Opinion
NO. 2017-CA-000340-MR NO. 2017-CA-001555-MR
06-22-2018
J.E. TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: J.E. Taylor, 282561, pro se Kentucky State Reformatory LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Office of Criminal Appeals Office of the Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM GREEN CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 12-CR-00096 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON AND MAZE, JUDGES. COMBS, JUDGE: These consolidated appeals are from orders of the Greene Circuit Court denying Appellant's motion for relief filed pursuant to RCr 11.42 and denying his motion to modify his sentence.
Kentucky Rules of Criminal Procedure.
On December 5, 2012, a Green County grand jury indicted the Appellant, J.E. Taylor (Taylor), on 468 counts of incest, 468 counts of first-degree sodomy, one count of first-degree rape, and 468 counts of first-degree sexual abuse.
In December 2015, Taylor was tried on a reduced number of counts. The jury found him guilty of four counts of incest and recommended a sentence of five years on each count to be served concurrently with one another for a total of five years. On March 9, 2016, the trial court entered Judgment and Sentence and set counts one through three to run concurrently with one another but consecutively as to count four (five years) for a total of ten years.
On May 4, 2016, the trial court conducted a hearing to address some remaining issues in the case. His counsel explained that Taylor had abandoned his right to appeal in return for the Commonwealth's agreement to dismiss the numerous remaining charges in all the other cases -- including those sent to Adair County. The parties executed an agreed order. Taylor was then placed under oath and was questioned by the court. Taylor affirmed that he had signed the agreed order and that the remaining charges were to be dismissed with a stipulation of probable cause. Additionally, he acknowledged that there was some basis to bring the charges, that he had entered into the agreement freely and voluntarily with the advice of his attorney, that it was his desire to do so, and that he had had all the time he needed to think about his decision.
On January 17, 2017, Taylor, pro se, filed a motion pursuant to RCr 11.42 alleging ineffective assistance of counsel. Taylor alleged as follows:
Trial counsel was ineffective for coer[c]ing him to forego his appeal of [r]ight by placing him under duress and [d]irect [t]hreat of conviction by having the case overturned if an appeal succeeded. Thereby - voiding the [a]ttorney-[c]lient relationship in violation of the U.S. Constitution, placing Mr. Taylor in a situation to forego his [a]ppeal of [r]ight.(Underline original). Taylor also filed a motion requesting an evidentiary hearing and appointment of counsel on his RCr 11.42 motion.
Counsel failed to investigate the case and only based the defense on the Commonwealth case and evidence without conducting an independent investigation, and gathering of evidence.
Counsel failed to confront the accusers in [t]his case and failed to provide a direct examination of all the Commonwealth witnesses.
Counsel used movant's family members [t]o help coerce movant into foregoing his [a]ppeal as of [r]ight, by influencing the family with false advice.
Counsel failed to bring defense where victims and family members brought charges and allegations in an attempt to get movant out of the picture to obtain his property and land.
A January 17, 2017, docket sheet order reflects that the court set Taylor's motion for appointment of counsel for a hearing on February 1, 2017, at which time his motion for evidentiary hearing would also be addressed.
On February 1, 2017, Taylor appeared at the hearing pro se. The court denied his motion for appointment of counsel and allowed Taylor to speak to his motion in general. Taylor explained that he felt that trial counsel did not do his job and that he did not get a fair deal. The court advised that from its review of the motion, Taylor had essentially raised three grounds: (1) that he withdrew his appeal under duress, (2) that he felt the case was not adequately investigated, and (3) that the witnesses were not properly cross-examined. Taylor responded, "Exactly." The trial court's Order entered February 3, 2017, provides in relevant part as follows:
The motion ... for appointment of counsel is DENIED. This court presided over the Defendant's divorce action .... Pursuant to the Decree of Dissolution of Marriage entered December 9, 2016, this Defendant was awarded a one-half interest in 218 acres of land[,] .... a marital interest in numerous personal items, farm equipment and cattle and ... the first $18,006.78 from the sale of marital assets. The above Defendant had private counsel in the divorce action. Accordingly, this Defendant is far from indigent and does not qualify for appointment of counsel....
The Court has reviewed the Defendant's motion and did of course preside over the Defendant's trial. This Court has never seen better cross-examination than was employed by Defendant's counsel. Furthermore, defense counsel called numerous witnesses on behalf of the Defendant and adequately investigated this action.
Contrary to the Defendant's argument, he was not forced to withdraw his appeal. This Court extensively went over the Defendant's options in open court and the Defendant made a knowing and voluntarily waiver of his right to appeal. The Court notes that in return for the Defendant waiving his right to appeal, the Commonwealth agreed to dismiss all other charges against him, and further agreed to not seek a potential indictment for allegations which would have occurred in Adair County, Kentucky.
The Court found that Taylor's motion "was completely without merit[,]" that defense counsel acted in accordance with "prevailing norms based upon an objective standard of reasonableness pursuant to Strickland v. Washington[,]" and that the record conclusively demonstrated that Taylor's claims did not warrant an evidentiary hearing.
On February 22, 2017, Taylor, pro se, filed a Notice of Appeal to this Court from the trial court's February 3, 2017, Order denying his motion for RCr 11.42 relief. That appeal is No. 2017-CA-000340.
On July 24, 2017, Taylor, pro se, filed a motion for modification and restoration of the original sentence recommended by the jury. By docket sheet Order entered August 4, 2017, the court denied that motion upon finding Taylor also filed a Motion to proceed in forma pauperis and for appointment of counsel. By Order entered August 29, 2017, the trial court denied that motion having found that Taylor is not indigent, noting that on June 28, 2017, he and his counsel received a check in the amount of $104,390.04 pursuant to the decree of dissolution.
On September 7, 2017, Taylor, pro se, filed a Notice of Appeal to this Court from the August 4, 2017, order denying his motion for modification. That appeal is No. 2017-CA-001555.
On March 7, 2018, this Court granted the Commonwealth's motion to consolidate to the extent that the appeals shall be considered by the same panel upon completion of briefing in both appeals.
We first address the issues Taylor raised in No. 2017-CA-000340, the appeal from the denial of his RCr 11.42 motion.
When a claim of ineffective assistance of counsel is raised, the standard of review is a two-pronged test. "First, the defendant must show that the counsel's performance was deficient.... Second, the defendant must show the deficient performance prejudiced the defense." Gall v. Commonwealth, Ky., 702 S.W.2d 37, 39 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant has a heavy burden in proving that trial counsel's performance was ineffective or unreasonable. Adding to this burden is the presumption that counsel's conduct falls within the acceptable range of reasonable and effective assistance of counsel, as guaranteed by the Constitution.Humphrey v. Commonwealth, 962 S.W.2d 870, 873 (Ky. 1998).
Taylor contends that the trial court denied him "a fair opportunity to have his [i]neffective [a]ssistance of [c]ounsel claims determined with evidentiary proceedings being held [i]n violation of Fraser v[.] Commonwealth and Strickland v. Washington." (Underline original). Taylor recites boilerplate law, followed by a discussion of the "instant case" in which Taylor explains that he made several claims of ineffective assistance of counsel in his motion filed pursuant to RCr 11.42.
RCr 11.42(2) provides in relevant part that "[t]he motion ... shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion." The claims of ineffective assistance of counsel in Taylor's motion are conclusory and vague. "Conclusionary allegations which are not supported with specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of discovery." Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "Vague allegations, including those of failure to investigate, do not warrant an evidentiary hearing and warrant summary dismissal of the RCr 11.42 motion." Mills v. Commonwealth, 170 S.W.3d 310, 330 (Ky. 2005), overruled on other grounds by Leonard v. Commonwealth, id. Accordingly, the trial court did not err in denying Taylor's motion without conducting an evidentiary hearing.
For his second argument, Taylor contends that he was denied the right to appeal because trial counsel had advised him to forego an appeal or be subject to a "harsher penalty" by the judge. He articulates this claim in his heading. However, the argument in the brief itself does not conform to the heading; rather, it appears to have been taken from another case involving a different issue. We note that at page 13 of his brief, Taylor states that "[i]n the present case, Blankenship requested that his case be appealed ...." (Emphasis ours).
In the case before us, the court determined that Taylor made a knowing and voluntary waiver of his right to appeal "in return for [which] ... the Commonwealth agreed to dismiss all other charges against him, and further agreed to not seek a potential indictment for allegations which would have occurred in Adair County, Kentucky." We are satisfied from our review of the record that the evidence supports the trial court's determination.
For his third argument, Taylor contends that the trial court violated his right to a fair trial when it allowed the testimony of a witness, Jessica Manning, pursuant to KRE 404(b). That issue was not raised in Taylor's RCr 11.42 motion and thus it is not properly before this Court. We decline to address it. Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky. App. 1996) ("To the extent his arguments to this court differ from those presented in the circuit court, we will not address them."). Nor will we address issues such as this which should have been raised on direct appeal. Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990) ("It is an established principle that this Court [Court of Appeals] will not address an issue ... which should have been raised in a direct appeal.").
Kentucky Rules of Evidence.
KRE 404(b) provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
For his fourth argument, Taylor contends that the trial court violated his rights when it increased his sentence. That issue was not raised in his RCr 11.42 motion and is not properly before the Court in this appeal. However, Taylor also raises that issue in No. 2017-CA-001555-MR, the appeal from the denial of his motion for modification, which we now address.
Taylor asserts that the trial judge "acted with [b]ias and with disregard for justice in taking the charge from the jury and changing the sentence to ten years, violating Appellant's [c]onstitutional rights." Although Taylor makes the conclusory statement that the trial court acted "improperly and abused its discretion," he fails to explain how the trial court erred in denying his motion. Taylor asks that we remand the case to the trial court with direction to restore the jury's original sentence.
We agree with the Commonwealth that no error occurred. The "trial court has the discretion to decline to follow a jury's recommendation regarding whether a sentence should be served concurrently or consecutively ...." Benet v. Commonwealth, 253 S.W.3d 528, 535 (Ky. 2008).
We affirm the Orders of the Green Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: J.E. Taylor, 282561, pro se
Kentucky State Reformatory
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Beckett
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
Frankfort, Kentucky