Opinion
NO. 2015-CA-001227-MR
05-04-2018
LARRY HART APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Larry Hart, pro se Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIM KALTENBACH, JUDGE
ACTION NO. 12-CR-00037 OPINION
AFFIRMING
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BEFORE: JONES, SMALLWOOD, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Larry Hart appeals from an order of the McCracken Circuit Court that denied his Motion to Vacate, Correct Sentence or Set Aside filed pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. For the reasons set forth below, we affirm.
On January 27, 2012, Hart was indicted for rape in the first degree - victim under twelve years of age, and sexual abuse in the first degree - victim under twelve years of age, both charges involving his step-daughter. On August 9, 2012, Hart entered a guilty plea to both offenses, pursuant to a plea agreement with the Commonwealth, which recommended the minimum sentence of twenty years for rape in the first degree and ten years for sexual abuse in the first degree, to run concurrently.
On October 3, 2012, Hart filed a motion to withdraw his guilty plea and the circuit court appointed new counsel to represent him for purposes of presenting that motion. The circuit court conducted an evidentiary hearing on the motion to withdraw the guilty plea on November 13, 2012, with both Hart and his trial counsel testifying. On November 14, 2012, the circuit court entered an order denying the motion. On December 11, 2012, the circuit court entered a final judgment sentencing Hart to twenty years in prison for rape in the first degree and sexual abuse in the first degree consistent with the Commonwealth's recommendation.
On October 2, 2014, Hart filed an RCr 11.42 motion alleging ineffective assistance of counsel and a motion for an evidentiary hearing. The motion raised the same issues he had presented in his motion to withdraw his guilty plea in 2012. On December 1, 2014, the trial court entered an order denying the RCr 11.42 motion and the motion for an evidentiary hearing. This appeal followed.
Upon review of 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 a material issue of fact exists that cannot be conclusively resolved upon the face of the record, the circuit court must grant the motion for an evidentiary hearing. Id. The analysis of a claim of ineffective assistance of counsel begins with the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). To prevail upon an RCr 11.42 motion, movant must demonstrate: (1) trial counsel's performance was deficient, and (2) the deficiency was prejudicial and deprived defendant of a fair trial. Strickland, 466 U.S. at 687. With respect to a guilty plea, the standard requires the defendant to establish:
(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. Com., 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Com. v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012). "It is insufficient to merely state that with different advice, the movant would not have insisted on going to trial. The test is objective, not subjective. A reasonable probability exists if the defendant convinces the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Com., 381 S.W.3d 322, 328 (Ky. App. 2012) (internal quotations and citations omitted). See also Stiger v. Com., 381 S.W.3d 230, 237 (Ky. 2012).
Hart contends that defense counsel was ineffective because counsel provided inaccurate information involving DNA test results and his potential parole eligibility. More specifically, Hart asserts that counsel told him the Commonwealth had DNA evidence that was a positive match to him and that he would be found guilty if he went to trial, while the DNA tests indicated he was not a contributor to the test samples. Hart also states that counsel told him that he would be eligible for parole after serving four years under the Commonwealth's plea offer, but that he actually would not be eligible for parole until he had served 85 percent of his twenty-year sentence or seventeen years. See, e.g., Kentucky Revised Statutes (KRS) 439.3401(1)(b) and (d); KRS 439.3401(3).
The issue of his parole eligibility was addressed at both his guilty plea hearing and the hearing on his motion to withdraw his guilty plea. For instance, at the guilty plea hearing, Hart responded positively when the circuit court asked him twice if he understood that he would have to serve 85 percent of his twenty-year sentence under the plea agreement. In Edmonds v. Commonwealth, 189 S.W.3d 558, 568 (Ky. 2006) (quotation omitted), the Court stated: "[I]f the information given by the court at the [plea] hearing corrects or clarifies the earlier erroneous information given by the defendant's attorney and the defendant admits to understanding the court's advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant." Hart also agreed, in response to an inquiry by the court, with counsel's statement at the hearing that they had fully discussed this issue prior to entry of plea. At the hearing on his motion to withdraw his guilty plea, Hart acknowledged that he had been told by the trial judge that he had to serve 85 percent of his sentence before becoming eligible for parole. In addition, defense counsel testified that he discussed the fact that under the Commonwealth's plea offer, Hart would be required to serve 85 percent of his sentence before becoming eligible for parole. Defense counsel also stated that he told Hart the Commonwealth had rejected a counter-offer seeking a plea agreement to a lower-class offense without the requirement that he would have to serve 85 percent of his sentence before becoming eligible for parole.
The DNA test results were a major issue raised in his motion to withdraw his guilty plea. At the hearing, Hart indicated that he had received a copy of the DNA test results several weeks prior to entry of the guilty plea and that he understood the results were negative as to the presence of his DNA in the test samples. Hart stated that defense counsel also told him the DNA test results showed that the DNA in the samples "[were] not his." Defense counsel testified that he thoroughly discussed the negative DNA test results with Hart and the effect of the results on his situation including a possible trial prior to entry of the guilty plea.
Accordingly, Hart has failed to show that defense counsel was deficient or that he was prejudiced by any misadvice or deficient performance by his attorney in order to establish ineffective assistance of counsel as to the DNA test results or his parole eligibility under the guilty plea agreement. See, e.g., Stiger, supra (involving parole eligibility).
Hart also contends that defense counsel was ineffective for failing to file a motion to suppress his statements and confession to the police. The police began investigating the charges around December 4, 2012, after receiving information from the mother of the victim that Hart had engaged in sexual activity with her daughter, Hart's step-daughter, for several years. After interviewing the victim and obtaining a search warrant, the police seized several items from Hart's residence. On December 21, 2012, the police interviewed Hart after giving him Miranda warnings during which he made incriminating statements, and afterward signed a written statement admitting to the sexual conduct with the victim. Hart alleges that he had retained private counsel and the police had not contacted counsel prior to conducting the interview. Hart was arrested after the interview and arraigned in district court the next day with counsel being appointed to represent him at that time.
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court established the prophylactic rule that, before interrogating a suspect who is in police custody, police officers must warn the suspect that he has the right to have an attorney present. Thereafter, in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Court held "an accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him[.]" Edwards, 451 U.S. at 484-85. Edwards set forth a bright-line rule that all police questioning must cease after an accused requests counsel in order to protect the accused from badgering or overreaching by police. Smith v. Illinois, 469 U.S. 91, 98, 105 S. Ct. 490, 494, 83 L. Ed. 2d 488 (1984).
Hart alleges that prior to entering the plea, he told defense counsel that he believed his confession was inadmissible based on information from his prior private counsel that the police could not interview him without notifying counsel beforehand. However, the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292, n. 4, 108 S. Ct. 2389, 2394, 101 L. Ed. 2d 261 (1988); Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424 (1977). A defendant may waive the right whether or not he is already represented by counsel and the decision to waive need not itself be counseled. Michigan v. Harvey, 494 U.S. 344, 352-53, 110 S. Ct. 1176, 1181, 108 L. Ed. 2d 293 (1990).
In this case, the interview with Hart occurred prior to his arraignment and appointment of counsel. While he alleges that he had retained counsel at the time, Hart did not personally seek or assert a right to have counsel present at the time of the interview. Hart does not challenge the fact that he was given his Miranda rights or that he voluntarily waived his right to counsel. Thus, he has not shown that a motion to suppress his statements would have been successful. Defense counsel was more aware of the circumstances of the interview and any possible legal challenges to it, and elected not to file a motion to suppress. Accordingly, Hart has failed to overcome the presumption that counsel rendered effective assistance or show that he was prejudiced because counsel did not file a motion to suppress his confession.
For the foregoing reasons, we affirm the order of the McCracken Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Larry Hart, pro se
Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky