Opinion
NO. 2016-CA-000926-MR
05-12-2017
SHAWN FERGUSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shawn Ferguson Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Mark D. Barry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 11-CR-003223-001 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. JONES, JUDGE: Acting without the assistance of counsel, the Appellant, Shawn Ferguson, appeals from the Jefferson Circuit Court's order denying his motion to vacate, correct, or set aside his conviction and sentence. Having reviewed the record in conjunction with the applicable legal authority, we affirm.
I. Background
Ferguson was indicted by the Jefferson County Grand Jury in October of 2011 on three counts of burglary in the third degree, two counts of burglary in the second degree, two counts of robbery in the first degree, one count of burglary in the first degree, one count of theft by unlawful taking over $500 but less than $10,000, two counts of theft of motor vehicle registration plate, two counts of obscuring the identity of a machine over $500 but less than $10,000, and failure to be in possession of an operator's license. Ginger Alwood was indicted along with Ferguson with respect to the two counts of burglary in the first degree and one count of robbery in the first degree. Ferguson retained counsel to represent him. The trial court appointed counsel to represent Alwood.
The Commonwealth offered Alwood a plea agreement, which she accepted. As part of the agreement, the Commonwealth agreed to reduce the charges against her to one count of facilitation to robbery in the first degree and one count of facilitation to burglary in the first degree in exchange for Alwood's truthful testimony at any proceedings against Ferguson. The plea agreement, which Alwood signed, stated that on August 10, 2011, Alwood assisted Ferguson "who unlawfully entered a residence and threatened John Arms while armed with a deadly weapon with the intent to accomplish a theft."
A jury trial was scheduled with respect to the charges against Ferguson. Prior to trial, the Commonwealth made Ferguson a plea agreement offer, which he accepted. Prior to being allowed to withdraw his not guilty plea, Ferguson acknowledged that he had discussed the charges and possible defenses with his attorney and was aware of his rights. He also acknowledged that his guilty plea was "freely, knowingly, and intelligently made." In exchange for Ferguson's plea to guilty on the charges, the Commonwealth agreed not to indict Ferguson as a persistent felony offender ("PFO") in the first degree. The parties further agreed that the case would be passed for a sentencing hearing.
The trial court provided an excellent summary of the sentencing hearing, which we adopt as our own as follows:
A lengthy sentencing hearing was held on April 5, 2013. Defense counsel presented to the Court a document entitled "Notice of Information to be Considered at Sentencing" with attached documentation, including letters in support of the Defendant, certificates of completion of various programs offered in the jail, and program and attendance records for AA/NA and Life Skills meetings. Defense counsel then called five witnesses, including the Defendant, to provide the Court with testimony regarding the Defendant's participation in the Enough Is Enough program offered in the jail, the Defendant's changed behavior after being incarcerated, and the Defendant's explanation as to why he committed these offenses and the remorse he feels for the crimes he committed.
The Commonwealth then called seven witnesses who testified about five different incidents which resulted in the multi-count indictment. Two of those witnesses, Mark Arms and his father, John Arms, testified about being robbed in John Arms' home. Counts Five, Six and Seven of the Indictment charging the Defendant with two counts of Robbery in the First Degree and one count of Burglary in the First Degree relate to Mark and John Arms. Mark Arms testified that on August 11, 2011, he and his father were at the hospital visiting his mother who was dying of cancer. His father then drove Mark
Arms home and went to his own home. Mark Arms received a phone call from his father saying that someone was in his house. Mark Arms drove there and saw the Defendant who claimed that he was with ADT, a security company. The Defendant then ran into the house, grabbed a pistol and held it to Mark Arms' head, pulling the trigger three times. The Defendant then fled, knocking John Arms to the ground. The Defendant ran out of the house and jumped into a red pick-up truck, leaving the area. John Arms testified that he's eighty-two (82) years old. When he arrived home from visiting his wife in the hospital he saw that his home was in shambles. He saw someone in his home so he called 911 and then called his son. When his son arrived he saw him confront the Defendant. He said the Defendant was sweaty and slipped out of Mark Arms' grip. The Defendant had a gun and was waving it in the air in a threatening manner. John Arms testified that the Defendant ran through the hallway knocking him to the floor. He testified that jewelry, cash, guns, and other items were taken from his home by the Defendant during the course of this incident.
At the conclusion of all of the testimony both counsel made closing statements. Defense counsel emphasized the changes in the Defendant as seen by his family members, the positive testimony of the director of the Enough is Enough program regarding the Defendant's amenability to treatment, and the remorse expressed by the Defendant for his criminal behavior. Defense counsel acknowledged to the Court that the Defendant was not eligible for probation or shock probation and that the Defendant would have to serve eighty-five (85) percent of the sentence the Court imposed before becoming parole eligible. Defense counsel then urged the Court to sentence the Defendant to ten (10) years which he said would be a significant punishment without depreciating the seriousness of the offenses. The prosecutor stated in her closing remarks that the Defendant had previously been sentenced to ten (10) years from a prior felony conviction, that the testimony of the victims regarding the impact these crimes had on their lives justified a thirty (30) year sentence at eighty-five percent parole
eligibility with some consecutive years at (20) percent parole eligibility.(R. 253-56). A judgment of conviction and sentence was entered in October of 2014.
The Court sentenced the Defendant to maximum sentences on the Class B felonies and some of the Class D felonies, with two (2) year sentences on the remaining Class D felonies. The sentences were ordered to run concurrently for a total sentence of twenty (20) years with eighty-five (85) percent parole eligibility.
In April of 2015, acting without the assistance of counsel, Ferguson filed an RCr 11.42 motion seeking to be relieved from his conviction and sentence. Although somewhat difficult to follow, Ferguson's argument before the trial court appeared to be that his counsel was ineffective because he failed to object that John Arms's testimony was contradictory to that of Mark Arms, in that Mark Arms testified that Ferguson put the gun to his head whereas John Arms testified that Ferguson waived the gun in the air. The trial court appointed counsel from the Department of Public Advocacy (DPA) to represent Ferguson. However, after undertaking a review of the record in accordance with KRS 31.110(2)(c), appointed counsel moved the trial court for permission to withdraw on the basis that the proceeding was "not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense." Id. The trial court granted counsel's motion. Following a response by the Commonwealth, the trial court denied Ferguson's motion without an evidentiary hearing. This appeal followed.
Kentucky Rules of Criminal Procedure.
Kentucky Revised Statutes. --------
II. Analysis
As part of this appeal, Ferguson requests an evidentiary hearing on his RCr 11.42 motion. Not every claim of ineffective assistance merits an evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). The law on this issue is clear: the circuit court need only conduct an evidentiary hearing if (i) the movant establishes that the error, if true, entitles him or her to relief under RCr 11.42; and (ii) the motion raises an issue of fact that "cannot be determined on the face of the record." Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008). In other words, "an evidentiary hearing is not required when the record refutes the claim of error or when the allegations, even if true, would not be sufficient to invalidate the conviction." Cawl v. Commonwealth, 423 S.W.3d 214, 218 (Ky. 2014).
The trial court did not err in failing to conduct an evidentiary hearing. Ferguson's claim is based on testimony and proceedings that are part of the record in this case. As such, no evidentiary hearing was necessary to resolve Ferguson's motion.
Because Ferguson entered a guilty plea, a claim that he was afforded ineffective assistance of counsel requires him to show: (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 pled guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001); see also Hill v. Lockhart, 474 U.S. 52 (1985). In other words, "to obtain relief [on an ineffective assistance claim] a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)) (alteration in original).
To be valid, a guilty plea must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986). "Whether a guilty plea is voluntarily given is to be determined from the totality of the circumstances surrounding it." Rigdon v. Commonwealth, 144 S.W.3d 283, 287 (Ky. App. 2004). Defense counsel's alleged ineffectiveness in failing to investigate and prepare a defense for trial is part of the totality of the circumstances surrounding the alleged involuntary plea. Commonwealth v. Tigue, 459 S.W.3d 372, 393 (Ky. 2015).
Ferguson was facing up to seventy years on the charges to which he pled guilty, a fact he was made aware of during these proceedings. In exchange for his plea, the Commonwealth agreed not to charge Ferguson as a PFO in the first degree. Had Ferguson been convicted on the underlying charges and the PFO, his sentence would have greatly exceeded the twenty-year sentence he actually received. Additionally, several eye witnesses, including his co-defendant, were going to testify against Ferguson at any trial. Nowhere in his motion has Ferguson indicated that there was anything to refute that he committed the crimes at issue. In fact, he has admitted his guilt. His only argument regarding his counsel's performance is that counsel did not object to the fact that John Arms and Mark Arms testified to slightly different versions of the events. We agree with the trial court that counsel's failure in this regard is immaterial. Ferguson had already admitted his guilt and agreed to accept a plea. Counsel's job at the sentencing was to convince the trial court that Ferguson deserved a lower-range sentence. Counsel attempted to do this by presenting various testimony and evidence regarding Ferguson's remorse and attempts to reform himself. Counsel performed more than adequately, which is demonstrated by the fact that the trial court imposed a total sentence ten years lower than that requested by the Commonwealth. In sum, Ferguson failed to prove that he received ineffective assistance as part of either the plea proceedings or the sentencing hearing. His constitutional rights were not violated. Accordingly, the trial court correctly denied his motion.
III. Conclusion
For the reasons set forth above, we affirm the Jefferson Circuit Court's May 9, 2016 Opinion and Order denying Ferguson's RCr 11.42 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Shawn Ferguson
Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky