Opinion
NO. 2012-CA-000153-MR
06-07-2013
ANTHONY TYLER FULTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Krista A. Dolan M. Brooke Buchanan Asst. Public Advocates Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 08-CR-00438
OPINION
AFFIRMING
BEFORE: COMBS, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Anthony Tyler Fulton appeals the denial of his ineffective assistance of counsel claim without an evidentiary hearing. We affirm.
On June 5, 2008, Fulton was indicted by a grand jury for first-degree burglary, third-degree assault, theft of identity and second-degree persistent felony offender (PFO). On October 6, 2008, Fulton pled guilty in exchange for the burglary charge being amended to fourth-degree assault and the dismissal of the PFO and the identity theft charges. On November 3, 2008, the circuit court sentenced Fulton to three years' incarceration on the third-degree assault charge and twelve months on the fourth-degree assault charge, to be served concurrently.
Fulton filed a motion to vacate his judgment under Kentucky Rules of Criminal Procedure (RCr) 11.42, alleging four separate claims of ineffective assistance of counsel. The circuit court denied the motion.
Fulton appeals, raising two ineffective assistance of counsel claims. The first claim, considered below, was that his counsel was ineffective for failing to request a competency hearing. The second claim, not raised below, was that his counsel was ineffective for failing to object to an inappropriate comment by the circuit court.
Fulton must establish deprivation of his constitutional right to counsel to be entitled to the extraordinary relief of RCr 11.42. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), Fulton must show that his counsel's performance was incompetent and prejudiced him because it fell below an objective standard of reasonableness and there is a reasonable probability that the result of the proceeding would have been different but for counsel's errors. Hatcher v. Commonwealth, 310 S.W.3d 691, 696 (Ky.App. 2010). Because Fulton is challenging his counsel's performance in regard to the plea process, under Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), he must show that had it not been for the errors of counsel there is a reasonable probability that he would not have pled guilty and insisted on going to trial. Commonwealth v. Carneal, 274 S.W.3d 420, 431 (Ky. 2008).
On appeal, we examine counsel's performance and any resulting deficiencies de novo. Brown, 253 S.W.3d at 500. When an evidentiary hearing is not held on an RCr 11.42 motion, "[o]ur review is confined 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). A hearing is required if there is a material issue of fact that cannot be determined on the face of the record. A hearing is not necessary if the record refutes the claim of error or if "the allegations, even if true, would not be sufficient to invalidate the conviction." Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). "The 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, 452-453 (Ky. 2001).
Fulton argues that counsel had a basis for believing he could be mentally impaired and, therefore, should have moved for a competency hearing. Fulton argues that counsel should have known he was mentally impaired because (1) Fulton's mother told his counsel that he had mental health issues but that he was not receiving a prescribed narcotic while in jail; (2) counsel knew that there was a report from Dr. Noelker, but never reviewed it; and (3) counsel knew Fulton wanted to be evaluated for competence.
Even if true, Fulton's allegations do not establish there was a genuine issue regarding his competency. "In Kentucky, the standard of competency is whether the defendant has a substantial capacity to comprehend the nature and consequences of the proceedings against him and to participate rationally in his defense." Alley v. Commonwealth, 160 S.W.3d 736, 739 (Ky. 2005). Even if Fulton had mental health issues, it does not automatically follow that he was mentally ill, or that his mental condition made him incompetent to enter a plea. "Mental illness" has a distinct definition from "incompetency to stand trial" under Kentucky Revised Statutes (KRS) 504.060. Bishop v. Caudill, 118 S.W.3d 159, 162 (Ky. 2003). A defendant may be mentally ill without being incompetent to stand trial. Id.
Fulton has not alleged that he was unable to comprehend the nature and consequences of the proceedings against him or participate rationally in his defense when entering a plea. He does not allege that if evaluated, he would have been found incompetent or would not have entered a plea, but would have proceeded to trial once his competency returned. He does not allege there was information contained in Dr. Noelker's report that would demonstrate his incompetency. Under these facts, Fulton's counsel did not have reasonable grounds to believe that he was incompetent and, therefore, had no basis for requesting a competency hearing pursuant to KRS 504.100. Fulton has shown neither error, nor prejudice.
On appeal, for the first time, Fulton argues that he received ineffective assistance of counsel because his trial counsel failed to object to an improper statement by the circuit court at a pretrial conference. The circuit court stated that given the charges Fulton was facing, it would be a "risky move to go to trial." Although Fulton admits that he failed to raise this issue before the circuit court in his RCr 11.42 motion, he requests we review the issue because his present counsel was incompetent for failing to raise this issue before the circuit court and we can review the underlying deficiency of the circuit court under the palpable error standard.
We are without the authority to review issues not raised before or decided by the circuit court. Meyers v. Commonwealth, 381 S.W.3d 280, 286 (Ky. 2012). We are also without authority to review ineffective assistance of counsel claims pertaining to deficient performance of counsel in failing to raise issues appropriately in requests for post-conviction relief. Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010). Palpable error review relates to direct appeals from unpreserved errors and is distinct from collateral proceedings regarding ineffective assistance of counsel. See generally Leonard v. Commonwealth, 279 S.W.3d 151, 156-159 (Ky. 2009).
Failure to object to the circuit court's isolated statement is insufficient to establish either error or prejudice. Fulton has not shown that his trial counsel's performance was unreasonable or claimed that this statement caused or influenced his decision to plead guilty. See Hatcher, 310 S.W.3d at 696; Carneal, 274 S.W.3d at 431.
Accordingly, we affirm the Kenton Circuit Court's denial of Fulton's motion for relief of judgment due to ineffective assistance of counsel.
ALL CONCUR. BRIEFS FOR APPELLANT: Krista A. Dolan
M. Brooke Buchanan
Asst. Public Advocates
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky