Opinion
NO. 2012-CA-000533-MR
02-14-2014
DALE E. MONEYPENNY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dale E. Moneypenny, Pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 06-CR-001025
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: We must determine whether the Jefferson Circuit Court erred by denying Appellant Dale Moneypenny's motion to vacate his criminal convictions pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without conducting an evidentiary hearing. We find no error, we affirm.
I. History
On September 5, 2008, Moneypenny pleaded guilty to two counts of murder, two counts of first-degree arson, first-degree burglary, first-degree robbery, tampering with physical evidence, and to being a first-degree persistent felony offender. As identified in the Commonwealth's plea offer, the charges stemmed from the following course of conduct:
On or about March 24, 2006, Dale Moneypenny and Jennifer Smith went to the home of Charles Poynter. Moneypenny killed Poynter by stabbing him in and about the face and with a lighter provided by Smith, set fire to the apartment (which also served to conceal evidence). This fire also spread to an adjacent building. Smith and Moneypenny then went to the home of Blaine Thacker and once there Moneypenny killed Thacker by stabbing him in the throat. Both Smith and Moneypenny then took items of property from Thacker's home.(R. at 201).
Prior to accepting his plea, the circuit court conducted a plea colloquy pursuant to Boykin v. Alabama and determined that Moneypenny's plea was knowingly, intelligently, and voluntarily made with advice of counsel and with a full understanding of the consequences of entering a guilty plea. For Moneypenny's guilty plea, the Commonwealth agreed not to pursue the death penalty, and to recommend a sentence of life imprisonment without the possibility of parole. By order entered September 8, 2008, the circuit court adjudged Moneypenny guilty, and sentenced him consistently with the Commonwealth's recommendation.
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Roughly three years later, Moneypenny moved, pro se, to vacate his convictions under RCr 11.42 alleging ineffective assistance of counsel. The lion's share of Moneypenny's ineffective-assistance claims stemmed from his belief that he was ineligible for the death penalty on account of his alleged mental retardation. In that regard, Moneypenny asserted his trial counsel were ineffective when they failed to: (i) investigate Moneypenny's alleged mental retardation; (ii) obtain and present expert testimony to support his mental-retardation claim; (iii) move the circuit court for a finding that Moneypenny was ineligible for the death penalty due to his mental retardation; and, (iv) prior to entering a guilty plea, advise Moneypenny he was ineligible for the death penalty. Moneypenny also asserted his trial counsel erroneously advised him to plead guilty to the maximum penalty and failed to reasonably investigate the charges against him.
Moneypenny's claims of ineffective assistance of counsel are contained in his original RCr 11.42 motion, filed on June 15, 2011, and his supplemental RCr 11.42 motion, filed on January 13, 2012.
Moneypenny requested that an evidentiary hearing be held to resolve his claims and that he be appointed counsel. The circuit court issued an order, entered on February 28, 2012, denying Moneypenny's RCr 11.42 motion. From this order, Moneypenny appealed.
II. Standard of Review
Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). Once a defendant enters a guilty plea, a claim of ineffective assistance of counsel will only survive if the defendant can prove:
(1) [t]hat counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; andCommonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009) (citation omitted). In conducting our review, we must strive "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." Strickland v. Washington, 466 U.S. 688, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
(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.
III. Discussion
On appeal, Moneypenny argues the circuit court erred when it: (1) denied his claim that trial counsel failed to investigate and conduct an independent assessment of his mental functioning; and (2) denied his RCr 11.42 motion without conducting an evidentiary hearing. Regarding the latter argument, Moneypenny asserts his ineffective-assistance claims are not refuted by the record and can only be resolved upon an evidentiary hearing.
As referenced previously, the majority of Moneypenny's ineffective-assistance allegations spring from his belief that he was not subject to the death penalty because he suffers from a serious intellectual disability. Accordingly, we must resolve this quandary before addressing Moneypenny's specific allegations of ineffective assistance of counsel.
In Kentucky, an offender with a serious intellectual disability is not subject to execution. Kentucky Revised Statutes (KRS) 532.140. An offender has a serious intellectual disability if he or she has "significant subaverage intellectual functioning [that exists] concurrently with substantial deficits in adaptive behavior and manifested during the developmental period[.]" KRS 532.130. "'Significantly subaverage general intellectual functioning' is defined as an intelligence quotient (I.Q.) of seventy (70) or below." Id.
Here, at his trial counsel's behest, the circuit court ordered that the Kentucky Correctional Psychiatric Center evaluate Moneypenny's competency to stand trial and criminal responsibility. The evaluation occurred over a period of approximately two months. A competency hearing was held following the evaluation at which Dr. Russell Williams, a licensed clinical psychologist, testified he had evaluated Moneypenny and found his IQ to be 78 with an error rate of +/- 5. Dr. Williams opined Moneypenny is not mentally retarded.
Notwithstanding Dr. Williams' findings, Moneypenny claims he was not eligible for the death penalty by virtue of the "Flynn effect," which posits "that as time passes and IQ test norms grow older, the mean IQ score tested by the same norm will increase by approximately three points per decade." Bowling v. Commonwealth, 163 S.W.3d 361, 374 (Ky. 2005) (citation omitted). Moneypenny believes, because of the five-point margin of error and possible three-point "Flynn effect," his IQ could have reached, and possibly fallen below, the IQ of 70 threshold, thereby rendering him ineligible for the death penalty.
Our Supreme Court has disapproved of the "Flynn effect." Id. In Bowling, the Court held that the Kentucky legislature, by enacting a statute imposing "a bright-line" IQ cutoff of 70, with no allowance for adjustment by the courts, chose not to credit the "Flynn effect" or the standard error of measurement. Id. at 375-76. The Court refused to "rewrite this unambiguous statute." Id.
Moneypenny has an IQ of 78. No adjustment can be made to account for the "Flynn effect" or the assigned five-percent error of measurement. Consequently, Moneypenny does not have significant subaverage intellectual functioning and, in turn, cannot be classified as an offender with a serious intellectual disability. He was not exempted from the death penalty by virtue of KRS 532.140.
Now that we have resolved this threshold issue, we will address Moneypenny's particular claims of ineffective assistance.
A. Serious Intellectual Disability
Moneypenny first argues that the circuit court committed reversible error when it denied his claim that trial counsel failed to take prudent and reasonably necessary steps to establish he was suffering from a serious intellectual disability and, therefore, was ineligible for the death penalty. Those steps included: (1) investigating Moneypenny's background, which he claims would establish that he is a person with a significant subaverage intellectual functioning; and (2) consulting and retaining an independent mental health expert witness.
Moneypenny believes his trial counsel, to provide professionally competent assistance, should have conducted a thorough childhood and background investigation. Moneypenny claims such an investigation would have revealed he is suffering from a serious intellectual disability. Moneypenny has not identified, with any measure of specificity, what such an investigation would uncover or how such information would establish Moneypenny had a significant subaverage intellectual functioning. A conclusory allegation of ineffectiveness, i.e., an allegation lacking a supporting factual basis, regardless of whether the record, in fact, refutes that allegation, may be summarily dismissed. See Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011).
Moneypenny also faults his trial counsel for not consulting and obtaining an independent mental health expert witness. The record reveals Moneypenny's trial counsel did seek, and receive, funds to employ a neutral mental health expert, did retain such an expert, and even obtained an order permitting the mental health expert to engage in "face-to-face" personal visits with Moneypenny. Moneypenny's trial counsel rendered reasonably effective assistance, and the circuit court committed no error when it rejected this claim.
B. Evidentiary Hearing
Before this Court, Moneypenny does not argue the substance of his four remaining ineffective-assistance claims. Instead, he contends the trial court erred by failing to conduct an evidentiary hearing on these claims. He asserts he presented arguments "that raised issues that directly relate to trial counsel's thoughts, ideas, and motivations that could not be determined by a simple examination of the record." (Appellant's Brief at 5). Trial counsel's motives, Moneypenny argues, cannot be determined without an account by trial counsel at an evidentiary hearing. We disagree.
An evidentiary hearing is not a vested right to which every RCr 11.42 movant is entitled. See Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993) ("Even in a capital case, an RCr 11.42 movant is not automatically entitled to an evidentiary hearing."). An evidentiary hearing is only needed "if the answer raises a material issue of fact that cannot be determined on the face of the record." Without question:
An evidentiary hearing is not necessary to consider issues already refuted by the record in the trial court. Conclusory allegations which are not supported with specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of discovery.Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003) (citation omitted) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Of course, before an evidentiary hearing is warranted the movant must also establish that the "alleged error is such that the movant is entitled to relief under the rule." Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (citation omitted).
Some of Moneypenny's four arguments for an evidentiary hearing are dependent upon his claim of serious intellectual disability. We have already rejected that claim and we will not revisit its substance for this analysis. After thorough consideration of his four arguments, we conclude they are adequately refuted by the record.
First, Moneypenny argues his trial counsel were deficient when they failed to move the circuit court for a finding that Moneypenny was not death-eligible. This claim is premised on Moneypenny's belief that KRS 532.140 exempted him from the death penalty; we have thoroughly addressed and rejected that notion. Moneypenny has identified no deficient performance by his trial counsel which would afford him RCr 11.42 relief.
Second, Moneypenny claims his guilty plea was entered unknowingly, unintelligently, and involuntarily due to his trial counsel's ineffective assistance when counsel advised him to plead guilty to the maximum penalty, i.e., life imprisonment. Because KRS 532.140 provided no basis upon which to eliminate the death penalty as a potential punishment, the maximum penalty was not life imprisonment without the possibility of parole; it was death. Accordingly, we cannot say trial counsel rendered ineffective representation when they advised Moneypenny to accept the Commonwealth's plea offer, effectively taking the death penalty off the table.
Third, Moneypenny claims his trial counsel failed to advise him of the facts and law of the case. Moneypenny asserts his trial counsel wrongly advised him that he was eligible for the death penalty. But for this erroneous advice, Moneypenny claims he would not have entered a guilty plea, but would have proceeded to trial. This argument is nothing more than a rehashing of his prior arguments. Moneypenny now (erroneously) believes he was not eligible for the death penalty and, consequently, believes his trial counsel failed him at the time he pleaded guilty by misinforming him that he was. We have exhaustingly addressed - and rejected - this claim. No further discussion is warranted.
Fourth and finally, Moneypenny asserts his trial counsel failed to conduct a reasonable pretrial investigation into the charges against him. Had they done so, Moneypenny asserts, they would have realized: (i) he was improperly charged with two counts of arson; (ii) being charged with robbery and burglary for the same incident violates double jeopardy; and (iii) he could not be charged with burglary and robbery of the same house. This claim is easily refuted by the record.
The record indicates Moneypenny was charged with two counts of arson because he set fire to two separate structures: Poynter's apartment and an adjacent building. Likewise, first-degree robbery and first-degree burglary are separate crimes with separate elements. KRS 515.020; KRS 511.020. Robbery is an offense against a person, Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999), while burglary is an offense against property. Jordan v. Commonwealth, 703 S.W.2d 870, 873 (Ky. 1985). Nothing prohibits a defendant from being charged with both crimes. Furthermore, "[c]onvictions of both robbery and burglary do not violate the constitutional proscription against double jeopardy since each offense requires proof of an element that the other does not." Caudill v. Commonwealth, 120 S.W.3d 635, 677 (Ky. 2003). In sum, the bases upon which Moneypenny claims his trial counsel failed to conduct a reasonable pretrial investigation are not supported by the law or the record. There was no need for an evidentiary hearing on this issue.
IV. Conclusion
The February 28, 2012 order of the Jefferson Circuit Court denying Moneypenny's motion for RCr 11.42 relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Dale E. Moneypenny, Pro se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky