Opinion
2022-CA-0594-MR
07-26-2024
EDDIE CARBON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Eddie Carbon, pro se Wheelwright, Kentucky. BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky, Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM HENDERSON CIRCUIT COURT HONORABLE KAREN LYNN WILSON, JUDGE ACTION NO. 16-CR-00225
BRIEFS FOR APPELLANT: Eddie Carbon, pro se Wheelwright, Kentucky.
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky, Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky.
BEFORE: CETRULO, L. JONES, AND LAMBERT, JUDGES.
OPINION
CETRULO, JUDGE.
Eddie Carbon, pro se, appeals the Henderson Circuit Court's denial of his Kentucky Rule of Criminal Procedure ("RCr") 11.42 motion. Having reviewed the briefs, the record, and the rulings below, we affirm.
FACTS
On June 24, 2016, Eddie Carbon ("Carbon") was indicted on charges of capital murder, first-degree robbery, second-degree burglary, giving an officer a false name, and being a second-degree persistent felony offender ("PFO"). Carbon ultimately entered into an agreement with the Commonwealth to plead guilty to all charges, in exchange for a total sentence of 30 years. On November 9, 2017, he was sentenced to 30 years in prison. Three years after his plea, he filed a pro se motion to vacate his sentence pursuant to RCr 11.42, asserting that his counsel was ineffective for: 1) failing to conduct a sufficient mental health investigation; 2) misinforming him as to his parole eligibility; and 3) failing to file an immediate appeal.
On January 31, 2022, the Henderson Circuit Court conducted an evidentiary hearing. Both Carbon and his trial counsel testified, and both agreed that Carbon had requested counsel to file an appeal. Trial counsel stated that he advised Carbon that he waived his right to appeal by entering his guilty plea. A defendant who pleads guilty waives most, but not all, of his potential arguments on appeal.
An unconditional guilty plea waives the right to appeal many constitutional protections, as well as the right to appeal a finding of guilt on the sufficiency of the evidence. Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986). However, there are some remaining issues that can be raised on appeal. Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008). The circuit court granted Carbon the right to file an appeal within 30 days as to any issues not waived by his guilty plea. The court denied RCr 11.42 relief on the other two grounds, finding that they were trial strategy decisions and that Carbon received effective assistance of counsel.
Carbon then filed two notices of appeal, one to the Kentucky Supreme Court as his belated direct appeal, and the second to this Court regarding the denial of the RCr 11.42 claims. This matter was held in abeyance pending the resolution of his direct appeal. That resolution came on September 28, 2023 when the Supreme Court affirmed Carbon's conviction. We now address the two remaining arguments presented by his RCr 11.42 motion.
STANDARD OF REVIEW
The denial of an RCr 11.42 motion is reviewed on appeal for an abuse of the trial court's discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). An abuse of discretion is found when the trial court enters an order or makes a ruling which is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
ANALYSIS
A defendant claiming ineffective assistance of counsel bears the burden of identifying specific errors by counsel. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). To succeed on such a claim, the movant must satisfy the two-prong test articulated in Strickland. See Wagner v. Commonwealth, 483 S.W.3d 381, 383 (Ky. App. 2015) (citing Strickland, 466 U.S. at 668). He must first demonstrate that counsel's errors were objectively unreasonable under the circumstances existing at the time, rebutting the strong presumption that those actions were the result of trial strategy. Strickland, 466 U.S. at 688-89. If he satisfies that first prong, he must then prove that counsel's errors prejudiced his right to a fair trial. Id. As Strickland explains, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.
Here, Carbon presents two arguments to support his ineffective assistance of counsel claim. First, he argues that his counsel was deficient for not insisting upon a competency hearing prior to entry of his guilty plea. To that extent, he argues that the circuit court erred by not conducting a competency hearing prior to his plea. Second, he complains about his attorney's performance in that regard. This issue was largely addressed on the direct appeal to the Supreme Court as well. Still, we will address this in the context of the RCr 11.42 claim.
This issue is not before us but was previously addressed by the Supreme Court on direct appeal. The Supreme Court held that Carbon's mental health investigation was sufficient. Noting that Carbon was examined by the Kentucky Correctional Psychiatric Center ("KCPC") and that the examination revealed he was competent to proceed, his counsel was not required to proceed to an independent additional examination. The Court further pointed out that Carbon was not even arguing he was incompetent to enter his plea.
The Supreme Court noted that Carbon did not inform his trial counsel that he was suffering from a mental illness or mental defect. Nevertheless, an evaluation was requested by his trial counsel, and the circuit court authorized funds for the evaluation. His attorney stated that this was requested for purposes of mitigating evidence in the event Carbon went to trial. The Commonwealth had Carbon evaluated at KCPC, and the evaluation and subsequent report found no mental defect or disorder. The report stated that Carbon was able to communicate effectively and understand questions presented to him. After this evaluation, Carbon's attorney did not seek another expert. The parties stipulated to Carbon's competency, which counsel testified he explained to his client. Carbon's trial attorney also testified at the RCr 11.42 hearing that he used the KCPC report to secure the plea deal with the Commonwealth.
This is not unlike the situation in Harper v. Commonwealth, 978 S.W.2d 311 (Ky. 1998). In Harper, our Supreme Court upheld a denial of RCr 11.42 relief wherein a defendant similarly complained of his attorney's failure to seek an independent mental health expert after reviewing the conclusions of the KCPC evaluation. Id. Harper held that, based upon the evaluation, counsel could have reasonably concluded that testimony from an independent expert was unnecessary. Id.
Here, the circuit court concluded that the decision as to whether to obtain a separate expert witness was a matter of trial strategy that fell within counsel's discretion. Similarly, the Supreme Court on direct appeal also addressed the investigation performed by Carbon's attorney, as follows:
Moreover, like in Harper, we conclude the investigation of his attorney was reasonable based upon the available information at the time. Therefore, his conduct was within the "wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984). Caron v. Commonwealth, No. 2022-SC-000175-MR, 2023 WL 6350103 (Sept. 28, 2023) at *4.
Typically, an issue raised and rejected on direct appeal may not be relitigated in subsequent proceedings by simply claiming that it amounts to ineffective assistance of counsel. Prescott v. Commonwealth, 572 S.W.3d 913, 922 (Ky. App. 2019). Because our Supreme Court addressed this issue on direct appeal, and because we believe the actions of counsel were reasonable, we will not consider this further. See Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972).
Carbon next argues that his counsel was ineffective for advising him to accept a plea for 30 years. He asserts first that his mental health and abusive childhood might have resulted in a lower sentence. Further, he argues, he understood that the plea agreement was such that he would be granted parole in 20 years. He claims he would not have accepted the 30-year offer had he known he would not get parole in 20 years.
The ineffective assistance of counsel hearing before the circuit court included testimony from trial counsel. Therein, counsel testified that he specifically advised Carbon that there was no guarantee he would ever be granted parole. In addition, the record from the guilty plea proceeding confirms that he was fully advised that "no one can tell you when or if you're going to make parole." Carbon confirmed that he understood that on the record. His attorney then confirmed on the record that he had explained to Carbon that parole eligibility was not his decision nor the court's, but rather was up to the parole board who might choose not to grant it. The trial court considered both the guilty plea proceedings and conducted an evidentiary hearing on these arguments and concluded that counsel's assistance fell within the wide range of competent assistance.
The standard of review used when a defendant's voluntariness of his guilty plea is challenged for ineffectiveness of counsel is well established. The circuit court must determine whether the guilty plea was entered knowingly, voluntarily, and intelligently by considering the totality of the circumstances. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006).
Here, the record refutes any allegation that Carbon was improperly induced or coerced into pleading guilty, or that his guilty plea was unknowing or otherwise involuntary. The circuit court conducted a thorough colloquy with Carbon before accepting his guilty plea. Such declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics has been found subject to summary dismissal. See Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011). Secondly, there has been no evidence that Carbon would not have pled guilty but would have insisted on going to trial but for this claimed misinformation or alleged error. In the guilty plea context, a defendant must also convince the court that a decision to reject the plea bargain would have been rational under the circumstances. In short, the second prong of showing prejudice must also be met. Strickland, 466 U.S. at 687. Carbon failed to establish either prong.
Even though several of Carbon's arguments were already addressed by the Supreme Court on direct appeal, and despite the fact that the record refutes many of his allegations, we have considered all of the arguments, the record of the hearing granted by the circuit court, and the guilty plea proceeding itself. Carbon simply has not shown that his counsel provided ineffective assistance. The denial of RCr 11.42 relief is AFFIRMED.
ALL CONCUR.