Opinion
NO. 2015-CA-001145-MR
07-21-2017
MARION KILBURN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Marion Kilburn, Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE THOMAS M. SMITH, JUDGE
ACTION NO. 11-CR-00037 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Marion Kilburn appeals the Floyd Circuit Court's order denying his RCr 11.42 motion to vacate his sentence. After a careful review of the record, we affirm because Kilburn's claim that he received the ineffective assistance of counsel concerning his head injury and blackout theory of defense lacks merit, and his remaining ineffective assistance of counsel claims have been waived on appeal.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
While driving at a high rate of speed on the wrong side of the road and with a blood-alcohol content more than three times the legal limit, Kilburn slammed into an oncoming vehicle, causing injury to its driver and severe and permanent injury to its passenger -- a six-year-old child. As a result, Kilburn was charged with various offenses. Following a jury trial, he was convicted of: being a first-degree persistent felony offender (PFO-1st), pursuant to KRS 532.080; first-degree assault, pursuant to KRS 508.010; fourth-degree assault, pursuant to KRS 508.030; operating a motor vehicle with an alcohol concentration at or above 0.08, pursuant to KRS 189A.010; operating a motor vehicle while license was revoked or suspended for driving under the influence of alcohol or other substances which impairs driving ability, second offense, pursuant to KRS 189A.090(2)(b); and owning or operating a motor vehicle without insurance, pursuant to KRS 304.39-080. Kilburn was sentenced to a total of twenty-four years of imprisonment. Kilburn appealed, and the Kentucky Supreme Court affirmed in part, but reversed Kilburn's conviction for operating a motor vehicle without insurance. See Kilburn v. Commonwealth, 2012-SC-000494-MR, 2014 WL 1514622, *1, 7 (Ky. Apr. 17, 2014) (unpublished).
Kentucky Revised Statute.
He moved to vacate his sentence pursuant to RCr 11.42. In his pro se motion, Kilburn alleged various ineffective assistance of counsel claims. He also moved for an evidentiary hearing concerning his claims. Counsel was subsequently appointed to represent Kilburn in the proceedings, and counsel supplemented Kilburn's pro se motion. An evidentiary hearing was held, and the circuit court then denied Kilburn's RCr 11.42 motion. He now appeals, contending that the issue of the head injury he received the day before the events involved in this case was not adequately addressed by the attorneys or the Commonwealth.
We note that this is the only claim that Kilburn raised in his RCr 11.42 motion that he also raises on appeal. Because he has not brought his remaining RCr 11.42 claims on appeal, those claims are waived, and we will not consider them. See Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
II. ANALYSIS
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). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.
Kilburn contends that he received the ineffective assistance of counsel because counsel failed to present a head injury or blackout defense. In order to prevail on a claim of ineffective assistance of counsel, a defendant must convince a reviewing court both that (1) his trial counsel's performance was deficient, and (2) that this deficiency resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
Kilburn alleges that the issue of the head injury he received the day before the events upon which the charges in this case were based "has repeatedly been side-stepped by the attorneys and the Commonwealth. This head injury was the main cause of the accident, and not just the alcohol. Professional assistance on head injuries was warranted and Counsel should have plied the Courts for expert advice on this issue."
As the Commonwealth correctly notes in its response brief, Kilburn testified at the evidentiary hearing that he fell and hit his head the day before the accident, and that he did not remember anything until he woke up in the hospital nine to ten days later. Kilburn attested that he wanted to use this as his defense, but his trial counsel told him that it would not help him. Trial counsel then testified at the evidentiary hearing that Kilburn had informed her of his alleged blackout. Counsel attested that she hired a psychologist as an expert witness to examine Kilburn, but the psychologist's expert opinion ultimately did not support Kilburn's defense or the blackout theory.
Upon reviewing the pertinent portions of the video recording of the evidentiary hearing, we note that the Commonwealth correctly summarized the testimony concerning this issue.
Consequently, contrary to Kilburn's allegations, counsel did investigate the use of the head injury and blackout theory as a possible defense, and even obtained an expert opinion concerning it. However, the expert's opinion did not support this defense theory. Furthermore, Kilburn does not show how the result of his trial would have been different if any other experts had been consulted concerning his defense theory. Therefore, this ineffective assistance of counsel claim lacks merit because this issue of the head injury and the blackout theory of defense has been properly addressed and Kilburn cannot show that the result of his trial would have been otherwise different.
Accordingly, the order of the Floyd Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Marion Kilburn, Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky