Opinion
NO. 2019-CA-000131-MR
02-07-2020
WESLEY S. ANGLIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Wesley S. Anglin, pro se Pineville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 09-CR-00057 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES. JONES, JUDGE: Wesley S. Anglin appeals pro se from the Breckinridge Circuit Court's order denying the motion to vacate his sentence pursuant to RCr 11.42. We affirm.
Kentucky Rules of Criminal Procedure.
I. BACKGROUND
A full history of this case may be found in our unpublished opinion stemming from Anglin's direct appeal. Anglin v. Commonwealth, No. 2011-CA-000985-MR, 2013 WL 2257829 (Ky. App. May 24, 2013). Briefly stated, Anglin and an accomplice convinced Corey Vincent to drive them to a cemetery in Breckinridge County, at which time the two men attacked Vincent and beat him into unconsciousness. Anglin and his accomplice then covered Vincent with debris and left him for dead. The two men left in Vincent's vehicle and were later apprehended in Texas. At his trial, the jury found Anglin guilty of first-degree robbery, and the trial court sentenced Anglin to thirteen years' imprisonment. After this Court affirmed his conviction on direct appeal, Anglin subsequently filed a pro se motion to vacate sentence under RCr 11.42, which was later supplemented by counsel. The trial court denied the motion in a thorough, ten-page order entered on December 11, 2018. This appeal followed.
Kentucky Revised Statutes (KRS) 515.020, a Class B felony.
II. ANALYSIS
A successful petition for relief under RCr 11.42 based on ineffective assistance of counsel must survive the twin prongs of "performance" and "prejudice" provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). The "performance" prong of Strickland requires as follows:
Appellant must show that counsel's performance was deficient. This is done by showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment, or that counsel's representation fell below an objective standard of reasonableness.Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citations and internal quotation marks omitted). The "prejudice" prong requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. 2052).
Both Strickland prongs must be met before relief pursuant to RCr 11.42 may be granted. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This is a very difficult standard to meet. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010). We review counsel's performance under Strickland de novo. McGorman, 489 S.W.3d at 736.
As a preliminary matter, Anglin's brief fails to conform to the briefing requirements under CR 76.12(4)(c)(iv)-(v), in that it contains no citations to the record in support of his statement of facts or his arguments. Likewise, the brief contains no statements showing whether his issues were properly preserved for review. An appellate court may strike a brief when it substantially fails to comply with any requirement under CR 76.12. Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012); CR 76.12(8)(a).
Kentucky Rules of Civil Procedure.
Additionally, and far more damaging to his case, Anglin's brief utterly fails to provide cogent arguments supporting his claims of ineffective assistance of counsel. In his brief, Anglin tangentially refers to "the Circuit Court's denial [in which] it listed 24 arguments that were being denied as frivolous, speculative and inappropriate[,]" before providing a list "relative to this court's current ability to review." He then asserts the following: "Failure of counsel to investigate witnesses; failure of counsel to obtain depositions; counsel withheld information and refused to communicate with him; and counsels [sic] failure to subpoena witnesses." Anglin provides no facts or arguments directly supporting these bare assertions. His occasional citations to law do not directly support his assertions of error. Anglin then faults the trial court for failing to provide an evidentiary hearing on his issues, stating his assertions are not refuted by the record, pursuant to Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001). Anglin's brief culminates in a diatribe against the trial court, in which he accuses the judge of bias against him.
Anglin provided a litany of complaints to the trial court in his RCr 11.42 motion, but only mentioned a few of those in his brief. To the extent that Anglin did not address specific arguments to us on appeal, they are considered to be waived. "An appellant's failure to discuss particular errors in his brief is the same as if no brief at all had been filed on those issues." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979); see also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815-16 (Ky. 2004).
The remaining arguments, those few Anglin asserted in his brief, lack merit because they are entirely conclusory, citing no portion of the record in support. RCr 11.42 requires the movant to "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (emphasis added) (quoting RCr 11.42(2)). Failure to do so "warrant[s] a summary dismissal of the motion." Id.
"It is not our function as an appellate court to research and construct a party's legal arguments." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). We will not search the record to construct [the appellant's] argument for him, nor will we go on a fishing expedition to find support for his underdeveloped arguments.Prescott v. Commonwealth, 572 S.W.3d 913, 923 (Ky. App. 2019). In short, a brief must do more than merely mention the issue to have a chance of success on appeal. "[T]hreadbare recitals of the elements of a legal theory, supported by mere conclusory statements, form an insufficient basis upon which this Court can grant relief." Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018).
Finally, even if we were to consider the merits of Anglin's arguments, the trial court correctly concluded many of Anglin's arguments below were speculative. Speculative claims, i.e., "claim[s] that certain facts might be true . . . cannot be the basis for RCr 11.42 relief." Mills v. Commonwealth, 170 S.W.3d 310, 328 (Ky. 2005), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Allegations which are "vague and general . . . do not rise to the standards required by RCr 11.42(2)." Sanders v. Commonwealth, 89 S.W.3d 380, 390 (Ky. 2002), overruled on other grounds by Leonard, 279 S.W.3d 151.
III. CONCLUSION
For the foregoing reasons, we affirm the Breckinridge Circuit Court's order denying relief, entered December 11, 2018.
ALL CONCUR. BRIEF FOR APPELLANT: Wesley S. Anglin, pro se
Pineville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky