Opinion
NO. 2014-CA-001376-MR
05-06-2016
RYAN KRISTOFF APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ryan Kristoff Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 11-CR-00015 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; DIXON AND KRAMER, JUDGES. KRAMER, JUDGE: Ryan Kristoff appeals the Christian Circuit Court's order denying his RCr 11.42 motion to vacate his sentence. After a careful review of the record, we affirm because Kristoff's ineffective assistance of counsel claims lack merit.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
On direct appeal, the Kentucky Supreme Court stated the facts as follows:
On January 13, 2010, [Kristoff] was driving a vehicle on Canton Road in Christian County, Kentucky. His vehicle collided with another vehicle driven by Norma Cook. Norma's husband, Jack Cook, was a passenger in her vehicle. Norma died as a result of the collision and Jack survived with minor injuries.
Earlier that day, [Kristoff] had returned to the United States on leave following military service in Iraq, where he was a driver for the Army. He went to his girlfriend's father's house to pick up his vehicle, which he had stored there while in Iraq. While he was there, he consumed alcohol.
By the time [Kristoff] left the house in the vehicle, it had gotten dark outside and there were no streetlights. As he went through a sharp curve in the road, he crossed at least two feet over the center double-yellow no-passing line and struck the vehicle driven by Norma nearly head on.
Analysis of the crash site and the crash data recorder recovered from [Kristoff's] vehicle revealed that he was driving 89 miles per hour two seconds before the collision and 86 miles per hour one-tenth of a second before the collision. Data showed that [Kristoff] did not apply his brakes before the collision.
Norma's vehicle was traveling 43 miles per hour when the collision occurred. The posted maximum speed limit on the road was 55 miles per hour, with an advisory speed limit of 40 miles per hour at the curve.
[Kristoff] was administered two blood alcohol tests, one at the scene and another at the hospital where he received treatment for his injuries. The first test showed a blood alcohol content (BAC) of 0.1 and the second showed a
BAC of 0.126, both above the legal limit of 0.08. A Commonwealth's expert testified that [Kristoff's] BAC at the time of the collision was between 0.09 and 0.12.Kristoff v. Commonwealth, No. 2011-SC-000680-MR, 2013 WL 2297125, *1 (Ky. May 23, 2013) (unpublished).
Kristoff was indicted on the following charges: murder; first-degree wanton endangerment; operating a motor vehicle while under the influence of alcohol or controlled substance, first offense, with aggravator; failure of owner to maintain required insurance, first offense; failure to wear seat belts; and speeding. Following a jury trial, Kristoff was convicted on all counts. He was sentenced to: twenty years of imprisonment for the murder conviction; two and a half years of imprisonment for the first-degree wanton endangerment conviction; ninety days of imprisonment for the operating a motor vehicle under the influence of drugs/alcohol, with aggravator, first offense conviction; ninety days of imprisonment for the failure of owner to maintain required insurance conviction; a $100.00 fine for the failure to wear a seatbelt conviction; and a $150.00 fine for the speeding, 26 miles per hour or greater conviction. The sentences were ordered to run concurrently for a total sentence of twenty years of imprisonment.
Kristoff appealed, and the Kentucky Supreme Court affirmed the circuit court's judgment. See Kristoff, No. 2011-SC-000680-MR, 2013 WL 2297125, at *5 (Ky. May 23, 2013) (unpublished). The Kentucky Supreme Court also denied Kristoff's petition for rehearing.
Kristoff then filed his RCr 11.42 motion to vacate his sentence. The circuit court denied the motion without holding an evidentiary hearing.
Kristoff now appeals, contending that the circuit court erred in denying his motion because he received the ineffective assistance of trial counsel when counsel: (a) failed to move to have Kristoff undergo a psychological evaluation and present the defense of "combat driving" in mitigation of the wanton murder charge; (b) failed to file a pretrial challenge to the indictment for wanton murder; and (c) failed to object to improper comments made by the Commonwealth during closing arguments.
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). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
III. ANALYSIS
A. PSYCHOLOGICAL EVALUATION AND DEFENSE OF "COMBAT DRIVING"
Kristoff contends that he received the ineffective assistance of counsel when trial counsel failed to move to have Kristoff undergo a psychological evaluation and present the defense of "combat driving" in mitigation of the wanton murder charge. Specifically, he alleges that
[t]o understand the social utility of [his] conduct behind the wheel on the night of the fatal crash, it was, and remains necessary to delve into his military training and experiences in Iraq, as well as the documented post-deployment driving difficulties of similarly situated service-members and veterans. The only way to achieve this would have been to have [Kristoff] undergo a psychological evaluation, and/or hire an expert witness to explain combat driving to the jury. [Kristoff's attorney] was ineffective for failing to do so, and said ineffectiveness affected the outcome of the trial, where had [counsel] had [Kristoff] evaluated and presented combat driving as a defense[,] there is a reasonable probability that the jury would have convicted [him] of [second-degree manslaughter] or [r]eckless [h]omicide.
To prove he received the ineffective assistance of counsel, thus warranting a reversal of his conviction, Kristoff must show that: (1) counsel's performance was deficient, in that it fell outside "the wide range of reasonable professional assistance"; and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Further,
a court's review of counsel's performance must be highly deferential. 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. Hence, the defendant must overcome the presumption that counsel provided a reasonable . . . strategy.Brown v. Commonwealth, 253 S.W.3d 490, 498-99 (Ky. 2008) (internal quotation marks and citations omitted).
On direct appeal, Kristoff also claimed that there was social utility in the way that he was driving at the time in question and that his actions therefore did not satisfy the elements for wanton murder. The Kentucky Supreme Court stated as follows regarding Kristoff's "social utility" argument:
[Kristoff's] claim that there was social utility in driving in the middle of the road is disingenuous at best. He claims that there was social utility to his driving in the middle of the road while in the Army in order to avoid roadside explosives and, thus, the social utility continued when he returned to the United States, at least for a short time. He does not claim any exigency or emergency particular to his situation or the road on which he was driving. Whatever social utility existed for driving in the middle of the road while [Kristoff] was deployed in a combat zone disappeared when he returned to Christian County, Kentucky. The danger of roadside bombs approaches zero in the United States, but the danger of an oncoming car is extremely high. Absent emergency circumstances, this Court can see no social utility in crossing the double-yellow center line of a domestic road.Kristoff, No. 2011-SC-000680-MR, 2013 WL 2297125, at *3 (Ky. May 23, 2013) (unpublished).
Kristoff claims that counsel should have had him undergo a psychological evaluation and should have presented evidence regarding combat driving to explain the "social utility" of the way he was driving at the time in question. However, the Kentucky Supreme Court held that there was no social utility in how Kristoff was driving in Christian County at the time of the events in question. Therefore, Kristoff cannot show that counsel performed deficiently in failing to present evidence about combat driving or in failing to have him undergo a psychological evaluation, and he also cannot show that counsel's failure to do such things prejudiced his defense. Consequently, this claim lacks merit.
B. PRETRIAL CHALLENGE TO INDICTMENT
Kristoff next asserts that he received the ineffective assistance of counsel when counsel failed to file a pretrial challenge to the indictment for wanton murder. He contends that counsel should have challenged the indictment due to prosecutorial vindictiveness because "[o]ver the span of one year and through two different prosecutors, [Kristoff] was only charged with [second-degree manslaughter]. It was not until the last prosecutor was assigned to the case that the charge was arbitrarily upgraded to [w]anton [m]urder - without any additional evidence or facts."
However, the Kentucky Supreme Court has concluded "we are not disposed to extend the presumption of 'prosecutorial vindictiveness' . . . to the pretrial setting." Commonwealth v. Leap, 179 S.W.3d 809, 814 (Ky. 2005) (citations omitted). Because the Commonwealth's conduct that Kristoff complains of occurred in a pretrial setting, there is no presumption of prosecutorial vindictiveness. See Hunt v. Commonwealth, 304 S.W.3d 15, 32 (Ky. 2009). Therefore, Kristoff cannot show that counsel performed deficiently in failing to challenge the indictment on this ground, and this ineffective assistance of counsel claim accordingly lacks merit.
C. COMMONWEALTH'S COMMENTS DURING CLOSING ARGUMENT
Finally, Kristoff alleges that he received the ineffective assistance of counsel when trial counsel failed to object to improper comments made by the Commonwealth during closing arguments. On direct appeal, Kristoff alleged that the Commonwealth made improper comments during closing arguments. The Kentucky Supreme Court held as follows:
In making comments during closing arguments, the Commonwealth simply responded to questions and comments posed by [Kristoff's] counsel about the change in charges against [Kristoff]. The Commonwealth did not mention the superseding indictment at any point prior to [Kristoff's] questioning of Deputy Moe, and its statement was brief. The statements made by the Commonwealth were not improper, as they were in response to issues raised by [Kristoff's] counsel. . . . [T]his Court holds that the statements were not error . . . .Kristoff, No. 2011-SC-000680-MR, 2013 WL 2297125, at *4 (Ky. May 23, 2013) (unpublished).
Because the Supreme Court determined that the statements did not amount to error, Kristoff cannot prove that counsel acted deficiently in failing to object to them, or that he was prejudiced by counsel's failure to so object. Consequently, this ineffective assistance of counsel claim lacks merit.
Accordingly, the order of the Christian Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Ryan Kristoff
Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky