Opinion
NO. 2013-CA-001407-MR
01-08-2016
WILLIAM EASLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 07-CR-00172 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; DIXON AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: William Easley appeals from the order of the Graves Circuit Court denying, without conducting an evidentiary hearing, his motion to alter, amend, or vacate his conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 in which he claimed his counsel was ineffective for failing to interview or subpoena Ruth Easley (Mother) and Virginia Easley (Aunt) to testify at trial. For the reasons set forth below, we affirm.
I. Factual and Procedural Background
The relevant facts were detailed by this Court on direct appeal in Easley v. Commonwealth, 2009-CA-000716-MR, 2011 WL 922370 (Ky. App. March 18, 2011):
In June 2007, Easley was indicted by the Graves County Grand Jury and charged with eighteen counts of felony exploitation of an adult pursuant to Kentucky Revised Statutes (KRS) 209.990 in connection with the handling of his mother's and aunt's financial affairs while acting as attorney-in-fact under their powers of attorney (POA). Easley was also charged with two counts of misdemeanor exploitation of an adult in connection with the handling of his aunt's affairs. The charges stemmed from transactions that occurred from March 2006 through March 2007.
Easley's trial began on January 20, 2009, and ended the following day. According to the Commonwealth's proof, Easley took over as attorney-in fact for his mother, Ruth Easley, in July 2005. By then, Ruth Easley was living in a nursing home. In November 2006, the Cabinet for Health and Family Services (Cabinet) was asked to investigate the possible financial exploitation of Ruth Easley. Sandra Halter, a representative from the Cabinet, spoke with Ruth Easley about her concerns.
When Ms. Halter spoke with Easley, he denied misusing his mother's money. As part of her investigation, Ms. Halter obtained the financial records for Ruth Easley's accounts. From these records, she created a spreadsheet of transactions for the accounts beginning in July 2005, when Easley took over as attorney-in-fact under POA, through March 2007.
Using her spreadsheet, Ms. Halter testified that from September 15, 2005, through December 12, 2005, Easley
wrote $16,630.00 in checks to himself from his mother's checking account. Similarly, from December 12, 2005, through June 19, 2006, Easley wrote $43,500.00 in checks to himself; from June 29, 2006, through December 28, 2006, he wrote $18,405.00 in checks to himself; and from January 2006 through March 2007, he wrote $3769.00 in checks to himself. Thus, from the period of September 2005 through March 2007, Easley wrote a total of $82,304.00 in checks to himself from his mother's account. The memo lines of many of the checks Easley wrote to himself were left blank.
The evidence indicated that there was sufficient money to pay Ruth Easley's bills when Easley took over as attorney-in-fact in the middle of 2005. Each month, approximately $5,000.00 was deposited into Ruth Easley's accounts from social security, a teacher's pension, and a separate investment account. Additionally a lump sum of about $66,000.00 had previously been deposited into her account as a result of a condemnation proceeding. However, Easley stopped paying his mother's nursing home bills, and several checks were returned due to insufficient funds. Ms. Halter testified that Easley failed to pay about $20,000.00 of his mother's bills, including $14,000.00 to his mother's nursing home; approximately $1,000.00 to a drug store; and about $2,900.00 to a local attorney. When Easley ceased acting as his mother's attorney-in-fact in March 2007, Ruth Easley's other son took control and paid his mother's bills from his own funds.
While acting as attorney-in-fact for his aunt, Virginia Easley, Easley wrote checks to himself from her account and took money from her account via ATM transactions. Easley also failed to pay his aunt's bills as well.
Despite knowing that his handling of his mother's and aunt's financial affairs was being investigated by the Cabinet, Easley did not respond to calls or a letter from Ms. Halter. Easley never provided any documents to Ms. Halter or police indicating the money he took from the accounts was spent for his mother's and aunt's benefits.
In his defense, Easley testified that he wrote the checks at issue and that those checks were written to reimburse him for expenses incurred in taking care of his mother's farm and aunt's financial affairs. He testified that both his mother and aunt told him to pay his expenses from their monies.
After a trial by jury, Easley was convicted of eighteen counts of knowingly exploiting an adult (over $300.00) and two counts of knowingly exploiting an adult (under $300.00). He was ultimately sentenced by the Graves Circuit Court to ten-years' imprisonment. His conviction and sentence were affirmed on direct appeal.
Easley subsequently filed a motion to set aside the judgment against him pursuant to RCr 11.42. In his motion, Easley alleged his counsel was ineffective for failing to investigate and subpoena Mother and Aunt, both of whom he believes would have provided exculpatory testimony. Easley acknowledged in his motion that his counsel did receive permission to depose Mother and Aunt; however, counsel expected Easley to pay the cost of the depositions, but did not receive the funds. The victims were never deposed.
Easley was not indigent as he had retained private counsel at this time.
In its reply to Easley's motion, the Commonwealth recounted the condition of Mother and Aunt at the time of trial. Mother was ninety-five years old, could not tend to her personal needs, and required assistance to get around. Mother was able to communicate, but was very hard of hearing. Aunt was elderly and not capable of testifying at all as she could not communicate. The trial court concluded that it was likely that neither Mother nor Aunt could have appeared in court at all.
Without conducting an evidentiary hearing, the trial court found Easley's claim contrary to the record. It further concluded trial counsel's decision not to investigate and subpoena Mother and Aunt was sound trial strategy, and as such, it did not meet the Strickland test for ineffective assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1986). This appeal followed.
II. Standard of Review
We review ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington. Appellant must show (1) that counsel's performance fell below an objective standard of reasonableness measured against prevailing norms; and (2) that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct at 2064. Both elements must be met before relief can be granted.
The reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance. Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997); McQueen v. Scroggy, 99 F.3d 1302, 1310-1311 (6th Cir. 1996), overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004). There is a strong presumption that the performance of defense counsel falls within the wide range of reasonable, professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Additionally, we will defer to the trial court's determinations in regards to the facts and witness credibility. See Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996).
Furthermore, when a trial court declines to hold an evidentiary hearing because it believes the evidence in the record sufficiently refutes the defendant's claim, 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). With these standards in mind, we review the trial court's decision to deny Easley's ineffective assistance of counsel claim without holding an evidentiary hearing.
III. Analysis
On appeal, Easley contends the trial court erred when it declined to hold an evidentiary hearing regarding his claim that his counsel was ineffective for failing to interview and subpoena Mother and Aunt. He insists that had they both been called to testify, their testimony would have been favorable and resulted in his acquittal. In support of his claim, Easley attached an affidavit to his motion signed by his wife, Judith Easley. In the affidavit, Judith states that when she visited Mother shortly after the conclusion of Easley's trial, Mother stated that she gave Easley permission to use her money "in any way he saw fit." For the reasons we discuss below, we conclude an evidentiary hearing was unnecessary due to Easley's claim being conclusively refuted by evidence in the record.
Easley claims that the nursing home refused to allow Mother to sign the affidavit.
In support of his claim, Easley first asserts that an individual acting under a power-of-attorney does not have to act in the principal's best interest but only act in a manner to which the principal would not object. From this, Easley further contends that because he was given permission to use Mother's money "in any way he saw fit," no jury would have possibly convicted him if this testimony had been presented at trial. We disagree.
Mother appointed Easley attorney-in-fact under a power-of-attorney. The power-of-attorney document imposed a fiduciary duty upon Easley as Mother's attorney-in-fact to act in her best interests rather than in his own personal interests. "As a general rule, we can conclude that such a [fiduciary] relationship is one founded on trust or confidence reposed by one person in the integrity and fidelity of another and which also necessarily involves an undertaking in which a duty is created in one person to act primarily for another's benefit in matters connected with such undertaking." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 485 (Ky. 1991). Therefore, the power-of-attorney required Easley to handle Mother's finances in her best interest not simply in a manner to which she would not object.
Easley's claim is further contradicted by statements Mother made to several witnesses, including employees of the nursing home, the investigator from the Kentucky State Police, and a worker from the Cabinet for Health and Family Services. At a suppression hearing, the Cabinet worker, Sandra Halter, testified that Mother complained to the nursing staff at her assisted living facility about Easley's handling of her finances. Mother's complaints prompted Halter to look further into the matter and were the impetus for initiating the criminal action against Easley. Halter also testified that Mother told her she was upset that Easley was taking money from her account and spending it on himself. This evidence, which was in the record before the trial court, conclusively refutes Easley's claim that Mother would have testified in his favor.
Easley next argues that counsel was ineffective for failing to interview or subpoena Mother and Aunt as counsel has a responsibility to investigate his client's case.
When representing a client, "counsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to trial counsel's judgments." Id.
Here, it is evident from the record that trial counsel considered his options and decided his best strategy was to show that the money Easley took from Mother's accounts was indeed spent for her benefit. Defense counsel used cross-examination of the Commonwealth's witness, receipts provided by Easley, and Easley's own testimony to prove its case. Mother's testimony was not essential to Easley's defense, and it is reasonable that counsel would want to avoid Mother potentially giving adverse testimony on direct or cross-examination.
Strategic decisions by trial counsel should be given "a strong presumption of correctness and the inquiry is generally at an end." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994)). The calling of witnesses falls within the realm of trial strategy. "Decisions relating to witness selection are normally left to counsel's judgment and this judgment will not be second-guessed in hindsight." Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000) (overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005)). While a trial court should not second-guess counsel's strategy, it is not free to merely speculate as to whether trial counsel's alleged deficiencies resulted from a tactical position. A trial judge "may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). However, if the record shows that counsel's alleged action or inaction was part of a strategic plan or that the defendant was not prejudiced, an evidentiary hearing is unnecessary. Id. (evidentiary hearing not required if allegations of ineffectiveness can be refuted by record). Focusing on the totality of the evidence on record, trial counsel's decision not to interview Mother was reasonable under the circumstances.
Moreover, had Mother been subpoenaed and provided testimony that matched what was claimed in Easley's affidavit, the Commonwealth would have impeached her using her prior inconsistent statements to Halter and the nursing home staff. As a result, damaging evidence that was previously inadmissible hearsay would have been presented to the jury. Based upon the entirety of the circumstances, we agree with the trial court that Easley failed to overcome the strong presumption that trial counsel's actions were the result of sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Having discerned no deficient performance, the trial court correctly found that Easley failed to carry his burden under Strickland.
Additionally, we reject Easley's contention that an evidentiary hearing was warranted to determine trial counsel's reasoning for not interviewing Mother or subpoenaing her to testify. It is clear from the evidence of record that, regardless of the content of her testimony, calling Mother to the stand would likely have been an exercise in futility or even damaging to the defense strategy. Again, where the allegations are clearly refuted by the record, an evidentiary hearing is unnecessary. Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
Lastly, Easley's claim that Aunt too would have testified that she gave him permission to spend her money however he pleased is unsupported and too vague to warrant discussion. Mere conclusory allegations that are not supported by specific facts do not justify an evidentiary hearing. RCr 11.42(2). Easley provides no facts to support his contention, and "we decline to allow defendants who support RCr 11.42 motions with only vague allegations as to what testimony witnesses would have provided to benefit from their self-created ambiguity by granting them entitlement to an evidentiary hearing[.]" Commonwealth v. Searight, 423 S.W.3d 226, 232 n.20 (Ky. 2014). Because Easley did not satisfy RCr 11.42's specificity requirement, summary dismissal of his ineffective assistance claim regarding trial counsel's failure to interview Aunt was proper.
IV. Conclusion
For the foregoing reasons, the order of the Graves Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky