, and the trial court rules on the issue." Humphrey, 962 S.W.2d at 872-73 (citing Hopewell v. Commonwealth, 641 S.W.2d 744 (Ky.
1982); Wilson v. Commonwealth, 601 S.W.2d 280, 284 (Ky. 1980)).Id. at 792-93. As this issue was conclusively resolved on direct appeal, we will not address it further herein.
[W]e find that there is nothing present in the record which would "establish that an actual conflict of interest adversely affected [Appellant's] lawyer's performance." Sullivan, 446 U.S. at 350, 100 S.Ct. 1708. Appellant's bare assertion that a conflict did in fact exist because his lawyers represented other Northpoint defendants does not establish that counsel's performance was adversely affected. Contrary to Appellant's assertion, joint or multiple representation "is not per se violative of constitutional guarantees of effective assistance of counsel." Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). "[I]ndeed, in some cases, certain advantages might accrue from joint representation" such as "insuring against reciprocal recrimination." Id. (citing Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).
We likewise find no merit in Appellant's claim that his trial counsel failed to advocate his motion for a speedy trial. Appellant makes the bald assertion that his counsel knew he wanted a speedy trial yet did nothing to protect his rights. As the trial court noted in its motion denying RCr 11.42 relief, Appellant claims that he filed a pro se motion on May 2, 2011, asserting his speedy trial rights. However, the trial court, after reviewing the record and being unable to locate Appellant's motion, found that there was no evidence that his motion was ever made. In fact, neither the Circuit Clerk, Commonwealth's Attorney, nor Appellant's attorney received a copy of Appellant's alleged motion. Further, prison records failed to establish that any correspondence was mailed by Appellant on May 2, 2011. As a result, the trial court held that Appellant first asserted his speedy trial rights on August 5, 2011, the date Appellant's counsel filed a motion for a speedy trial. Appellant's trial began on November 28, 2011, which was well within the 180-day time period required by KRS 500.110.
Further, as the Court noted on direct appeal, from his arraignment until trial, Appellant insisted on being involved in the defense of his case and filed "an abundance of motions" that had to be disposed of before trial:
While simultaneously pursuing his motion for a speedy trial, Appellant filed two subsequent motions requesting additional discovery, a motion for access to the crime scene, and a motion for a Faretta hearing. At the Faretta hearing, Appellant decided to withdraw this motion and retain appointed counsel. While Appellant is entitled to file these motions, the trial court must have sufficient time to dispose of them before trial.396 S.W.3d at 797. We find nothing in the record to support Appellant's claim that trial counsel failed to protect his right to a speedy trial.
Appellant next argues that trial counsel failed to ensure that he received all discovery. Appellant claims that initially he was provided a complete preliminary copy of discovery but Kentucky State Police thereafter seized it and refused to return such to him. Appellant contends that trial counsel, operating under a conflict, refused to argue for the return of the discovery documents and permitted at least one exculpatory document to be excluded from presentation to the jury. We disagree.
The record reveals that on October 25, 2010, Appellant moved the trial court for access to the Department of Correction's (DOC) Internal Report, which was composed as a result of the riot. The Internal Report was kept confidential by the DOC, but two documents that were based on the report—the Commissioner's Report and the report prepared by the DOC for the House Judiciary Committee ("the House Judiciary Committee Report")—were available to the public. Appellant sought to obtain the Internal Report and all documents used for its preparation. However, citing security concerns, the DOC requested a protective order prohibiting the Internal Report's production.
On January 3, 2011, the trial court conducted a hearing to determine what Appellant would be permitted to discover. The trial court concluded that Appellant was entitled to the House Judiciary Committee Report and additional discovery from the Internal Report that related to the officers that intended to testify against the defendants involved in the riot. As a result of the trial court's ruling, the Commonwealth and defense attorneys worked together to uncover 1,500 pages of additional discovery that was produced a few months later.
Nevertheless, Appellant takes issue with the fact that he did not receive an incident report allegedly filed by Shannon Ragsdale, a corrections officer, wherein she stated that she observed multiple inmates trying to set fire to the multipurpose room. Appellant argues that had trial counsel produced this document he could have impeached another officer who stated that he observed only Appellant attempting to set the fire. However, as the trial court herein concluded, Appellant failed to present evidence that the incident report actually existed and, even if it did, Appellant's claim of what it contained was nothing other than a statement of another witness who was located at a different vantage point during the riots.
Regardless of whether the report did, in fact, exist, Appellant has failed to demonstrate that trial counsel in any manner thwarted his attempts to obtain it. It appears from the record that defense counsel and the Commonwealth worked extensively to produce a large amount of discovery, and that Appellant was afforded more than sufficient time to review all of the documents. We fail to perceive how trial counsel rendered ineffective assistance in this regard.
Finally, Appellant's last claim of ineffective assistance of trial counsel is based upon counsel's alleged failure to call as witnesses the entire list of people provided by Appellant. However, as trial court stated in its order, Appellant failed to name the witnesses he believed should have been called or articulate how their testimony would have altered the outcome of the trial. Without such evidence, we agree with the trial court that decisions regarding the calling of witnesses fall squarely within the realm of trial strategy and we find no ineffective assistance of counsel in this regard. Brown v. Commonwealth, 253 S.W.3d 490 (Ky. 2008); Robbins v. Commonwealth, 365 S.W.3d 211 (Ky. App. 2012).
Next, Appellant argues that he was denied effective assistance of appellate counsel. Specifically, he contends that appellate counsel was operating under a statutory conflict and, as a result, failed to properly argue his "dead-bang winning claims" regarding trial counsel's conflict under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) and his denial of a speedy trial under Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011).
In Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010), our Supreme Court for the first time recognized a claim under RCr 11.42 for ineffective assistance of appellate counsel premised upon appellate counsel's alleged failure to raise a particular issue on direct appeal. However, the Court emphasized that such a claim,
will not be premised on inartful arguments or missed case citations; rather counsel must have omitted completely an issue that should have been presented on direct appeal. . . . Finally, the defendant must also establish that he or she was prejudiced by the deficient performance, which, as noted, requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded.Id. at 437. (Citations omitted).
Appellant concedes that appellate counsel raised these issues on direct appeal but nevertheless claims that counsel did not argue them as "artfully" as he should have. We find no merit in this argument. We further agree with the trial court that the cases cited by Appellant are distinguishable from the instant case. Clearly, the Supreme Court on direct appeal thoroughly addressed both the conflict issue and the speedy trial issue and determined that neither warranted reversal of Appellant's conviction. Accordingly, we conclude that Appellant failed to demonstrate that his appellate counsel omitted an issue on appeal and absent counsel's deficient performance there was a reasonable probability that the appeal would have succeeded. Id.
For the reasons set forth herein, we affirm the order of the Boyle Circuit Court denying Appellant's motion for post-conviction relief pursuant to RCr 11.42.
ALL CONCUR. BRIEF FOR APPELLANT: Newell Stacy
Eddyville, Kentucky BRIEF FOR APPELLEE: Perry T. Ryan
Frankfort, Kentucky