Opinion
NO. 2017-CA-000512-MR
11-09-2018
JOSHUA JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joshua Johnson, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 13-CR-00064 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, MAZE AND SMALLWOOD, JUDGES. SMALLWOOD, JUDGE: Joshua Johnson appeals from an order of the Boyle Circuit Court denying his Kentucky Rules of Civil Procedure (RCr) 11.42 motion alleging ineffective assistance of counsel. On appeal, Appellant argues that he should have been given a hearing on the motion and that counsel was ineffective in preparing for trial. We find no error and affirm.
Appellant was found guilty of multiple counts of first-degree criminal mischief, third-degree burglary, and theft by unlawful taking over $500. He was also found to be a persistent felony offender in the second degree. Appellant was sentenced to a total of 20 years in prison. Appellant subsequently filed the underlying RCr 11.42 motion alleging ineffective assistance of counsel. That motion was denied by the trial court without a hearing and this appeal followed.
On appeal, Appellant claims that he should have been given a hearing on his motion and that his trial counsel was ineffective for not asking for a continuance prior to trial and for not adequately preparing for trial. These arguments stem from the fact that trial counsel was not appointed to Appellant until three days before trial.
Appellant had previous counsel, but that attorney withdrew and a new attorney was appointed.
To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.Id. at 691-92, 104 S.Ct. at 2066-67 (citations omitted). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. at 2067. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. Additionally, "a hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
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, 466 U.S. at 689-690, 104 S.Ct. at 2065 (citations omitted).
We find that the trial court correctly denied the motion without a hearing because the allegations raised can be resolved by reference to the record. Additionally, we find that trial counsel was not ineffective. On the day of trial, Appellant, his counsel, the Commonwealth, and the trial judge met in the judge's chambers to discuss pretrial matters. The trial court specifically questioned Appellant and his counsel as to whether they were ready for trial and whether they had enough time to prepare for trial. The court expressed concern about the short amount of time trial counsel had been on Appellant's case. Appellant stated that he had met with his counsel and talked to him on the phone multiple times. Appellant also stated that counsel discussed with him the evidence against him and his defenses. Finally, Appellant indicated that his counsel went over the discovery with him. Trial counsel also stated that he was prepared for trial and that Appellant did not wish for him to seek a continuance.
Furthermore, Appellant's only claim that counsel was not prepared for trial is his bare assertion of that issue. He makes no claim as to what counsel could have done differently. "In seeking post-conviction relief, the movant must aver facts with sufficient specificity to generate a basis for relief." Lucas v. Commonwealth, 465 S.W.2d 267, 268 (Ky. 1971). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Here, the record shows that Appellant's trial counsel participated fully in the proceedings by making pre-trial motions, questioning witnesses, and introducing exhibits. Counsel's performance was not deficient.
Based on the foregoing, we find that the trial court correctly denied Appellant's RCr 11.42 motion without a hearing. Appellant specifically told the trial court that he and his trial counsel were ready for trial and that they had spoken to one another on multiple occasions. Furthermore, trial counsel actively participated at trial and Appellant makes no specific argument as to what counsel could have done differently; therefore, we affirm the judgment on appeal.
ALL CONCUR. BRIEF FOR APPELLANT: Joshua Johnson, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky