Opinion
NO. 2017-CA-001904-MR
05-31-2019
JACOB CARDENAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jacob Cardenas, pro se Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT, HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 14-CR-00001 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND KRAMER, JUDGES. KRAMER, JUDGE: Jacob Cardenas appeals from the Kenton Circuit Court's order denying his motion seeking relief under RCr 11.42. After careful review of the record and applicable law, we affirm.
Kentucky Rule of Criminal Procedure.
In April 2015, Cardenas pled guilty to charges of murder and second-degree assault and was sentenced to twenty-five years' imprisonment. Cardenas had multiple co-defendants and at least four of them implicated Cardenas in the commission of the crime. The charges stemmed from an altercation that took place in October 2013 wherein one victim was killed, and another victim suffered a gunshot wound to her arm. In September 2017, Cardenas moved pro se to vacate his sentence pursuant to RCr 11.42. The circuit court entered an order denying the entirety of Cardenas's RCr 11.42 claims in November 2017, without an evidentiary hearing. This appeal followed. Further facts will be developed as they become relevant.
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009) (citation omitted). A movant seeking to set aside his guilty plea must allege with particularity specific facts that would "render the plea so tainted by counsel's ineffective assistance as to violate the Sixth Amendment[.]" Stiger v. Commonwealth, 381 S.W.3d 230, 234 (Ky. 2012).
On appeal, Cardenas alleges his counsel was ineffective: (1) for failing to investigate Cardenas's co-defendant's statements; (2) for failing to challenge a particular witness's competency to testify; (3) for failing to seek a mental evaluation of Cardenas; and (4) for failing to investigate the injuries of the second victim. Lastly, Cardenas states he was prejudiced because of these deficiencies on the part of his counsel.
Typically, a claim of ineffective assistance of counsel is evaluated under the standard set forth in Strickland v. Washington, 466 U.S. 668, 672, 104 S. Ct. 2052, 2056, 80 L. Ed. 2d 674 (1984), and adopted by this Commonwealth in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). However, when a guilty plea is challenged based on ineffective assistance of counsel, a defendant is required to show:
The typical ineffective assistance analysis following a trial requires a defendant to show: (1) deficient performance by counsel and (2) resulting prejudice to the defendant. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). When considering whether there was prejudice from a claim of ineffective assistance following the acceptance of a plea agreement, the Kentucky Supreme Court has adopted the holding of the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), "that 'to obtain relief . . . a petitioner must convince the court that a decision to reject the pleas bargain would have been rational under the circumstances.'" Commonwealth v. Pridham, 394 S.W.3d 867, 880 (Ky. 2012) (quoting Padilla, 559 U.S. at 372, 130 S. Ct. at 1485). With that framework in mind, we will address each of Cardenas's arguments in turn.
Cardenas first argues that his counsel was deficient for failing to investigate three of his co-defendants' statements. In support of this argument, he submitted three affidavits from his co-defendants purporting to recant their prior implication of Cardenas in the crime. We note that all three affidavits are substantially identical. In Cardenas's view, the affidavits show his counsel did not properly investigate and was, thus, ineffective. This argument lacks merit.
Regarding recanted testimony, the Kentucky Supreme Court has explained:
The general rules are that recanting testimony is viewed with suspicion; mere recantation of testimony does not alone require the granting of a new trial; only in extraordinary and unusual circumstances will a new trial
be granted because of recanting statements; such statements will form the basis for a new trial only when the court is satisfied of their truth; the trial judge is in the best position to make the determination . . . and his rejection of the recanting testimony will not lightly be set aside by an appellate court.Thacker v. Commonwealth, 453 S.W.2d 566, 568 (Ky. 1970).
As previously mentioned, Cardenas attached affidavits from three of his co-defendants to his RCr 11.42 motion, which all purported to recant their previous testimony. However, that is the only evidence he presented. Prior to Cardenas's guilty plea, these three co-defendants had accepted plea agreements conditioned on testifying against Cardenas at trial. It is simply not reasonable to think an investigation of these co-defendants at that time would have altered their statements. Considering the high deference given to the circuit court in such matters and because of the inherent distrust of recanted testimony, the circuit court did not abuse its discretion in denying Cardenas's motion as to this argument. See Taylor v. Commonwealth, 175 S.W.3d 68, 70 (Ky. 2005); Hensley v. Commonwealth, 488 S.W.2d 338 (Ky. 1972). Therefore, this argument fails.
Cardenas's second argument is that his counsel was ineffective for failing to challenge the competency of his co-defendant, Steffan Green, prior to his plea. Specifically, Cardenas cites KRE 601(b) and concludes that because Green gave "multiple conflicting statements" to the police during their initial investigation, Green proved he was unreliable. Thus, Cardenas argues that he lacked the capacity to testify.
Kentucky Rule of Evidence.
This particular subsection states: "A person is disqualified to testify as a witness if the trial court determines that he . . . [l]acks the capacity to understand the obligation of a witness to tell the truth."
Simply put, however, a witness or potential witness does not lack the competency to testify just because he made prior inconsistent statements. If that were the case, there would be no need for KRE 801A(a)(1), which allows a witness's prior inconsistent statements to be admitted during trial as an exception to the rule against hearsay. Furthermore, it is an accepted principle that "findings of incompetence are sure to be rare." ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 3.05[1] (4th ed. 2003); see also FED. R. EVID. 601, Advisory Committee's Note ("A witness wholly without capacity is difficult to imagine."). Cardenas provides no other evidence regarding Green's competency. At best, this is a conclusory allegation of his counsel's ineffectiveness, which is not enough to satisfy the RCr 11.42 standard. See Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012). Therefore, this argument also fails.
Cardenas's third argument is that his counsel was ineffective for failing to seek a mental evaluation of Cardenas. In his view, he has mental health conditions that would have called into question his competency to stand trial. Cardenas further opines that his mental health conditions could have opened the possibility of an insanity defense.
Cardenas points to nothing in the record to suggest he suffers from any type of mental illness. Here again, he only makes conclusory allegations in his RCr 11.42 motion and in his brief before this Court that he suffers from a "mental health condition." "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 [set out in RCr 11.42] and so 'warrant a summary dismissal of the motion.'" Id. (quoting RCr 11.42(2)). For this reason, this argument fails.
Cardenas's last argument is that his counsel was ineffective for failing to investigate the injuries to the victim who was shot in the arm. In his view, there was a possibility that the victim's injuries were not caused by gunfire. Cardenas asserts that the injury could have been caused from the victim's falling when she attempted to seek cover from the gunfire.
Similar to his previous argument, Cardenas provides no evidence to support this theory. He simply makes a conclusory allegation that the victim's wound may not have been a gunshot wound. This is not enough to satisfy the RCr 11.42 standard; therefore, this argument also fails. See Roach, 384 S.W.3d at 140.
Because Cardenas's counsel was not deficient, we need not address his final argument that he was prejudiced by his counsel's purported ineffectiveness. Therefore, the Kenton Circuit Court's order denying Cardenas's RCr 11.42 motion is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Jacob Cardenas, pro se
Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky