Opinion
NO. 2011-CA-000933-MR
03-07-2014
YUNIER VALDES CISNEROS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Daniel M. Alvarez Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 09-CR-0001840
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Yunier Valdes Cisneros brings this appeal from a March 25, 2011, Order of the Jefferson Circuit Court denying a motion to vacate sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.
In 2004, appellant, a fourteen year old native of Cuba, immigrated to the United States with his mother. Prior to the events precipitating this appeal, appellant was residing in the United States as a lawful permanent resident.
On June 24, 2009, appellant was indicted by a Jefferson County Grand Jury upon first-degree assault, first-degree wanton endangerment, and carrying a concealed deadly weapon (Action No. 09-CR-001840). Appellant pleaded guilty pursuant to a plea agreement with the Commonwealth. By order entered December 10, 2009, the circuit court imposed pretrial diversion upon appellant for five years, and as a condition of diversion, appellant agreed to commit no additional criminal offenses during the next five years.
Then, some six months later, on January 22, 2010, appellant was charged with driving a motor vehicle without a license and first-degree possession of a controlled substance (Action No. 10-CA-000787). The Commonwealth and appellant again entered into a plea agreement. Pursuant to the plea agreement, appellant pleaded guilty to possession of a controlled substance, and the Commonwealth dismissed the charge of driving a motor vehicle without a license. By judgment entered May 6, 2010, the Jefferson Circuit Court sentenced appellant to two-years' imprisonment probated for a term of five years.
Shortly after being placed on probation, appellant left the country to visit Cuba. Upon appellant's return into the United States, on June 16, 2010, appellant was detained by representatives of the United States Department of Homeland Security (DHS). Ultimately, appellant was prevented from reentering because of his criminal convictions and was placed in federal custody.
On August 13, 2010, the Commonwealth filed a motion to revoke appellant's diversion in Action No. 09-CR-001840. The Commonwealth maintained that appellant breached the terms of his diversion by pleading guilty to possession of a controlled substance in Action No. 10-CR-000787. In response, appellant filed an RCr 11.42 motion to alter, amend, or vacate his sentences in Action Nos. 09-CA-001840 and 10-CA-000787. Appellant alleged that trial counsel did not inform him of the impact of his guilty pleas upon his immigration status. The trial court granted appellant an evidentiary hearing.
Appellant remained in federal custody and was not present at the hearing. Appellant's affidavit was admitted into evidence as an exhibit and an expert on immigration law introduced by appellant was the only witness to testify. The Commonwealth did not call any witnesses. The circuit court denied appellant's RCr 11.42 motion by order entered March 25, 2011. This appeal follows.
Appellant contends that the circuit court erred by denying his RCr 11.42 motion. Specifically, appellant asserts that the circuit court "erred in denying RCr 11.42 relief based solely upon trial counsel's failure to testify" at the evidentiary hearing. Appellant's Brief at 12.
The circuit court's denial of an RCr 11.42 motion will not be disturbed on appeal unless the findings of fact are clearly erroneous or the circuit court abused its discretion. Johnson v. Com., 180 S.W.3d 494 (Ky. App. 2005). The analysis of a claim of ineffective assistance of counsel begins with the two prong analysis set forth 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). To prevail on an RCr 11.42 motion, movant must demonstrate: (1) trial counsel's performance was deficient, and (2) this deficiency was prejudicial and deprived the defendant of a fair trial. Strickland, 466 U.S. 668. And, movant bears the heavy burden of identifying the specific acts or omissions that constitute counsel's deficient performance. Id.; Com. v. Pelfrey, 998 S.W.2d 460 (Ky. 1999).
In this case, the circuit court appointed counsel to represent appellant at the evidentiary hearing upon his RCr 11.42 motion. Appellant did not testify at the hearing; however, appellant's affidavit was admitted into evidence without objection from the Commonwealth. Therein, appellant averred that his trial counsel rendered ineffective assistance for failing to advise him of the adverse consequence of his guilty pleas upon his immigration status in both actions (Action Nos. 09-CR-001840 and 10-CA-000787). Appellant's trial counsel was not called as a witness at the hearing. The only witness testifying at the hearing was an immigration attorney called as an expert witness for appellant. The expert testified regarding the effect of appellant's guilty pleas upon his immigration status.
Following the evidentiary hearing, the circuit court determined that trial counsel did not render ineffective assistance. In its March 25, 2001, order, the court reasoned:
Without the benefit of [trial counsel's] testimony, the Court is left with Movant's factual allegations and the record as developed at trial. The Court cannot presume based on the additional evidence presented, that Movant's factual allegations are true during this stage in
the proceedings. Rather, Movant bears the burden "to establish convincingly that he was deprived of some substantive right which would justify the extra ordinary relief" afforded by RCr 11.42. Com. v. Campbell, 415 S.W.2d 614 (Ky. 1967). Movant has not met this burden and the Court cannot find that Movant is entitled to the moved for relief. (Footnote omitted.)
It is the general rule that uncontradicted testimony of a fact must be considered conclusive. Bullock v. Gay, 296 Ky. 489, 177 S.W.2d 883 (Ky. 1944). However, there are exceptions to this general rule. One such exception is set forth in Bullock as follows:
Generally, testimony given by a disinterested witness, . . . is to be believed; and in many cases it is said that the facts so given are to be taken as legally established. It does not necessarily follow, however, that a verdict or finding must be made in favor of the party introducing uncontradicted testimony, . . . There are many cases illustrating the principle that the testimony of a witness, though uncontradicted, is for the triers of facts, whether court or jury, who are not bound thereby.Id. at 885. Thus, if the uncontradicted testimony comes from an interested witness, it need not be considered conclusive as a matter of law; rather, the weight of such testimony is for the trier of fact. Id.
. . . .
'* * * It would seem clear that the fact that a person is interested in the outcome of the litigation may be taken into consideration in determining the weight to be given to his testimony.'
In this case, the record reflects that the only evidence as to trial counsel's advice in relation to the guilty pleas upon appellant's immigration status was presented through appellant's affidavit. Although the evidence was uncontradicted, appellant clearly qualifies as an "interested" witness. Thus, it was entirely proper for the circuit court as fact-finder to determine the proper weight to be given to appellant's testimony. See Bullock, 177 S.W.2d 883. Here, it is obvious that the circuit court did not believe the statements in the affidavit, and as trier of fact, we believe that the circuit court did not abuse its discretion by so doing. As such, we cannot conclude that the circuit court erred by denying appellant's RCr 11.42 motion. We are cognizant of appellant's reliance upon Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). However, without counsel's testimony, we agree with the circuit court that appellant's affidavit alone was insufficient to establish that he was not adequately advised of the consequences of his plea.
For the foregoing reasons, the Order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Daniel M. Alvarez
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky