Opinion
NO. 2015-CA-000743-MR
03-10-2017
LISA BETH COTTRELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Lisa Beth Cottrell Pro se Pewee Valley, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 11-CR-002520 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT, AND NICKELL, JUDGES. KRAMER, CHIEF JUDGE: Lisa Beth Cottrell appeals the Jefferson Circuit Court's order denying her RCr 11.42 motion to vacate her sentence. After a careful review of the record, we affirm because her ineffective assistance of counsel and evidentiary hearing claims lack merit, and her circumstantial evidence claim is waived because she did not raise it in the circuit court.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cottrell was indicted on eight counts of first-degree robbery. The Commonwealth provided her a plea offer in which it proffered, in exchange for Cottrell's guilty plea to all counts, to recommend a sentence of thirteen years of imprisonment. The offer also stated that Cottrell would have to serve eighty-five percent of that sentence, with restitution to be determined within sixty days. Cottrell accepted the plea offer and moved to enter her guilty plea in accord with the plea agreement. The circuit court then accepted Cottrell's guilty plea and sentenced her to thirteen years of imprisonment.
She then moved to vacate the judgment against her under RCr 11.42 and requested an evidentiary hearing pertaining to her motion. The circuit court denied her RCr 11.42 motion without holding an evidentiary hearing.
Cottrell now appeals, contending that she received the ineffective assistance of counsel because counsel did not explain to her the difference between first-degree robbery and the lesser-included offense of second-degree robbery or that circumstantial evidence in the robberies constituted second-degree robbery instead of first-degree robbery. She also alleges that the circuit court should have granted her request for an evidentiary hearing.
II. STANDARD OF REVIEW
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) (internal citations omitted). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ." Where the trial court fails to hold an evidentiary hearing on an RCr 11.42 claim, appellate 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 other words, absent an evidentiary hearing, we will only affirm if the record is adequate to decide the claim.
III. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Cottrell first contends that she received the ineffective assistance of counsel because counsel did not explain to her the difference between first-degree robbery and the lesser-included offense of second-degree robbery, or that the evidence in the case constituted second-degree, rather than first-degree, robbery.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (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.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001).
First-degree robbery is defined as follows:
(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
KRS 515.020(1).(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.
However, second-degree robbery is defined as follows:
(1) A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.KRS 515.030(1).
In the present case, the police report concerning the robbery of Hibachi Sushi stated that the suspect "walked into [the] business and robbed business of business cash. Suspect had a note and indicated that she had a weapon."
This Court was unable to read the actual police reports in this case, which were supposedly included with the discovery in the case that was on a disc included with the record. It appears that the disc is damaged, which is likely preventing our review of its contents. However, Cottrell attached copies of the police reports for each charge to her appellate brief, and the Commonwealth cited to those attachments from Cottrell's brief when discussing the various police reports. Therefore, because the Commonwealth acknowledges that the attachments to Cottrell's brief are accurate copies of the police reports from Cottrell's case, we will base our decision upon our review of them.
The police report from the robbery of the Dixie Bowl provided that an employee of the Dixie Bowl stated that the suspect handed her a demand note, and while she "was reading the note, the suspect stated[:] 'Do exactly as the note states or I'll shoot you. I have a gun.'" The employee told police that while this was occurring, the suspect had her right hand inside a purse, indicating that she was armed with a handgun.
Regarding the White Castle robbery, an employee of the restaurant told police that the suspect approached the counter and "produced a demand note that read[:] 'I have a gun in my purse pointed right at you. Don't be stupid.' The suspect ha[d] her right [hand] in her mid-sized pink purse at the time the note [was] being read[,] indicating she [was] armed with a gun."
As for the Long John Silver's robbery, the police report stated as follows: "Suspect entered the business. . . . Suspect confronted the victim from across the counter and presented a demand note stating that she was armed with a gun. Suspect demanded and received the business cash. . . ."
The police report from the robbery at Thorntons provided that an employee of Thorntons told police that while at the counter, the suspect stated to the employee: "'You seem like a really nice girl. I think you know what's in here. I don't want to pull the trigger. Give me all the 20's in the drawer.'" The employee explained to police that "[w]hile this statement was being made, the suspect had her right hand inside her purse[,] clearly indicating she was armed with a gun."
Regarding the robbery of the Frisch's restaurant, the police report states: "Weapon type = Pistol, Weapon Feature = Automatic." Additionally, the manager of the restaurant told police that when the suspect approached the counter, the suspect handed the manager "a note and told her to read it. The manager looked at the note which read something to the effect of 'just give me the money.'"
As for the El Nopal robbery, an employee of the business explained to police that he was working at the cash register when the suspect approached and handed him a demand note. That employee "was unable to read English so he motioned for his co-worker . . . to come over and help the suspect. [The co-worker] approached the cash register and the suspect showed him the same demand note." The note read, "I have a gun and I want the money in the register."
During the robbery of the Shoney's restaurant, an employee of the restaurant told police that while she was working at the cash register, the suspect approached,
asked her to read something and handed [the employee] a small piece of notebook paper that had writing on it. [The employee remembered that the paper stated:] "Stay calm. You have two guns pointed at you right now." The rest of the wording indicated that the suspect wanted the money from the cash register but [the employee] could not recall exactly what it said. . . . [T]he suspect explained[:] "There is a guy outside that will kill me if you don't cooperate."
During the Dixie Bowl, White Castle, Long John Silver's, El Nopal, and Shoney's robberies, the suspect threatened the victims by either telling them that she had a gun or by giving them a note telling them that at least one gun was being used in the robbery. Additionally, during the robbery at Thorntons, the suspect told the victim that she didn't "want to pull the trigger," which was clearly a threat that she had a gun. The police report from the Frisch's robbery specifically stated that an automatic pistol was involved in the robbery. Finally, the police report from the Hibachi Sushi robbery stated that the suspect "had a note and indicated that she had a weapon." Although it is unclear how the suspect "indicated that she had a weapon" in the Hibachi Sushi robbery, in the other seven robberies, she clearly threatened that she had a gun.
In Gamble v. Commonwealth, 319 S.W.3d 375, 376 (Ky. 2010), the defendant approached a bank teller's window and passed her "a bag and a note that read, 'This is a robbery. I have a gun. Quietly empty your drawer fast.' Gamble also told [the teller], 'I have a gun.'" Gamble moved for a directed verdict on the charge of first-degree robbery, which the circuit court denied. See Gamble, 319 S.W.3d at 377. On appeal, the Kentucky Supreme Court noted and held that "Gamble specifically stated that he had a gun, both in writing and verbally. This amounts to threatening the immediate use of a dangerous instrument" under KRS 515.020(1)(c). Gamble, 319 S.W.3d at 379.
The reasoning in Gamble applies to at least the seven robberies in this case in which Cottrell threatened—either orally or in writing—that she had a gun, or in which she threatened her victim by displaying a gun. Therefore, in those seven robberies—at Dixie Bowl, White Castle, Long John Silver's, El Nopal, Shoney's, Thorntons, and Frisch's—Cottrell "threaten[ed] the immediate use of a dangerous instrument upon any person who [was] not a participant in the crime." Consequently, the elements of first-degree robbery under KRS 515.020(1)(c) were met in those instances, and Cottrell's defense counsel did not perform deficiently in advising her to plead guilty to those seven counts.
Cottrell alleges that during the Frisch's robbery, what she showed the victim was not an actual gun, but a cigarette lighter that looked like a gun. However, the police report stated that an automatic pistol was used in the robbery, and Cottrell moved to enter her guilty plea in accord with the plea agreement, in which she acknowledged that she threatened her victims by using a gun. So, the victim saw Cottrell with a gun and was threatened by it. Therefore, the requirements for a first-degree robbery conviction under KRS 515.020(1)(c) were met. --------
Further, first-degree robbery is a Class B felony. See KRS 515.020(2). The penalty for each Class B felony is "not less than ten (10) years nor more than twenty (20) years" of imprisonment. KRS 532.060(2)(b). Pursuant to KRS 532.110(1)(c),
(1) When multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, the multiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentence, except that:
As previously stated, Cottrell was sentenced to a total of thirteen years of imprisonment for all eight counts. Even if we were to assume for argument's sake that counsel performed deficiently concerning the seven counts we discussed above, Cottrell's claim still lacks merit. This is because when one considers how much prison time she could have been sentenced to for those seven counts and the fact that she only received a total of thirteen years of imprisonment for all eight counts, Cottrell cannot show that she was prejudiced by counsel's allegedly deficient performance.. . .
(c) The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years[.]
The police report regarding the eighth robbery at Hibachi Sushi reflects that Cottrell "indicated" that she had a gun, although it is unclear how she so "indicated." In Swain v. Commonwealth, 887 S.W.2d 346, 347 (Ky. 1994), the defendant was convicted on five counts of first-degree robbery. In three of those convictions, "there was no evidence to prove anything more than menacing gestures by [Swain] and assumptions by the victims that [Swain] may have been in possession of an object which was a deadly weapon or dangerous instrument." Swain, 887 S.W.2d at 348. The Kentucky Supreme Court held that "it was error for the trial court to deny [Swain's] motion for a directed verdict on the first[-]degree robbery charges in which no gun was seen or mentioned." Id.
The police report in the present case does not specify how Cottrell "indicated" that she had a gun during the Hibachi Sushi robbery, i.e., whether she showed the victim a gun, informed them verbally or in writing that she had a gun, or merely made "menacing gestures," which the victim assumed meant that she had a gun. Therefore, we cannot determine whether counsel performed deficiently in failing to explain the difference between first-degree robbery and second-degree robbery to Cottrell regarding this charge against her.
However, even if we were to assume that counsel performed deficiently in failing to so advise Cottrell, she still cannot show that she was prejudiced. Although second-degree robbery is a Class C felony, see KRS 515.030(2), and the sentence for a Class C felony is "not less than five (5) years nor more than ten (10) years," KRS 532.060(2)(c), Cottrell was sentenced on the aggregate of all eight counts to a total of thirteen years of imprisonment. Considering she could have received a much higher total sentence, see KRS 532.110(1)(c), she cannot show that she was prejudiced in this case by any alleged failure of counsel to inform her of the difference between first-degree robbery and second-degree robbery. Consequently, her ineffective assistance of counsel claim lacks merit.
B. EVIDENTIARY HEARING
Finally, Cottrell contends that the circuit court should have granted her request for an evidentiary hearing. However, because Cottrell's claims were conclusively refuted by the record, there was no need for an evidentiary hearing. See RCr 11.42(5); Lewis, 411 S.W.2d at 322.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Lisa Beth Cottrell
Pro se
Pewee Valley, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky