Opinion
NO. 2011-CA-001498-MR
08-17-2012
DAVID BAILEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christine Foster Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE JAY DELANEY, JUDGE
ACTION NO. 07-CR-00016
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES. CAPERTON, JUDGE: The Appellant, David Bailey, appeals the July 26, 2011, order of the Harrison Circuit Court, denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion seeking to vacate his sentence for sexual abuse in the first degree. Bailey argues that the court erred to his substantial prejudice in denying the motion. The Commonwealth disagrees. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
On February 6, 2007, Bailey was indicted for sexual abuse in the first degree, victim less than twelve years old. The case proceeded to trial and Bailey was found guilty of first-degree sexual abuse, for which he received a maximum sentence of five years' imprisonment.
On December 1, 2006, C., a friend of the victim, S.S., told Northside Elementary School counselor Linda Philpot that S.S. had been raped by Bailey. S.S. was then interviewed by police, and reported that the sexual abuse had occurred on or about July 20, 2006, nearly six months earlier.
Following a direct appeal, his conviction was affirmed by this Court on August 28, 2009.
Thereafter, on July 2, 2010, Bailey filed a motion with the Harrison Circuit Court requesting that the Department of Public Advocacy (DPA) be ordered to provide him with a copy of his case records. On July 27, 2010, Jennifer Wittmeyer of the DPA filed a response stating that the file had been copied and mailed to Bailey. Upon reviewing the file, Bailey discovered for the first time that the Commonwealth had made a three-year plea agreement offer to his trial counsel, LaMer Kyle Griffiths. Bailey asserts that the offer was never conveyed to him.
Among the records that were sent to Bailey from his attorney's file was a document entitled "Case Review - David Bailey." During the course of the evidentiary hearing below, Griffiths testified that this document was "created for review by other attorneys in order to discuss possible angles, possible defenses, other ways to deal with witnesses or strategies for the case." The relevant portion of the memo stated, "David's offer is 3, if I can find something in the C range that still requires sex registry, etc." Following the evidentiary hearing, the trial court made a finding that an offer of three years was never extended or conveyed to Bailey's trial attorney by the Commonwealth. Consequently, the court concluded that Bailey's trial counsel was not ineffective and overruled his RCr 11.42 motion. Bailey now appeals to this Court.
TR II, 58.
On appeal, Bailey argues that the trial court erred to his substantial prejudice and denied him due process of law by overruling his RCr 11.42 motion asserting ineffective assistance of counsel because he alleges that counsel failed to advise him of the Commonwealth's plea offer. Bailey argues that had his counsel communicated this alleged offer, he would have entered a guilty plea and received a significantly lighter sentence. The Commonwealth disagrees that Bailey was prejudiced in any way, and notes that during the course of the evidentiary hearing, his counsel testified specifically that such an offer was never formally extended.
Prior to addressing the arguments of the parties, we note that to establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair and, as a result, was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As established in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695 .Bowling at 411-412.
Additionally, we note that the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances counsel's action "might [have been] considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Further, we note that findings of fact made by the trial court shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Kentucky Rules of Civil Procedure (CR) 52.01. We review this matter with these standards in mind.
Below, during the course of the evidentiary hearing, Bailey's trial counsel testified that there was never a formal offer of three years from the Commonwealth. Accordingly, the trial court made a finding of fact that no formal offer for three years had been extended. This was a determination supported by the testimony below and was not clearly erroneous. Accordingly, this Court is of the opinion that the record supports the conclusion of the trial court in finding that there was no ineffective assistance of counsel.
Wherefore, for the foregoing reasons, we hereby affirm the July 26, 2011, order of the Harrison Circuit Court, the Honorable Jay Delaney, presiding.
ALL CONCUR. BRIEF FOR APPELLANT: Christine Foster
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky