Opinion
NO. 2018-CA-001128-MR
01-24-2020
WILLIAM STEVE GIBSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: William Steve Gibson, pro se Pineville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Lauren R. Lewis Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE PAUL K. WINCHESTER, JUDGE
ACTION NOS. 12-CR-00061, 12-CR-00062, 12-CR-00063, AND 12-CR-00064 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: William Gibson appeals from an order denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion alleging ineffective assistance of counsel. Appellant raises four issues on appeal in which he alleges ineffective assistance of counsel. We hold that the trial court did not err in denying his motion; therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
In July of 2012, Appellant was indicted in four separate cases. In 12-CR-00061, Appellant was indicted on one count of first-degree burglary, one count of first-degree wanton endangerment, and one count of first-degree fleeing and evading police. These charges arose from an incident where Appellant entered the residence of his estranged wife, pointed a shotgun at his wife and daughter, and evaded police by leaving the scene in a vehicle. In 12-CR-00062, Appellant was indicted on one count of first-degree burglary and one count of theft by unlawful taking. These charges stem from when Appellant unlawfully entered another person's residence and stole a shotgun. In 12-CR-00063, Appellant was indicted on one count of first-degree promoting contraband. This charge arose when Appellant was being processed into the McCreary County Detention Center and was found to have morphine and oxycodone on his person. In 12-CR-00064, Appellant was indicted on six counts of failure to make a required disposition of property over $500. These charges came about because Appellant received money from someone on six different occasions for the purpose of buying parts to fix a vehicle, but Appellant did not purchase the parts or make the repairs. When considering all four indictments, the maximum amount of prison time Appellant would have been eligible for was seventy years.
Kentucky Revised Statutes (KRS) 511.020.
On December 3, 2013, Appellant entered a guilty plea to the four indictments. Per the Commonwealth's offer, Appellant's two charges of first-degree burglary were amended to second-degree burglary and the theft by unlawful taking charge was dismissed. The rest of the charges remained the same. The Commonwealth recommended that Appellant's sentences in each indictment run consecutively for a total sentence of fifteen years. On January 13, 2014, Appellant was sentenced in accordance with the Commonwealth's recommendation.
This guilty plea was given in open court. The motion to enter a guilty plea setting forth the details of the Commonwealth's offer was not filed until December 18, 2013.
On January 20, 2017, Appellant filed an RCr 11.42 motion to vacate his sentence. He alleged multiple instances of ineffective assistance of counsel. On May 8, 2018, the trial court held an evidentiary hearing. Appellant and his trial counsel, Carolyn Clark-Cox, both testified. On July 5, 2018, the trial court entered an order denying Appellant's motion. This appeal followed.
ANALYSIS
Appellant raises four issues on appeal in which he alleges his trial counsel was ineffective. Our review of the allegations of ineffective assistance of counsel as it pertains to guilty pleas is as follows:
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (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 pleaded guilty, but would have insisted on going to trial.
Evaluating the totality of the circumstances surrounding the guilty plea is an inherently factual inquiry which requires consideration of "the accused's demeanor, background and experience, and whether the record reveals that the plea was voluntarily made." While "[s]olemn declarations in open court carry a strong presumption of verity," "the validity of a guilty plea is not determined by reference to some magic incantation recited at the time it is taken [.]" The trial court's inquiry into allegations of ineffective assistance of counsel requires the court to determine whether counsel's performance was below professional standards and "caused the defendant to lose what he otherwise would
probably have won" and "whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory." Because "[a] multitude of events occur in the course of a criminal proceeding which might influence a defendant to plead guilty or stand trial," the trial court must evaluate whether errors by trial counsel significantly influenced the defendant's decision to plead guilty in a manner which gives the trial court reason to doubt the voluntariness and validity of the plea.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (citations omitted). "Appellant is not guaranteed errorless counsel or counsel that can be judged ineffective only by hindsight, but rather counsel rendering reasonably effective assistance at the time of trial." Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citations omitted).
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same way.Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984) (citations omitted).
With the above standard of review in mind, we now turn to Appellant's allegations of ineffective assistance of counsel. Appellant first argues that his counsel was ineffective for failing to investigate the facts surrounding the indictments or interview witnesses. We disagree. Trial counsel met with Appellant on at least six different occasions while he was in prison. She also spoke with him each time he was brought to court for a hearing and spoke with him on the phone. Each time, counsel discussed the charges against Appellant. In addition, trial counsel had an investigator who spoke with Appellant's wife and child and who prepared a report. Testimony also indicated that the investigator met with Appellant and trial counsel on at least one occasion. Furthermore, no trial date had been set for the four cases and trial counsel testified she would have been prepared when the time came.
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. "A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct. The investigation must be reasonable under all the circumstances." Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) (citations omitted). Here, trial counsel spoke and met with Appellant on multiple occasions. She also had an investigator look into some of the facts of the cases and speak with two witnesses. While Appellant claims trial counsel could have done more, when Appellant pleaded guilty the need for further investigation ended. We believe trial counsel made a reasonable investigation up to the point Appellant pleaded guilty.
Appellant also alleges that his trial counsel did not hire a mental health expert or discuss possible mental health related defenses with him. We find this issue without merit. Trial counsel did hire a mental health expert who evaluated Appellant for competency to stand trial and participated in a two-day competency hearing. It is reasonable to assume that this same expert might have testified had the cases against Appellant gone to trial.
In addition, trial counsel did discuss mental health defenses with Appellant. She filed a motion notifying the trial court and the Commonwealth that she was intending to raise a mental illness/insanity defense. Appellant claims that she should have also raised the defenses of extreme emotional disturbance and voluntary intoxication. Appellant testified that these mitigating defenses would have been appropriate in his case, but that counsel did not discuss them with him. Trial counsel testified that she could not remember if she discussed these two other defenses with Appellant. It is possible that the facts of this appeal could have supported extreme emotional disturbance and voluntary intoxication defenses; however, these would have come in the form of jury instructions at the end of trial. Had the case gone to trial, counsel could have used these defenses. Even if we were to assume it was error for counsel not to discuss these two possible defenses during the time period before Appellant pleaded guilty, we do not believe such an error was "so serious that counsel's performance fell outside the wide range of professionally competent assistance." Bronk, 58 S.W.3d at 486 (citation omitted). Trial counsel did discuss Appellant's mental state with him and was intending to raise it at trial. Trial counsel's defense preparation was reasonable at the time Appellant pleaded guilty.
Appellant also briefly argues that his counsel was ineffective because she had a conflict of interest. He alleges that trial counsel and his wife, one of the victims, were friends. This argument is also without merit. Appellant provides no evidence to support this allegation and trial counsel unequivocally testified that she did not know Appellant's wife.
Appellant's final argument on appeal is that his trial counsel was ineffective for telling him he should take the Commonwealth's offer because it would allow him to avoid a violent offender status, make him eligible for parole after serving 20% of his sentence, and that he would be paroled the first time he became eligible. He argues that trial counsel could not guarantee this outcome and it was error for her to suggest otherwise. This issue was not raised before the trial court in any pleading, motion, or witness questioning; therefore, we cannot address it. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989); see also Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky. App. 1996). "[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, by and through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citations omitted).
CONCLUSION
Based on the foregoing, we conclude that the trial court did not err in denying Appellant's RCr 11.42 motion and we affirm the court's judgment.
ALL CONCUR. BRIEF FOR APPELLANT: William Steve Gibson, pro se
Pineville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Lauren R. Lewis
Assistant Attorney General
Frankfort, Kentucky