Opinion
NO. 2011-CA-002018-MR
04-19-2013
MAURICE O. FLIPPINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda D. Bullock Assistant Public Advocate Department of Public Advocacy LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 06-CR-000624
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Maurice O. Flippins brings this appeal from an October 14, 2011, Order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.
In February 2006, Flippins was indicted by a Jefferson County Grand Jury for murder, complicity to commit murder, robbery in the first degree, complicity to commit robbery in the first degree, tampering with physical evidence, complicity to commit tampering with physical evidence, persistent felony offender in the second degree, and two counts of possession of a firearm by a convicted felon.
Flippins' indictment was consolidated with the indictment of a co-defendant, Tamathia Mitchell. Mitchell eventually entered into a plea agreement with the Commonwealth and agreed to testify against Flippins at trial. Flippins subsequently entered a guilty plea pursuant to Alford v. North Carolina, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). On November 18, 2008, in accordance with the plea agreement, Flippins was sentenced to a total of twenty-years' imprisonment.
Thereafter, Flippins timely filed a motion to vacate his sentence of imprisonment pursuant to RCr 11.42 claiming ineffective assistance of trial counsel. By order entered October 14, 2011, the circuit court denied Flippins' motion without an evidentiary hearing. This appeal follows.
To prevail upon a claim for ineffective assistance of trial counsel upon a guilty plea, defendant must establish that trial counsel's performance was deficient and 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." Sparks v. Com., 721 S.W.2d 726, 728 (Ky. App. 1986). When reviewing a trial court's denial of an RCr 11.42 motion without an evidentiary hearing, we must initially determine whether there exists a "material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001). If so, an evidentiary hearing is warranted, and it was error for the circuit court to deny the RCr 11.42 motion without such a hearing. Our review proceeds accordingly.
Flippins contends that the circuit court erred by denying his RCr 11.42 motion without an evidentiary hearing. Specifically, Flippins claims that his trial counsel rendered ineffective assistance by advising him to plead guilty. Flippins points to the statements of two potential defense witnesses, the victim's mother, and Mitchell's daughter. Flippins asserts that these witnesses would have testified that Mitchell, rather than Flippins, shot the victim. Flippins contends that trial counsel failed to apprise him of such exculpatory evidence before entry of the guilty plea.
In the case sub judice, the statements of the witnesses were not exculpatory. Although the witnesses stated that Mitchell shot the victim, both witnesses placed Flippins at the scene of the crime along with Mitchell. As Flippins was charged both as a principal and as a complicitor, these statements could demonstrate that Flippins was guilty of complicity to commit murder. And, there were also credibility issues with the testimony of the victim's mother, as she changed her story during the course of a police interview. The victim's mother initially told police that the victim stated Mitchell had shot him, but she later changed her story to say the victim related that Flippins shot him. Also, it must be remembered that Flippins was facing a death penalty sentence but for his entering into the plea agreement.
Consequently, we conclude that Flippins' allegations of error were refuted upon the face of the record and Flippins' trial counsel was not deficient. We concur with the trial judge's analysis and conclusion that Flippins presented nothing more in his motion than conclusory allegations unsupported by specific facts. Thus, we hold that the circuit court properly denied Flippins' RCr 11.42 motion without an evidentiary hearing.
For the foregoing reasons, the Order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Linda D. Bullock
Assistant Public Advocate
Department of Public Advocacy
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky