Opinion
NO. 2017-CA-000053-MR
06-08-2018
DAMON MALONE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Damon Malone, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NOS. 09-CR-000732 & 09-CR-003715 OPINION
AFFIRMING
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BEFORE: JOHNSON, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Damon Malone brings this pro se appeal from an order of the Jefferson Circuit Court entered November 23, 2016, denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.
In 2009, Malone was indicted by a Jefferson County Grand Jury for his role in a string of robberies, one of which resulted in a death. The Commonwealth filed a notice that it would seek the death penalty, after which Malone's counsel filed a motion to exclude death as a punishment due to Malone's alleged intellectual disability. Without the trial court having ruled on his motion, Malone entered an Alford plea pursuant to a plea agreement with the Commonwealth which called for Malone to receive thirty-five years' imprisonment. In September 2012, the trial court sentenced Malone in accordance with the plea agreement.
A guilty plea made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) allows a defendant to consummate a plea bargain while maintaining his claims of innocence.
In April 2015, Malone filed a pro se motion to vacate under RCr 11.42, contending his counsel was ineffective for failing to "forcefully" argue that Malone was ineligible for the death penalty and that his constitutional rights were violated when he "was required to choose between pleading guilty to the charges or opting for a trial while a death penalty notice was pending." The Commonwealth did not file a written response to the motion. In November 2016 the trial court denied the motion. This appeal followed.
Contrary to Damon Malone's argument, the Commonwealth of Kentucky is not required to respond to a Kentucky Rules of Criminal Procedure 11.42 motion, Polsgrove v. Commonwealth, 439 S.W.2d 776 (Ky. 1969), so the lack of a response did not entitle Malone to relief. --------
It is somewhat difficult to discern with precision the exact parameters of Malone's arguments on appeal. Based on our review, the overarching thrust of Malone's motion below was that he was not eligible for the death penalty due to his intellectual disability, thereby making his guilty plea invalid because it was caused by fear of receiving the death penalty. Thus, his counsel was ineffective by failing to "forcibly" assert this right.
In Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), the United States Supreme Court held that execution of an intellectually disabled person violates the Eighth Amendment to the United States Constitution. Towards that end, Kentucky Revised Statutes (KRS) 532.140 prevents the execution of an offender with a "serious intellectual disability[,]" which KRS 532.130(2) defines as being a person with an IQ of seventy or less. Malone argues that he has scored 70 or slightly above on IQ tests. And, in Hall v. Florida, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014), the Court held that Florida's fixed IQ 70-point threshold violated the Eighth Amendment. In White v. Commonwealth, 500 S.W.3d 208, 214 (Ky. 2016), the Kentucky Supreme Court held that Hall is retroactive, and Kentucky cannot inflexibly use an IQ score of 70 to determine intellectual disability, but instead must consider "an IQ test's margin of error."
However, Malone is not entitled to relief even if we accept, for purposes of argument only, that his IQ is close enough to 70 for him to be potentially deemed intellectually disabled, because he was not sentenced to death. Further, as noted by the trial court, a valid guilty plea waives all defenses except that the indictment fails to charge an offense. B.H. v. Com., 494 S.W.3d 467 (Ky. 2016). Additionally, in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 1474, 25 L. Ed. 2d 747 (1970), the United States Supreme Court held that there is "no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that . . . the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions." Similarly, in Gussler v. Commonwealth, 236 S.W.3d 22 (Ky. App. 2007), we held that a juvenile who pleaded guilty to avoid the death penalty was not entitled to relief when the Supreme Court later ruled that juveniles cannot be sentenced to death.
In other words, Malone's plea is not invalid just because it was made in fear of receiving the death penalty. Likewise, we reject Malone's baseless argument that the holdings regarding the death penalty for intellectually disabled defendants in Hall and White somehow retroactively deprived the trial court of jurisdiction to sentence him to a term of years.
Finally, we also reject Malone's remaining ineffective assistance of counsel argument as concerns Malone having to accept his plea offer while the death penalty notice was pending. In the guilty plea context, the Supreme Court of Kentucky has explained:
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. Com., 58 S.W.3d 482, 486-87 (Ky. 2001)(citation omitted).
Malone's attorney filed a motion to exclude the death penalty, which included Malone's IQ test results. Thus, counsel properly raised the issue but could not force the trial court to issue a ruling in Malone's favor. Malone has not explained with sufficient detail and supporting documentation how he was purportedly "abandoned" by counsel in this regard. To the contrary, counsel obtained a favorable plea agreement for Malone which resulted in his receiving a thirty-five-year sentence. Simply "[a]dvising a defendant to plead guilty does not, in and of itself, constitute ineffective assistance of counsel." Russell v. Com., 992 S.W.2d 871, 875 (Ky. App. 1999)(citation omitted). Malone has not shown either deficient performance or prejudice as concerns his legal representation below.
In conclusion, Malone's argument that he was ineligible to receive a punishment to which he was never sentenced is totally without merit, and further he has failed to establish how his counsel was ineffective in the proceedings below.
For the foregoing reasons, the order of the Jefferson Circuit Court denying Malone's motion for RCr 11.42 relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Damon Malone, Pro Se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky