Opinion
NO. 2017-CA-000950-MR
06-29-2018
TONY C. HODGE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Tony Hodge Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 06-CR-00158-001 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND NICKELL, JUDGES. KRAMER, JUDGE: Tony C. Hodge, proceeding pro se, appeals the Madison Circuit Court's order denying his motion to vacate his sentence pursuant to RCr 11.42. After a careful review of the record, we affirm because Hodge's ineffective assistance of counsel claims lack merit.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tony C. Hodge was indicted on charges of: murder, a capital offense; attempted murder; first-degree robbery; and first-degree burglary. Counsel was appointed for Hodge. His two attorneys were Hon. Valetta Browne and Hon. Sam Cox. Months later, the Commonwealth filed its notice of intent to seek the death penalty. Another attorney then joined Hodge's defense team, Hon. Jerry W. Gilbert. Mr. Gilbert was added to the defense team because he had experience with death penalty cases, whereas Ms. Browne and Mr. Cox did not. The circuit court approved funds for the defense team to hire a private investigator and a mental health expert. The court declined to grant funds for them to hire a mitigation specialist, so they used a mitigation specialist from a separate Department of Public Advocacy (DPA) Office.
Hodge was initially indicted with co-defendant Douglas Hall, but their cases were subsequently severed so that they could be tried separately.
Hodge moved to enter a guilty plea to the charges. His motion stated that the Commonwealth had agreed to recommend a sentence of life imprisonment for the capital murder charge and twenty years on each of the other charges, to be served concurrently. The circuit court accepted his guilty plea and sentenced him in accord with the plea agreement.
Hodge moved pro se to vacate his sentence pursuant to RCr 11.42, raising various claims of the ineffective assistance of trial counsel. Hodge moved for an evidentiary hearing concerning his RCr 11.42 motion. Counsel was appointed to represent him, and counsel filed a supplemental RCr 11.42 motion on Hodge's behalf. The circuit court denied RCr 11.42 relief without holding an evidentiary hearing.
Hodge appealed, and this Court affirmed the denial of his RCr 11.42 motion. See Hodge v. Commonwealth, No. 2012-CA-000025-MR, 2013 WL 5969835, *1 (Ky. App. Nov. 8, 2013), discretionary rev. granted (Ky. Aug. 14, 2014). Hodge then appealed to the Kentucky Supreme Court. That Court vacated the decision of the Court of Appeals and remanded the case to the circuit court with directions for the circuit court to hold an evidentiary hearing. See Hodge v. Commonwealth, No. 2013-SC-000783-D, *1 (Ky. Aug. 14, 2014).
On remand, an evidentiary hearing was held. Following the hearing, the circuit court again denied Hodge's RCr 11.42 motion.
Hodge now appeals, contending that the circuit court erred when it: (a) denied his claim that counsel rendered ineffective assistance by failing to investigate and request a psychological examination of Hodge's competency level for the requisite mens rea due to his voluntary intoxication during the commission of the crime; and (b) denied his claim that counsel rendered ineffective assistance by causing him to enter a guilty plea that was not knowingly, voluntarily, or intelligently entered.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009) (citations omitted). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.
Both of Hodge's claims are ineffective assistance of counsel claims.
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.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (quotation marks and footnote omitted).
III. ANALYSIS
A. FAILURE TO INVESTIGATE AND REQUEST PSYCHOLOGICAL EXAM
Hodge first asserts that the circuit court erred when it denied his claim that his attorneys rendered ineffective assistance by failing to investigate and request a psychological examination of Hodge's competency level for the requisite mens rea due to his voluntary intoxication during the commission of the crime. We begin our analysis of this issue by noting that Hodge presented no testimony during the evidentiary hearing of a need for a psychological examination to determine competency, nor of what the results of such an examination would have been. In fact, postconviction counsel stated at the beginning of the RCr 11.42 evidentiary hearing that he would not be addressing the claim of the ineffective assistance of counsel due to counsels' failure to obtain a psychological examination to determine competency. Postconviction counsel then informed the circuit court that Hodge would be allowing that claim to "rest on the record as it stands." Without evidence supporting this claim, Hodge has failed to show that counsels' performance was deficient in this regard. Consequently, this ineffective assistance of counsel claim fails.
To the extent that Hodge also alleges that he received the ineffective assistance of counsel when counsel failed to investigate the possible defense of involuntary intoxication during the commission of the crimes, his claim lacks merit. As noted by the circuit court, although many of the witnesses who testified during the evidentiary hearing stated that they were aware that Hodge had a history of substance abuse issues, none of them (other than Hodge himself) could testify that Hodge was intoxicated immediately prior to and during the commission of his crimes. Therefore, even if defense counsel had conducted a more in-depth investigation by contacting these witnesses about Hodge's substance abuse immediately prior to and during the commission of his crimes, such an investigation would have been fruitless.
Although Hodge himself testified that he had a history of substance abuse and that he was high when he committed the crimes, he nevertheless cannot prove that counsel rendered ineffective assistance in allegedly failing to investigate voluntary intoxication as a defense. Hon. Sam Cox, who was part of Hodge's defense team, testified that the team researched the voluntary intoxication defense, spoke with other attorneys about the defense, and talked to Hodge about how it is rarely a successful defense and how it tends to be an aggravator. Hon. Jerry Gilbert, who was also part of Hodge's defense team, testified that as part of his investigation, he looked into Hodge's substance abuse history. Yet another member of Hodge's defense team, Hon. Valetta Browne, attested that one of Hodge's ex-girlfriends shed some light on his substance abuse issues. However, Ms. Browne testified that she personally has never seen a case where the defense of voluntary intoxication was successful. Ms. Browne did not think it would provide a successful defense to Hodge because the case was about robbing someone to get money to buy drugs, so alleging he was already intoxicated going into the crime would not be helpful. All three attorneys on Hodge's defense team testified that Hodge never expressed to them that he was dissatisfied with them, that he did not think they knew what they were doing, that the case was being mishandled, or that he was pleading guilty because he did not think he had any other alternative. Hodge acknowledged during his testimony that his attorneys told him that voluntary intoxication is not a good defense. Consequently, Hodge's defense team did investigate the defense of voluntary intoxication, but strategically, they did not think it was a good defense in this case. Therefore, Hodge is unable to show that counsels' performance was deficient or that but for their allegedly deficient performance, there is a reasonable probability that he would have proceeded to trial on a voluntary intoxication defense.
Moreover, Ms. Browne testified that if Hodge had gone to trial, he could have received sentences of the death penalty, life without parole, or life without parole for twenty-five years. However, by pleading guilty, he received a lesser sentence than all those options: life imprisonment. Ms. Browne also attested that Hodge had told defense counsel throughout their representation of him to "keep the needle out of his arm." The circuit court found that "during the pendency of this case, the defense had engaged in a goal[-]oriented approach to avoid the death penalty pursuant to Defendant's wishes." Accordingly, even if Hodge were able to show that counsels' performance was deficient, he cannot show that there is a reasonable probability that he would not have entered a guilty plea but would have insisted on going to trial in this case, considering the potential sentences he would have been facing and the evidence of his desire to avoid the death penalty. Therefore, this claim lacks merit.
B. VALIDITY OF GUILTY PLEA
Hodge also alleges that the circuit court erred when it denied his claim that counsel rendered ineffective assistance by causing him to enter a guilty plea that was not knowingly, voluntarily, or intelligently entered. Specifically, he contends that Mr. Cox and Ms. Browne did not have experience in death penalty cases, and they were unaware of the requirements set forth in the American Bar Association's (ABA's) Guidelines in Death Penalty Cases, which DPA (where Mr. Cox and Ms. Browne were employed) had adopted as policy. Because they were unaware of the guidelines, Hodge contends that there was a lengthy delay in obtaining a factual investigator and in filing motions in his capital case.
In support of his claim, Hodge cites the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.4(C) (Revised Edition February 2003), which provides:
As soon as possible after designation [of counsel to defend a capital case], lead counsel should assemble a defense team by:
1. Consulting with the Responsible Agency regarding the number and identity of the associate counsel;
2. Subject to standards of the Responsible Agency that are in accord with these Guidelines and in consultation with associate counsel to the extent practicable, selecting and making any appropriate contractual agreements with non-attorney team members in such a way that the team includes:
a. at least one mitigation specialist and one fact investigator;
b. at least one member qualified by training and experience to screen individuals for the presence of mental or
GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES, Guideline 10.4(C) (AM. BAR ASS'N 2003).psychological disorders or impairments; and
c. any other members needed to provide high quality legal representation.
In the present case, Mr. Cox and Ms. Browne were appointed soon after Hodge was indicted. Neither of them had tried a death penalty case, but at that point in time, the Commonwealth had not decided to pursue the death penalty in Hodge's case. In fact, the Commonwealth did not file its notice of intent to seek the death penalty until seven months after Hodge was arrested. Two weeks later, the circuit court granted the motions of Hodge and his co-defendant for separate trials. The Commonwealth waited another three weeks before it designated which defendant it intended to proceed to trial against first. The following month, Lynda Campbell, who was the head of the DPA's Richmond Office (where Mr. Cox and Ms. Browne worked) contacted Mr. Gilbert, who had tried death penalty cases previously, to see if he would join Hodge's defense team. Mr. Gilbert reviewed the case for four to six weeks before entering his appearance in the case on April 2, 2007. Mr. Gilbert testified during the evidentiary hearing that he would have been first chair if Hodge's case had proceeded to trial. Hodge's defense team assembled the other non-attorney members of the team by adding a factual investigator and a mitigation specialist. The defense team also had Hodge examined by Dr. David Fink to determine if Hodge had mental issues and if he was competent to stand trial. Consequently, the standard established by the ABA's Guideline mentioned above was met in this case, and Hodge's arguments to the contrary lack merit.
To the extent that Hodge alleges that he was disadvantaged by lengthy delays in obtaining a factual investigator and in filing motions in his capital case, he has not presented evidence to show that more time for investigating and filing motions would have benefitted him. Therefore, this is a conclusory allegation, and we will not consider it.
Moreover, to the extent that Hodge claims he felt as though he had no choice but to plead guilty because of the inexperience of Mr. Cox and Ms. Browne, neither of them was the lead attorney in his case. Mr. Gilbert testified that he would have been the first chair attorney if the case had proceeded to trial, and he had prior experience trying death penalty cases. In fact, Hodge does not allege that Mr. Gilbert was inexperienced, but he bases his claim solely on the death penalty trial inexperience of Mr. Cox and Ms. Browne. The circuit court found that Mr. Gilbert "was well-versed in death penalty cases and the procedures associated with [the] same." Mr. Gilbert became a member of Hodge's defense team five months before Hodge moved to enter his guilty plea. When he joined the team, he had already spent four to six weeks reviewing Hodge's case. Therefore, Hodge's claim about Mr. Cox and Ms. Browne is misplaced because neither of them was the lead attorney in the case, and Hodge makes no allegation that Mr. Gilbert was inexperienced, or that anything concerning Mr. Gilbert caused Hodge to feel as though he had no alternative but to plead guilty. Consequently, this claim lacks merit because Hodge cannot show that there is a reasonable probability that he would have insisted on going to trial but for the alleged inexperience of two attorneys on his defense team who were not going to be the lead attorney at trial.
Although neither Mr. Cox nor Ms. Browne had ever tried a death penalty case, Ms. Browne had previously represented a murder defendant who pleaded guilty. Additionally, testimony was presented that both Mr. Cox and Ms. Browne received death penalty case training by DPA while Hodge's case was pending. Regardless, neither of them was going to be the lead attorney if Hodge's case had gone to trial. --------
Accordingly, the order of the Madison Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Tony Hodge
Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky