Opinion
NO. 2014-CA-001374-MR
05-06-2016
ERIC WAYNE BOYD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Eric Wayne Boyd, Pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 08-CR-00334 OPINION
AFFIRMING
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BEFORE: CLAYTON, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Eric Wayne Boyd appeals from the Bullitt Circuit Court's order denying his RCr 11.42 motion. For the following reasons, we affirm.
Kentucky Rules of Criminal Procedure.
I. Procedural and Factual Background
Boyd was charged with burglary in the first degree, rape in the first degree, sodomy in the first degree, kidnapping, possession of drug paraphernalia, and being a persistent felony offender (PFO) in the second degree. These charges arose when Boyd went to visit J.W., his ex-girlfriend and mother of his minor son. Prior to this event, J.W. had sought an Emergency Protective Order (EPO) against Boyd following an argument when he had brandished a knife at her.
Boyd, angry that J.W. had denied him a weekend with his son, drove to J.W.'s house to see his son. He parked his tractor-trailer truck at the beginning of J.W.'s neighborhood, nearly two miles from her home. He then walked to her house, and after observing her and their son in the front yard, entered the home through the unlocked back door. He waited for J.W. in the kitchen with a knife. Boyd threatened harm to himself and their son if J.W. did not comply with his orders. He then instructed J.W. to remove her clothing and have sex with him. She told him that she would do whatever he asked, so long as he did not harm their son, and the two engaged in intercourse. Once Boyd fell asleep, J.W. was able to get her cell phone and alert several family members that Boyd was in her home and to call the police. Once the police arrived, J.W. exited the house with her son, and Boyd was arrested.
Boyd initially had private counsel, and was out of custody on bond. While he was represented by private counsel, the Commonwealth offered Boyd a plea of two to ten years in prison with visitation rights with his son. Boyd rejected this deal because he wanted to go to trial. After a disagreement with that private counsel, Boyd requested and was granted a public defender. After a change in bond, he was then taken back into custody.
In September 2008, a Bullitt County Grand Jury indicted Boyd on all charges. After meeting with his court-appointed counsel several times, she advised Boyd that since she had only had his case for a short time, she would need to ask for and would likely be granted a continuance. She further told Boyd she would be taking maternity leave soon and would either have to try his case after she returned or have his case assigned to another public defender. At a hearing in April 2010, Boyd decided to plead guilty to the Commonwealth's second plea offer, and the court imposed a 20-year sentence.
In July 2013, Boyd filed an RCr 11.42 motion seeking to vacate his sentence based on ineffective assistance of counsel. After an evidentiary hearing, at which Boyd, Laura Powell, and two of Boyd's former attorneys testified, the court denied the motion. From this denial of his RCr 11.42 Boyd now appeals. Any necessary additional facts will be discussed with the relevant argument.
Laura Powell is the ex-wife of Boyd's brother. She testified that Boyd used her computer to communicate with J.W. while he was out of custody on bond.
II. Standard of Review
We review a trial court's denial of an RCr 11.42 motion for abuse of discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). An abuse of discretion has occurred when the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citation omitted).
To succeed on a claim of ineffective assistance of counsel, a defendant must meet two requirements:
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 the defendant 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This two-part inquiry also applies to a challenge to a guilty plea based on ineffective assistance of counsel; however, the "prejudice" requirement instead "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985) (internal citations omitted).
As the Kentucky Supreme Court recently noted,
to obtain relief [on an ineffective assistance claim] a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. . . . [A]t the pleading stage it is movant's burden to allege specific facts which, if true, would demonstrate prejudice. A conclusory allegation to the effect that absent the error the movant would have insisted upon a trial is not enough. The movant must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence.Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (internal citations and quotations omitted).
III. Arguments
Boyd makes three arguments on appeal. First, he argues that his counsel was ineffective by failing to adequately investigate the communications between Boyd and J.W. after the alleged rape, which he contends prove that the sex was consensual. Second, he argues his counsel was ineffective for failing to advise him of all possible defenses before pleading guilty. Lastly, Boyd argues that these errors amount to cumulative error.
A. Failure to Investigate
First, Boyd argues that his trial counsel failed to investigate both Myspace and Yahoo! Messenger communications between J.W. and himself. He alleges that in these messages, J.W. states the sexual intercourse between them was consensual and that she continued to be friendly after the alleged rape.
a. MySpace Message
Boyd first argues that his court-appointed counsel did not properly investigate MySpace messages between J.W. and himself, in which he claims J.W. "admitted the encounter was consensual." Boyd contends that his trial counsel failed to further investigate this "admission of consent" despite the fact that his previous private counsel included these messages in the case file when he transferred the case to her.
The most relevant MySpace message from J.W. allegedly states "i told them that i did consent to it...i did tell you i would do it but they said based on how everything happened that it was considered rape and all that other stuff[.]" (original syntax).
Defense counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. Boyd's court-appointed counsel had possession of these MySpace messages before Boyd accepted the guilty plea. Therefore, any alleged failure to investigate did not prevent the discovery of this message. Rather, as testified to by both of Boyd's previous attorneys, an issue in properly authenticating these messages arose and continues to be problematic.
Boyd's prior private counsel attempted to authenticate these messages by subpoenaing records from MySpace itself, however this authentication proved unsuccessful as MySpace could only provide IP tables instead of the content and authors of the messages. Boyd's prior private counsel then asked the court's leave to depose J.W. in order to authenticate the MySpace messages through her sworn testimony. However, since J.W. would be available for trial, the court denied the request to depose her. When the prior private counsel transferred this case to court-appointed counsel, he included a memo detailing these efforts to authenticate the MySpace messages. Boyd's new counsel did not have the chance to attempt any additional avenues of authentication since Boyd accepted the guilty plea within two months of the transfer of his case. Although Boyd's court-appointed counsel had not yet attempted additional authentication, she testified that she was going to request, and likely would have been granted, a continuance in order to better prepare for Boyd's defense, but that he chose to accept the plea instead.
Boyd does not cite with any specificity how further investigation of the MySpace messages would have either guaranteed authentication or changed the outcome of his decision to plead guilty. In order to be entitled to RCr 11.42 relief, the movant must "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." RCr 11.42(2). "Conclusory allegations that counsel was ineffective without a statement of the facts upon which those allegations are based do not meet the rule's specificity standard and so 'warrant a summary dismissal of the motion.'" Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (internal citation omitted).
Furthermore, Boyd seems to argue that these messages would negate the consent element of the rape charge and therefore would have been pivotal evidence at trial. We disagree. The Commonwealth does not contest whether J.W. agreed to have sex with Boyd, but rather argues that Boyd committed rape in the first degree and sodomy in the first degree by forcible compulsion when he threatened the use of violence against their son and brandished a knife. See KRS 510.040; KRS 510.070. Boyd's trial counsel advised him that this MySpace messages did not negate the forcible element of his rape charge, and would not be a "magic bullet" as Boyd seems to think. She further explained how the cumulative evidence would be presented at trial: that a prior EPO had been sought against him; that Boyd parked his truck far away and walked to the house; that he entered the home without permission; that he had threatened their son; and that evidence exists that Boyd used a knife. Boyd's trial counsel testified at the evidentiary hearing that she was surprised by the timing of Boyd's decision to plead guilty but she felt it to be prudent after this explanation of the evidence and charges against him. The trial court did not abuse its discretion in finding Boyd's counsel sufficiently investigated this matter.
Forcible compulsion is defined as "physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter. Physical resistance on the part of the victim shall not be necessary to meet this definition[.]" KRS 510.010(2).
b. Yahoo! Messenger Messages
Similarly to the MySpace messages, Boyd argues that his trial counsel failed to investigate Yahoo! Messenger messages between J.W. and himself. He argues that a victim of rape would not have continued to communicate with the alleged rapist, and thus these messages help prove he did not commit these crimes.
As noted by the trial court, despite the fact that Boyd had control of this Yahoo! account the entire time his case has been pending, he produced no evidence as to the content of these messages. Furthermore, these Yahoo! Messenger messages face the same issue of authentication as the MySpace messages. The trial court did not abuse its discretion in finding that the Yahoo! Messenger messages were under Boyd's control, and therefore could have been produced as evidence. Thus he has not met his burden to sustain his RCr 11.42 motion.
B. Advice of all Possible Defenses
Second, Boyd argues that his trial counsel failed to advise him of all possible defenses before he accepted his guilty plea. He further argues that his trial counsel was hostile towards him "due to the nature of the crime," and told him repeatedly that she did not have time to pursue this case due to maternity leave.
Defense counsel has a duty to fully advise his or her client before he pleads guilty. See generally Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012). Although Boyd's trial counsel was in fact about to go on maternity leave before Boyd pled guilty, at the evidentiary hearing, she testified she told Boyd that either she would need to ask for a continuance and resume his case after her leave, or his case would be assigned to another public defender. Boyd's trial counsel further testified that she reviewed all of the evidence with him, and although she was surprised by how quickly he decided to plead guilty, she did believe it to be the most informed option.
Furthermore, under oath during his plea colloquy, Boyd stated that he had no complaints about his trial counsel and that she had advised him of all possible defenses. At the evidentiary hearing on his RCr 11.42 motion, Boyd also admitted on cross examination that his trial counsel had advised him of all charges and their penalties, discussed possible defenses, and reviewed the available evidence. He further admitted that he had failed to inform his trial counsel he did not want to take the plea. Sworn declarations by a defendant in open court that his guilty plea is made voluntarily "carry a strong presumption of verity." Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006). Boyd was under oath both when he entered his guilty plea as well as at the evidentiary hearing. Each time, he averred that he had no complaints about trial counsel and that he had been properly advised of his defenses and penalties. The trial court did not abuse its discretion in holding that Boyd was reasonably advised by his trial counsel and that his guilty plea was an informed one.
C. Cumulative Error
Third, Boyd argues that his trial counsel's performance was so deficient that he had no meaningful advocate. He asserts that in addition to his counsel's individual errors, cumulatively, these errors are also sufficient to maintain this motion.
This court has held that "[i]n order for individual allegations of ineffective assistance of counsel to have a cumulative effect, the individual allegations must have merit." Johnson v. Commonwealth, 180 S.W.3d 494, 503 (Ky. App. 2005) (citing McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986)). "Repeated and collective reviewing of alleged errors does not increase their validity." Johnson, 180 S.W.3d at 503 (citation omitted). Since Boyd has failed to demonstrate any individual basis for his claim that his trial counsel's performance was deficient, his claim of cumulative error also fails. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700; 104 S. Ct. at 2071. The trial court did not abuse its discretion denying this RCr 11.42 motion.
IV. Conclusion
For the foregoing reasons, the order of the Bullitt Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Eric Wayne Boyd, Pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky