Opinion
NO. 2012-CA-002102-MR
08-22-2014
RICHARD ALLEN BAKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Richard Allen Baker, pro se BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky William Robert Long, Jr. Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 10-CR-00050
OPINION
AFFIRMING
BEFORE: MAZE, MOORE, AND VANMETER, JUDGES. MAZE, JUDGE: This appeal arises from the Garrard Circuit Court's denial of Appellant Richard Allen Baker's motion to vacate, set aside, or correct his sentence pursuant to Kentucky Rules of Criminal Procedure ("RCr") 11.42. Specifically, Baker alleges that his trial counsel and the trial court committed several errors requiring his plea of guilty and sentence to be vacated. As the evidence of record shows, counsel for Appellant was not deficient and any possible deficiencies were not prejudicial to Baker. Hence, we affirm.
Background
On or about July 16, 2010, Baker sold cocaine to a confidential informant through a controlled drug buy. On November 5, 2010, a Garrard County grand jury indicted Baker for first-degree Trafficking in a Controlled Substance, Second or Subsequent Offense, and for being a Persistent Felony Offender in the first degree. The trial court appointed Baker counsel and his case proceeded toward trial. The Commonwealth later made Baker an offer of twenty-five years' imprisonment in exchange for pleading guilty, which Baker refused despite his attorney's recommendation that he accept it. However, on May 5, 2011, acting on the advice of his counsel, Baker entered an open guilty plea, thus avoiding a jury trial where he was facing a sentence ranging from twenty years to life in prison. On May 20, 2011, the trial court sentenced Baker to twenty-five years in prison.
Less than a year after entry of his plea, Baker filed the RCr 11.42 motion to vacate, set aside, or correct his sentence which forms the basis for this appeal. After the trial court appointed Baker post-conviction counsel, an evidentiary hearing was held concerning his motion and the claims therein. Following this hearing, the trial court denied Baker's RCr 11.42 motion. In its brief handwritten order, the trial court concluded that Baker's arguments of ineffective assistance were "without merit," stating its belief that Baker likely would have received a longer sentence had the case proceeded to trial. Baker's pro se appeal follows. Further facts will be provided as necessary for our analysis.
Standard of Review and the Strickland Standard
The circuit court's findings concerning a claim for ineffective assistance of counsel involve questions of both law and fact, and therefore questions concerning counsel's performance are reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). When an evidentiary hearing is held on an RCr 11.42 motion, we show deference to the trial court's determinations of fact and judgments regarding the credibility of witness testimony. Id. (citing McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986)). However, the findings of fact made by the trial judge are evaluated under a clearly erroneous standard and may be set aside if they are "[not] supported by substantial evidence." Id. (citing Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964)).
The standard for analyzing a claim for ineffective assistance of counsel under an RCr 11.42 motion was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Strickland established that to prove an ineffective assistance of counsel claim, the movant must show both that counsel was deficient and that the deficiency prejudiced the defendant. Strickland, 466 U.S at 687, 104 S.Ct. at 2064; see also Gall, 702 S.W.2d at 39. For counsel's performance to be considered deficient, the defendant must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, id. In evaluating counsel's performance, we ask whether the performance was reasonable based on prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.
To prove that the deficiency was prejudicial, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the case would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694, 104 S.Ct. at 2068. This standard is slightly modified, however, when the defendant has entered a guilty plea. See Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012). The Kentucky Supreme Court has established that to prove prejudice in such a case, the defendant must show "'a reasonable probability that, but for counsel's errors, he would have not pleaded guilty and would have insisted on going to trial.'" Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)). This modification, however, does not allow for "'hindsight [to] suffice for relief when counsel's choices were reasonable and legitimate based on predictions of how the trial would proceed.'" Id. (quoting Premo v. Moore, 131 S.Ct. 733, 745-746, 178 L.Ed.2d 649 (2011)). When a guilty plea has been signed and there is therefore no evidence from trial in the record, "'there is a most substantial burden on the claimant to show ineffective assistance.'" Id.
Analysis
On appeal, Baker contends that his constitutional rights were violated when he received ineffective assistance of counsel and, therefore, the trial court erred in denying his RCr 11.42 motion. Baker's claims include that his counsel had a deficient trial strategy, coerced him into signing a guilty plea when he did not understand the charges against him, failed to investigate and present mitigating evidence, failed to advocate for more lenient sentencing under then soon-to-be-enacted House Bill ("HB") 463, and failed to ensure the presentencing investigation report ("PSI") was correct before sentencing. Baker also asserts cumulative error. We address these arguments in turn.
I. Counsel's Performance at Trial
A. Trial strategy
Baker first questions the trial strategy of his counsel. More specifically, he contends that his counsel should have insisted that he go to trial because, in Baker's opinion, sufficient evidence existed to support his innocence.
When questioning counsel's trial strategy entry of a guilty plea, it is impossible to know exactly what would have happened had the case gone to trial. Pridham, 394 S.W.3d at 876. Counsel faces uncertainty when determining how a trial will play out. Id. Because of this, Baker has a substantial burden to prove ineffective assistance. Id. Here, Baker has not met his burden.
There is substantial evidence in the record to support the trial court's finding that counsel's trial strategy was not deficient. At the evidentiary hearing, the trial court noted that had Baker's case gone before a jury, he would have likely received life in prison. Additionally, during the RCr 11.42 hearing, counsel for Baker explained that her advice to Baker to sign an open plea was based on her past experiences with the trial court and that she assured Baker that the trial court's sentence under the open plea would likely not be longer than the Commonwealth's original twenty-five-year offer. Her prediction was correct.
For these reasons, we hold that counsel's strategy in recommending that Baker enter an open plea was not deficient. It follows that this portion of Baker's claim of ineffective assistance fails the first prong of Strickland and, hence, does not entitle him to relief under RCr 11.42.
B. Allegation of Coercion
Baker further contends that his counsel coerced him into signing the guilty plea, allowed him to be misled during the plea colloquy, and did not ensure that he understood the charges against him. The United States Supreme Court has stated that the traditional test for whether a guilty plea was valid is "'whether the plea represents a voluntary and intelligent choice among the alternative courses of action available to the defendant.'" Hill v. Lockhart, 474 U.S. at 56, 106 S.Ct. at 369 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). The Kentucky Supreme Court has also held that the guilty plea waiver signed by a defendant along with video evidence in the record of the guilty plea proceedings must be sufficient to show that the defendant knowingly pleaded guilty. Commonwealth v. Crawford, 789 S.W.2d 779, 780 (Ky. 1990). Additionally, the Court emphasized that "'the validity of a guilty plea is determined . . . from the totality of the circumstances surrounding it.'" Id. (quoting Kotas v. Commonwealth, 565 S.W.2d 445, 447 (1978)). Our Supreme Court has also emphasized the standard that "'[a] plea of guilty entered by one fully aware of the direct consequences . . . must stand unless induced by threats . . . misrepresentation . . . or perhaps by promises that are by their nature improper . . . .'" Pridham, 394 S.W.3d at 876 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).
The record establishes that Baker signed his guilty plea knowingly and willingly and that his counsel was not deficient in explaining his plea. The record includes Baker's signed guilty plea. The video record of the May 5, 2011 plea colloquy shows Baker's counsel and the judge reviewing the guilty plea with Baker. It also shows Baker stating that he understood the contents and consequences of the plea. Additionally, the record lacks any indication that anyone threatened Baker, misrepresented the facts or realities of the plea to Baker, or made improper promises to Baker in exchange for his plea.
Based on these facts, it is evident that Baker knowingly and willingly pleaded guilty. Therefore, the trial court properly concluded that Baker failed to prove at least one essential element of his ineffective assistance of counsel claim.
C. Alleged Failure to Investigate and Present Mitigating Evidence
Baker next contends that his counsel failed to investigate and present mitigating evidence on his behalf. He asserts that counsel failed to interview witnesses essential to his defense and failed to "conduct a mitigation investigation" prior to sentencing.
The Kentucky Supreme Court has explained that "defense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (2001). The reasonableness of the investigation "depends on the circumstances of the case." Id. Baker contends that his counsel neglected this duty. However, he is mistaken.
The record demonstrates that Baker's counsel investigated and presented mitigating evidence. The video record of Baker's sentencing hearing demonstrates that his counsel presented evidence concerning Baker's lengthy drug addiction and notified the trial court that Baker had received limited treatment for his addictions. Furthermore, as the trial court in the present case found, at the RCr 11.42 hearing, Baker's counsel conducted a thorough background check of the informant and spoke with the witness. In sum, the record supports this finding.
For these reasons, counsel was not deficient in her investigation or presentation of mitigating evidence, and this issue fails the first prong of the Strickland analysis.
D. House Bill 463
Baker next alleges that his counsel was deficient by failing to seek a continuance of his sentencing to a date after the effective date of HB 463, which took effect approximately one month after Baker's sentencing. Baker argues that his counsel's failure to do so resulted in his receiving a longer sentence. However, the record once again contradicts Baker's allegation of ineffective assistance.
At sentencing, Baker's counsel stated to the trial court that,
[t]his one has been a difficult one for Mr. Baker and for me because of the new drug laws that are looming. Nineteen days from now he would be looking at a very different penalty range. He would be looking at a maximum of twenty . . . rather than he's looking at twenty to fifty or life today; and he benefits from the fact that the amount is less than 4 grams, in the new laws there's a threshold for the amount which would make his a Class C felony; and he also benefits from the double enhancement prohibition, so he can't be PFO and also a subsequent offender . . . I would ask the court to reconsider sentencing him today and passing it to next month to sentence him, you know, so that he can get the benefit of the new law.Kentucky Revised Statutes (KRS) 446.110 supports counsel's assertion of HB 463's potential impact on Baker's sentence. It states that, "[i]f any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." Therefore, Baker is correct that had his sentencing taken place after HB 463 became effective, and had the Commonwealth consented, he could have benefitted from the new law.
Nevertheless, the record refutes Baker's allegation that his counsel did not advocate in favor of availing him of HB 463's benefits. As counsel's argument above demonstrates, Baker's counsel did, in fact, advocate for his sentencing to take place after the effective date of HB 463 and for the trial court to, at the very least, take into account HB 463 during sentencing. Simply because the trial court denied Baker's counsel's request does not mean that counsel failed to advocate for her client or was otherwise deficient. Because this claim fails the first prong of Strickland, Baker once again fails to meet his burden on appeal.
E. Pre-Sentencing Investigation Form
Baker contends that errors existed on his PSI form and that these errors resulted in the trial court's imposition of a longer sentence. While errors did exist on Baker's PSI form, we disagree that they resulted in the imposition of a longer sentence.
KRS 532.050(6) states that "[b]efore imposing sentence, the court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation . . . and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them." KRS 532.050(6). Therefore, any failure on Baker's counsel's part to ensure his PSI was correct could be considered deficient and could have potentially prejudiced him. Neither is the case.
The record from the sentencing hearing shows Baker's counsel informing the trial court of the errors contained in the PSI. The trial court, counsel, and Baker briefly discussed the errors, and together, they determined that their correction would have no impact on Baker's sentencing. In these facts, we see no deficiency on the part of Baker's counsel, as she brought the errors to the attention of the trial court and made reasonable efforts to ensure they would not prejudice her client. For this reason, the trial court correctly concluded that Baker's claim regarding his PSI form fails the first prong of the Strickland standard.
F. Cumulative error
Finally, Baker contends that the sum of the aforementioned errors, though themselves insufficient to maintain his claim of ineffective assistance, together constitute cumulative error requiring vacation of his plea and sentence. Having found no deficiency or prejudice stemming from counsel's performance regarding Baker's many allegations of error, we further conclude that the record lacks any indication of cumulative error.
II. Baker's Additional Allegations of Error
In addition to his allegations of his counsel's ineffective assistance, Baker attempts to make several contentions of errors committed by the trial court, and the Commonwealth. However, these arguments are impermissibly raised under RCr 11.42.
An RCr 11.42 motion is restricted to collateral attacks on the ineffective assistance of counsel. The Kentucky Supreme Court has explained that RCr 11.42 motions are "a vehicle to attack an erroneous judgment for reasons which are not accessible by direct appeal." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). The Court has also stated that RCr 11.42 motions are not appropriate for "mere errors of the trial court and '[i]n order for the rule to be invoked there must be a violation of a constitutional right, a lack of jurisdiction, or such violation of a statute as to make judgment void and therefore subject to collateral attack.'" Thompson v. Commonwealth, 117 S.W.3d 782, 785 (Ky. 2005) (quoting Tipton v. Commonwealth, 376 S.W.2d 290 (Ky. 1963). Therefore, claims concerning the trial court, prosecution, and sentence imposed by the trial court are outside the scope of an RCr 11.42 motion and we shall not address them.
Conclusion
Accordingly, the order of the Garrard Circuit Court denying Baker's motion to vacate, set aside, or correct sentence pursuant to RCr. 11.42 is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Richard Allen Baker, pro se BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
William Robert Long, Jr.
Frankfort, Kentucky