Opinion
NO. 2012-CA-000381-MR
09-05-2014
DAVID TOLLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David Tolle Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 07-CR-00027
OPINION
AFFIRMING
BEFORE: COMBS, NICKELL, AND STUMBO, JUDGES. NICKELL, JUDGE: David Tolle, pro se, appeals the Bracken Circuit Court's denial of his motion for post-conviction relief pursuant to RCr 11.42 following an evidentiary hearing. For the following reasons, we affirm.
Kentucky Rules of Criminal Procedure.
Following a jury trial, Tolle was convicted of several sexual offenses perpetrated against his minor step-daughter and was sentenced to a total of twenty- years' imprisonment. His convictions and sentence were affirmed on direct appeal to the Supreme Court of Kentucky. His petition for a writ of certiorari was denied by the United States Supreme Court. On April 21, 2011, Tolle filed a pro se motion for post-conviction relief advancing thirty-eight separate arguments. Tolle was represented by counsel at the evidentiary hearing convened on November 16, 2011. The trial court entered its order denying the motion on February 1, 2012, after receiving briefs from the parties. This appeal followed.
Tolle v. Commonwealth, 2008-SC-000345-MR, 2009 WL 4251726 (November 25, 2009, unpublished).
Tolle now advances four allegations of error in seeking relief. First, he contends the trial court improperly limited the evidentiary hearing to only six of the thirty-eight issues raised in Tolle's motion. Second, he argues his trial counsel was ineffective in failing "to object, investigate, call witnesses, or seek any experts" and the trial court erred in not so concluding. Next, Tolle contends the trial court abused its discretion in failing to find the Supreme Court of Kentucky's amendments to RCr 7.24 on January 1, 2011, should be applied retroactively to his case. Finally, Tolle argues his convictions of multiple sex crimes constituted violations of "the Double Jeapordy (sic) provisions of both the Federal and State Constitutions." After a careful review of the record, the briefs, and the law, we discern no error and affirm.
Tolle first argues the trial court improperly limited the evidentiary hearing to only six of the issues raised in his RCr 11.42 motion. He believes he was, therefore, denied his right to a full and fair hearing. However, even a cursory review of the record reveals Tolle's contention is wholly without merit.
At the beginning of the hearing, Tolle's counsel addressed the trial court and indicated his belief there were six areas of inquiries or issues he intended to address. Counsel then outlined those six areas of contention in some detail. After clarification of those issues was sought by the Commonwealth, the trial court asked Tolle's counsel "[a]re we limiting then to these six issues that you brought up? Is that correct?" Counsel agreed that was his intention. Tolle voiced no concern and made no objection to counsel's decision. Nowhere in the record is there any indication the trial court requested or influenced the limitation of issues. Clearly, any such limitation originated from Tolle's counsel—in Tolle's presence and on his behalf—and the record simply does not support Tolle's contention the trial court denied him a full and fair hearing. There was no error.
Tolle next alleges the trial court erred in rejecting his numerous allegations regarding the ineffectiveness of his trial counsel. Tolle makes a generalized and unsupported statement that counsel "failed to properly investigate, to call witnesses for the defense, to secure expert testimony, and to object to Bolstering (sic) improper submission of evidence," and these failures cannot be attributed to trial strategy. He then recites basic legal theories regarding these types of failures indicating they can be classified as or indicative of ineffective assistance of counsel. However, Tolle fails to indicate how these statements relate to the trial court's ruling in his case in any way. Bald assertions, lacking any evidentiary support and deficient in legal and logical reasoning, carry no weight and form an insufficient basis for relief. With no factual or legal basis presented, we are loath to create an argument for a party and will not practice the case for them. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. 1979).
Nevertheless, we have examined the record and found the trial court specifically addressed and rejected each of Tolle's claims of ineffectiveness. The trial court utilized the correct legal standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (accord Gall v. Commonwealth, 4702 S.W.2d 37, 39 (Ky. 1985)), in analyzing each of Tolle's claims and determined he had failed to carry his burden of proving deficient performance and/or prejudice as required under that guidance. In doing so, the trial court recited the factual basis upon which it relied in reaching its conclusion as to each allegation of ineffective assistance. Our review of the record indicates the trial court's factual determinations were not clearly erroneous as they were supported by substantial evidence, CR 52.01, and its legal conclusions do not constitute an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Thus, we will not disturb the trial court's ruling.
Kentucky Rules of Civil Procedure.
Third, Tolle contends the trial court erroneously concluded amendments made to RCr 7.24 could not apply retroactively to his case. He believes this decision constituted an abuse of discretion. Again, we disagree.
It is well-established that changes to the criminal rules are not retroactive to cases that have reached finality. Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). To hold otherwise would "vitiate the finality of judgments in that each change in the law would allow or require relitigation of the facts and the law in every case." Berry v. Commonwealth, 322 S.W.3d 508, 511 (Ky. App. 2010). Here, Tolle's convictions were affirmed by our Supreme Court on December 16, 2009, and his petition for a writ of certiorari was denied on April 19, 2010, thereby making the Supreme Court of Kentucky's opinion final. Nearly nine months later, RCr 7.24 was amended on January 1, 2011. Thus, the amended provisions could not apply to Tolle's case as the trial court correctly concluded. Leonard.
Finally, Tolle alleges his conviction of multiple sexual offenses constitutes a violation of his Constitutional double jeopardy protection. He admits this allegation is unpreserved and requests palpable error review pursuant to RCr 10.26. In support of his position, Tolle states simply "[t]he offense (sic) of Rape 1st Degree, Sodomy 1st Degree, and Sexual Abuse 1st Degree all are one defining requirement of sexual contact. . . . There is no factual differentiation between the charges in the jury instructions and is reversible error." We discern no error.
Although our review of the instructions indicates they contained sufficient factual differentiation for the separate offenses under the evidence, a more basic flaw dooms Tolle's contention. "It is an established principle that this Court will not address as issue which has been raised in a direct appeal or which should have been raised in a direct appeal." Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990). See also Baze v. Commonwealth, 23 S.W.3d 619, 626 (Ky. 2000). Additionally, RCr 11.42 motions are "limited to the issues that were not and could not be raised on direct appeal." Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003). Clearly, Tolle was—or should have been—aware at the time of his direct appeal of the flaw in the instructions he now claims was prejudicial. Tolle's failure to raise the issue on direct appeal prohibits litigation of the matter for the first time in this post-conviction proceeding.
Further, we note Tolle failed to raise this argument before the trial court. It is axiomatic that a party may not "feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321, 327 (Ky. 2010) (citations omitted)). As the trial court was not presented with this additional argument, nor given the opportunity to rule thereon, we shall not consider it for the first time on appeal.
For the foregoing reasons, the judgment of the Bracken Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David Tolle
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky