Opinion
NO. 2016-CA-000522-MR
06-15-2018
DONTE L. JONES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Donte L. Jones, pro se Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 10-CR-000384 OPINION
AFFIRMING
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BEFORE: DIXON, D. LAMBERT, AND MAZE, JUDGES. DIXON, JUDGE: Donte Lamont Jones, pro se, appeals from a Jefferson Circuit Court order denying his RCr 11.42 motion to set aside his conviction due to ineffective assistance of counsel. Finding no error, we affirm.
In January 2010, police in Louisville investigated two home invasions that occurred 2.5 miles apart in the span of approximately twelve hours. The victims at both residences reported being robbed at gunpoint by two men, one black and one white. Thereafter, Stephanie Carver, having heard about the robberies, became suspicious of her cousin, Robert Carter, and his friend, Donte Jones, when Jones came to her home with a white laptop computer. After Carver informed the police of her suspicions, Detective Matthew Crouch assembled photo-packs containing pictures of Carter and Jones. Of three victims to view the photo packs, two were able to identify Carter as the white suspect, while only one victim, Alvin McDowell, was able to identify Jones as the black suspect. Jones was later arrested, and he was in possession of a white laptop with a serial number matching the one stolen from one of the victims, Jermaine Keltee. Carter was also arrested, and he was in possession of a television that was also stolen from the Keltee residence.
Following a joint jury trial, Carter and Jones were convicted of five counts of complicity to first-degree robbery. Jones was acquitted of intimidating a participant in the legal process, which related to his alleged conduct toward Stephanie Carver. At the end of the guilt phase, Jones entered an Alford plea to two remaining charges (severed prior to trial) of possession of a handgun by a convicted felon. The jury recommended concurrent terms of twelve years' imprisonment for each count of robbery, and the plea agreement provided for concurrent sentences of seven years on each handgun count, running concurrently with the robbery sentence. The trial court thereafter sentenced Jones to twelve years' imprisonment. A panel of this Court affirmed Jones's convictions on direct appeal in an unpublished opinion. Jones v. Commonwealth, 2011-CA-000175-MR, 2014 WL 2536836 (Ky. App. 2014). In April 2015, Jones filed an RCr 11.42 motion to vacate his conviction due to ineffective assistance of counsel. The Jefferson Circuit Court denied the motion without an evidentiary hearing, and this appeal followed.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
In an RCr 11.42 proceeding, an evidentiary hearing is warranted 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). "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).
We evaluate claims of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance, a movant must show that counsel made serious errors amounting to deficient performance and that those alleged errors prejudiced the defense. Id. at 687. The standard for reviewing counsel's performance is whether the alleged conduct fell outside the range of objectively reasonable behavior under prevailing professional norms. Id. at 688. To establish actual prejudice, a movant "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. The Court further advised that, when reviewing an ineffective assistance claim, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies[;] . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697.
Jones contends trial counsel rendered ineffective assistance when she failed to file a motion to dismiss the indictment after Detective Crouch allegedly gave perjured testimony to the grand jury. He alternatively contends counsel erred by failing to introduce a recording of the grand jury testimony at trial.
Counsel received pre-trial discovery from the Commonwealth that included Detective Crouch's investigative report. In the report, Crouch referenced the photo-pack process and stated, "All victims identified Carter and Jones." That statement, however, is inaccurate because only McDowell positively identified Jones from the photo-pack. Crouch repeated this inaccurate statement during his grand jury testimony. Counsel questioned Crouch regarding the inaccuracies in his statements during two pretrial hearings. Likewise, at trial, counsel effectively cross-examined Crouch regarding his statements and emphasized the issue in opening and closing arguments to the jury.
In Commonwealth v. Baker, 11 S.W.3d 585, 588 (Ky. App. 2000), this Court noted a strong presumption of regularity attaches to grand jury proceedings. Where non-constitutional irregularities are alleged, "dismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury's decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations." Id. (internal quotation marks and citation omitted).
The circuit court addressed Jones's argument on this issue, stating, in relevant part:
In this case, the police found Jones with a laptop that matched the description of one taken from a victim. A different victim identified Jones from a photo lineup with 80 percent certainty. Thus, there is not grave doubt that an indictment would have been handed down without Detective Crouch's allegedly perjured testimony. Because sufficient grounds to dismiss the indictment did not exist, trial counsel did not err by making such a motion.
We agree with the trial court's analysis on this issue and find no error. Further, Jones alternatively argues counsel rendered ineffective assistance by failing to introduce a recording of Crouch's grand jury testimony at trial for impeachment purposes. The record reflects counsel effectively cross-examined Crouch regarding the inaccuracies and fully presented this issue to the jury. Jones has not shown a reasonable probability the outcome of his trial would have been different had counsel introduced the grand jury recording. Jones's argument on this issue is without merit.
For his second argument, Jones contends counsel provided ineffective assistance by failing to object to the in-court identifications of him made by Jermaine Keltee, Jailah Keltee, and Alvin McDowell. Jones contends these identifications were unduly suggestive because Jermaine had not previously identified Jones in the photo-pack, and McDowell had identified Jones with only 80% certainty. Jermaine's teenage daughter, Jailah, had not participated in viewing a photo-pack.
Prior to trial, Jones moved to suppress the out-of-court identification of him and to preclude any in-court identification, contending the photo-pack procedure used by Detective Crouch was unduly suggestive. Following a hearing, the trial court denied the motion, concluding the photo-packs were not unduly suggestive. This Court affirmed that determination in Jones's direct appeal. Jones, 2014 WL 2536836, at *10.
In Fairley v. Commonwealth, 527 S.W.3d 792, 797 (Ky. 2017), the Kentucky Supreme Court made clear that the inability of a witness to identify a suspect in a photo lineup does not preclude an in-court identification. The Court explained, in relevant part:
We agree that the proper course is to permit the witness to attempt to identify the suspect in court and, if an identification is made, allow the defense to thoroughly cross-examine the witness concerning his failure to make a prior identification. The jury is fully capable of determining what weight to assign to the in-court identification.Id. Here, counsel thoroughly cross-examined the Keltees and McDowell on the identification issue. We are not persuaded counsel rendered ineffective assistance by failing to object to the in-court identifications.
Next, Jones contends counsel was ineffective because she failed to conduct a pretrial investigation of Stephanie Carver's credibility. Jones's claim is premised on his assertion that Carver had previously falsely reported him to child protective services. In its order addressing the issue, the trial court stated:
In his RCr 11.42 motion, Jones attached a letter from the Cabinet, dated March 22, 2010, indicating a case involving Jones was being closed because the family did not require the Cabinet's services. The letter provided no details regarding the Cabinet's investigation.
Jones has not provided any specific facts to support his allegation that Carver falsified a report to CPS. Nor has he explained how his trial counsel could have discovered this allegation through a reasonable, pretrial investigation. Failure to provide required factual support provides the basis for summary dismissal of this claim for ineffective assistance. RCr 11.42; Sanders, 89 S.W.3d at 390. Regardless, the jury acquitted Jones of his alleged offenses against Carver. He has not explained
how Carver's credibility was relevant to his actual convictions. Even if trial counsel did somehow err by failing to impeach Carver's credibility, he did not provide any basis for any prejudice it caused at trial.We agree with the trial court's reasoning and conclude Jones's argument is without merit.
Jones also contends counsel failed to investigate his background and present mitigating character witnesses. Jones vaguely asserts that teachers, counselors, and employers could have testified on his behalf. Jones failed to allege any specific facts in his background that counsel could have investigated; likewise, he failed to identify specific witnesses and the nature of the mitigating testimony they could have provided. Jones's failure to support his arguments with specific facts warrants summary dismissal of these issues. RCr 11.42(2).
Jones next alleges counsel was ineffective for allowing him to plead guilty to the handgun charges without reserving his right to appeal pursuant to a conditional guilty plea.
Where ineffective assistance of counsel is alleged in the context of a guilty plea proceeding, the movant must show, "(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." Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986) (citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985)).
The plea colloquy took place while the jury was deliberating during Jones's trial. The court explained to Jones he would only be able to appeal his convictions relating to the jury trial and that he could not appeal the handgun-possession convictions arising out of the guilty plea. Jones acknowledged that he wanted to plead guilty and that he was waiving his right to appeal. The court also asked Jones if he was completely satisfied with the services of his attorney, and he responded affirmatively. After careful review, we are not persuaded Jones's counsel rendered ineffective assistance at the guilty plea proceeding.
Finally, Jones contends the totality of counsel's deficiencies resulted in cumulative error. We disagree. This Court has previously stated, "In order for individual allegations of ineffective assistance of counsel to have a cumulative effect, the individual allegations must have merit." Johnson v. Commonwealth, 180 S.W.3d 494, 503 (Ky. App. 2005). Because Jones's individual allegations of deficient performance are meritless, there is no cumulative error.
For the reasons stated herein, we affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Donte L. Jones, pro se
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky