Opinion
NO. 2013-CA-001850-MR
03-27-2015
MARCUS CHAPMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Marcus Chapman, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 09-CR-003692
OPINION
AFFIRMING
BEFORE: CLAYTON, KRAMER AND NICKELL, JUDGES. KRAMER, JUDGE: Marcus Chapman appeals from the order of the Jefferson County Court denying his motion to vacate, set aside, or correct his sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. After careful review, we affirm.
On December 9, 2010, Chapman, pursuant to North Carolina v. Alford, pleaded guilty to receiving stolen property over $500. The terms of Chapman's plea agreement required he receive a five-year sentence to run consecutive with a five-year sentence in case No. 10-CR-1318, for a total of ten years. On March 1, 2011, Chapman moved to withdraw his guilty plea. After a hearing on the matter, the motion was denied. The trial court entered judgment on June 8, 2011, sentencing Chapman to ten-years' imprisonment. However, the court granted Chapman's request to be released on pretrial diversion.
400 U.S. 25, 91 S.Ct. 160 (1970).
In December of 2011, after being indicted for two counts of attempted murder, two counts of first-degree assault, and one count of tampering with physical evidence, the trial court voided Chapman's pretrial diversion. As a result, Chapman was ordered to serve out his ten-year sentence in confinement.
Chapman then moved to vacate his sentence pursuant to RCr 11.42. On September 17, 2012, the trial court denied Chapman's motion without holding an evidentiary hearing. The court found Chapman's claims of ineffective assistance of counsel refuted by evidence contained in the record. It is from the trial court's order denying his motion for RCr 11.42 relief that Chapman appeals.
Because the trial court determined that a hearing on Chapman's RCr 11.42 motion was unnecessary, our review is limited to "whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
In his RCr 11.42 motion, Chapman raises two claims of ineffective assistance of counsel. The United States Supreme Court in Strickland v. Washington, established a two-part test for determining when trial counsel's performance is so deficient that it requires relief. First, a movant must show that his "counsel made errors that were so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct at 2064. To determine this, a court "must conduct an objective review of [counsel's] performance, measured for 'reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen 'from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 2536 (2003) (quoting Strickland, 466 U.S. at 689, 104 S.Ct at 2065). Trial counsel's performance is presumed to be reasonable. Commonwealth v. Pelphrey, 998 S.W.2d 460 (Ky. 1999). "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proven unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S.Ct at 2065. Therefore, "judicial scrutiny of counsel's performance must be highly deferential," and the burden is on the appellant to overcome the presumption that "the challenged action might be considered sound trial strategy." Id.
466 U.S. 668, 104 S.Ct. 2052 (1984). See Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985) ("This court is bound by the principles established by the Supreme Court of the United States in [Strickland], in the context of analyzing ineffective assistance of counsel claims under the Sixth and Fourteenth Amendments.")
The second component of the Strickland analysis requires a movant to show that he was prejudiced by his counsel's conduct. This requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
Where an appellant challenges a guilty plea based on ineffective counsel, he must first show that counsel made serious errors outside the wide range of professionally competent assistance. Second, he must show 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 he would not have pled guilty. Instead, he would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
As an initial matter we note that the record designated by Chapman on appeal is incomplete. An appellant has a duty to ensure that a complete record is before this Court, and the failure to do so results in a presumption in favor of the trial court's decision. Graves v. Commonwealth, 283 S.W.3d 252, 255-56 (Ky. App. 2009). Chapman only designated the written record from one indictment even though his plea deal involved two. Additionally, the designated record does not include the video recording of the guilty plea. Therefore, we must reach a conclusion based upon the limited record and a presumption that the omitted record supports the trial court's decision.
Chapman first alleges that trial counsel coerced him into entering a guilty plea. He insists he only agreed to plead guilty in return for a five-year sentence and not the ten-year sentence he ultimately received. When he attempted to complain thereafter, his attorney told him to not worry that he would get it fixed. Chapman believes trial counsel took advantage of his lack of knowledge and fear of the system in order to convince him to agree to the terms of the plea agreement. We disagree.
To the extent Chapman's claims of ineffective assistance are based on allegations he was coerced into accepting a ten-year sentence, that claim is conclusively refuted by the record. The record contains the Commonwealth's Offer on a Plea of Guilty, the Motion to Enter Guilty Plea, and the Order Granting Pretrial Diversion, all signed by Chapman. The Commonwealth's Offer on a Plea of Guilty clearly states that the five-year sentence will run consecutive to the five-year sentence in 10-CR-1318, for a total of ten years. The Motion to Enter Guilty Plea lists the rights Chapman waived by pleading guilty; states that his attorney fully explained his constitutional rights as well as the charges and any defenses to them; and declares that Chapman is entering his plea freely, knowingly, intelligently, and voluntarily. And, the Order Granting Pretrial Diversion states that the Commonwealth recommends ten years as the appropriate sentence to be imposed in the event that the defendant fails to successfully complete the terms and conditions of pretrial diversion. A hearing on this issue was unnecessary as it is clear from the record that Chapman knowingly and voluntarily entered his plea.
Chapman next claims that trial counsel failed to fully investigate the circumstances of the case before allowing him to plead guilty. He insists that had his counsel performed a reasonable investigation, he would have found out that Chapman had an "airtight" alibi. Chapman believes a hearing should have been conducted in order to determine the reasonableness of his counsel's investigation. We disagree for several reasons.
First, Chapman's claim that upon adequate investigation his attorney would have discovered Chapman's airtight alibi is conclusory. Conclusory allegations that are "wholly incredible" in the face of the record cannot overcome the presumption of reasonable effective assistance and are subject to summary dismissal. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977), (citing Machibroda v. United States, 368 U.S. 487, 495-496, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962)). Next, a hearing is unnecessary because even if Chapman's allegations were true, the outcome would not likely have changed.
Chapman does not make the claim that he never spoke with his trial counsel prior to pleading guilty. It strains credulity to believe that in his discussions with counsel the subject of his airtight alibi was never discussed. Counsel is presumed to have rendered reasonable professional assistance and the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Further, in the context of a guilty plea, the movant must show that, but for the alleged errors and deficiencies of counsel, a reasonable probability exists that the movant would not have entered a plea but would have insisted on going to trial. Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). Common sense directs us to assume that Chapman knew of his alleged airtight alibi before he knowingly, intelligently, and voluntarily entered his guilty plea. Despite having this alleged knowledge, Chapman nonetheless chose to plead guilty.
For the foregoing reasons, the Jefferson Circuit Court order denying Chapman's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Marcus Chapman, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky