Opinion
NO. 2015-CA-001057-MR
06-23-2017
DANIEL KEITH NEWMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Daniel Keith Newman, pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky David Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRANT CIRCUIT COURT
HONORABLE REBECCA LESLIE KNIGHT, JUDGE
ACTION NO. 09-CR-00042 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND TAYLOR, JUDGES. TAYLOR, JUDGE: Daniel Keith Newman brings this pro se appeal from Findings of Fact, Conclusions of Law and Order entered by the Grant Circuit Court on June 18, 2015, denying his motion for post-conviction relief made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. For the reasons stated herein, we affirm.
BACKGROUND
In 2010, a jury found Newman guilty of two counts of first-degree sodomy and one count of attempted sexual abuse. He was sentenced to life in prison. On direct appeal, the Supreme Court of Kentucky affirmed Newman's convictions but vacated his sentence and remanded his case for a new sentencing hearing. Newman v. Com., 366 S.W.3d 435 (Ky. 2012). On remand, a jury recommended twenty years for each count of first-degree sodomy to run concurrently for a total of forty years. The trial court sentenced Newman accordingly by judgment entered April 5, 2013.
Newman subsequently appealed the resentencing judgment to the Kentucky Supreme Court. During the appeal, he signed a Waiver of Right to Appeal and moved the Supreme Court to dismiss the appeal. The Supreme Court granted Newman's motion to dismiss on September 20, 2013. Newman then filed this motion for relief pursuant to RCr 11.42 in the Grant Circuit Court, claiming ineffective assistance of appellate and trial counsel. The circuit court denied Newman's motion without an evidentiary hearing by order entered on June 18, 2015. This appeal follows.
STANDARD OF REVIEW
In Kentucky, ineffective assistance of counsel claims are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), recognized by the Kentucky Supreme Court as controlling precedent in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). To prevail upon an RCR 11.42 motion, a movant must demonstrate: (1) trial counsel's performance was deficient, and (2) the deficiency was prejudicial and deprived defendant of a fair trial. Strickland, 466 U.S. 668. In this case, appellant bears a 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). For the reasons stated, appellant has failed to meet his burden to establish ineffective assistance of counsel in this appeal.
Additionally, when reviewing an RCr 11.42 motion, the circuit court must conduct an evidentiary hearing only when there is "a material issue of fact that cannot be determined on the fact of the record." RCr 11.42(5). An evidentiary hearing is not required in cases where the record refutes the claim of error, or "where the allegations, even if true, would not be sufficient to invalidate the conviction." Harper v. Com., 978 S.W.2d 311, 314 (Ky. 1998) (citing Brewster v. Com., 723 S.W.2d 863 (Ky. 1986)).
ANALYSIS
Newman's first argument on appeal is that he received ineffective assistance of appellate counsel because his counsel failed to inform him that his waiver of appeal to the Kentucky Supreme Court could operate to prevent him from asserting an ineffective assistance claim against the attorney who assisted him during his second sentencing hearing. The trial court correctly points out that the waiver was made voluntarily and Newman was under no duress to sign same. More importantly, the waiver did not prejudice his rights to bring an RCr 11.42 claim against trial counsel, and thus he cannot demonstrate to this Court how he has been prejudiced by executing the waiver. Accordingly, the claim fails on its face. See Hollon v. Com., 334 S.W.3d 431 (Ky. 2010).
Newman's second argument on appeal is that his trial counsel was ineffective for failing to call at trial four witnesses who he believes their testimony would have somehow altered the outcome of his trial. Newman specifically references Regina Hogan, "a lady named Teresa" and "two boys" as witnesses. Newman claims that his neighbors Regina and Teresa, were "neighborhood watch type people" who "had an eye on all that was going on" and could have testified to all they observed on the day of the crimes. Newman offers no specifics about what Regina or Teresa would have testified to at trial other than to show that the Commonwealth had lied about some evidence introduced at trial. He further asserts that the two unidentified boys, alleged to be friends of the victim, were present when the alleged offense took place. Again, he fails to indicate what the boys would have testified to or how their testimony would have changed the verdict at trial. Newman insists that failure to call these witnesses "prejudiced his ability to effectively defend against the charges."
Daniel Keith Newman fails to cite to anywhere in the record on appeal regarding the Commonwealth of Kentucky's evidence introduced at trial that he believes can be refuted. See Kentucky Rules of Civil Procedure 76.12(4)(c)(iv) (requiring a party to make "ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings . . . .") (Emphasis added.)
Incredulously, Newman notes that all four witnesses were persons who should have been called by the Commonwealth to testify and that the two boys were even listed on the Commonwealth's witness list at trial but not called to testify. It is hard to conceive a claim for ineffective assistance against the defense attorney in not calling these witnesses, when Newman all but concedes this testimony could have aided the Commonwealth's case against him.
Based on Newman's unsubstantiated and vague allegations concerning these purported witnesses' testimony, Newman has failed to establish how he was prejudiced or demonstrate how the result of his trial would have been different had the these witnesses testified. Strickland, 466 U.S. 668. We thus reject this claim of error.
Finally, Newman alleges the trial court erred by not affording him an evidentiary hearing. As noted by the trial court, Newman's allegations were all clearly refuted on the face of the record below. We agree and thus the trial court properly denied the motion without an evidentiary hearing. See RCr 11.42(5); Stanford v. Com., 854 S.W.2d 742 (Ky. 1993).
For the foregoing reasons, the order of the Grant Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Daniel Keith Newman, pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky David Abner
Assistant Attorney General
Frankfort, Kentucky