Opinion
NO. 2011-CA-001483-MR
03-15-2013
DANNY K. MONTGOMERY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Danny K. Montgomery, Pro Se La Grange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NOS. 05-CR-00048, 06-CR-00035, AND 07-CR-00023
OPINION
AFFIRMING
BEFORE: KELLER, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: Danny K. Montgomery, proceeding pro se, has appealed from the order of the Trimble Circuit Court denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 post-conviction relief without an evidentiary hearing. Montgomery was convicted on one count of first-degree sexual abuse and for being a first-degree persistent felony offender for which he received a sentence of twenty years' imprisonment. We agree with the Commonwealth that Montgomery has not established that he is entitled to any post-conviction relief. Hence, we affirm the order on appeal.
For our statement of the facts, we shall rely upon the Supreme Court of Kentucky's recitation as set forth in the opinion ruling on Montgomery's direct appeal from the conviction and sentence:
In October 2005, a Trimble County Grand Jury indicted Montgomery for allegedly having raped K.B. ten times between December 2, 2004 and August 18, 2005, when K.B. was thirteen and fourteen years old. The ten counts of the indictment were identical. In response to Montgomery's motion for a bill of particulars, the Commonwealth, in October 2006, detailed five rapes: one on December 1, 2004, a day after Montgomery, K.B., and K.B.'s mother had arranged to move to Trimble County from Johnson County, Indiana; a second in January 2005; a third in March 2005; a fourth later that spring, and a fifth during the morning of May 20, 2005, following an incident the night before when Montgomery allegedly awakened K.B. by reaching inside her pants and fondling her vagina. All of these incidents were alleged to have occurred at Montgomery's Trimble County residence. The other five counts of rape were dismissed, but the May 2005 fondling allegation gave rise in November 2006 to a separate indictment for sexual abuse. The rape and abuse charges were ultimately joined and tried together with a first-degree persistent felony offender charge in July 2007.Montgomery v. Commonwealth, 320 S.W.3d 28, 32-33 (Ky. 2010).
Trial testimony established that K.B. was born in California in May 1991. She has two older half siblings, a brother and a sister. In 2000, the family moved from California to Indiana, where K.B.'s mother soon met, commenced living with, and eventually married Montgomery. Almost as soon as Montgomery moved in, the elder sister accused him of molesting her. The accusations were not pursued, but the sister was allowed
to return to California to live with her father. At some point, too, the brother left the home to live with relatives. In 2002, when K.B. was eleven, she told a friend and then a school counselor that Montgomery had "raped" her. The counselor informed K.B.'s mother, who immediately took K.B. to the emergency room to be examined. The exam revealed that K.B.'s hymen was still intact and that otherwise her genitals were completely normal. Soon thereafter K.B. told the investigating social worker that she had made up the "rape" allegation and that in fact nothing had happened.
Allegations against Montgomery arose again in November 2004, when K.B. was thirteen years old and still living in Indiana with her mother and Montgomery. The mother of one of K.B.'s classmates reported to authorities a rumor that Montgomery had molested some of K.B.'s friends and had subjected K.B. to intercourse. A police officer and a social worker promptly interviewed the girls at school. Three of K.B.'s friends reported that they had, at separate times, spent the night at K.B.'s home and that during the night they had been awakened by Montgomery reaching into their pants and touching their vaginal areas. When initially questioned, K.B., too, made allegations against Montgomery.
It was in the wake of the investigation of these allegations that Montgomery, K.B., and K.B.'s mother moved from Indiana to Trimble County. K.B. testified that she and Montgomery spent December 1, 2004 at their new trailer painting and preparing to move in. That night, she claimed, Montgomery forcibly subjected her to intercourse. She admitted, however, that the next day, when she was again interviewed by the Indiana police officer investigating the allegations against Montgomery there, she not only did not report the alleged rape but, recanting her allegations of a few days before, denied that Montgomery had abused her in Indiana.
K.B. also testified concerning the four other alleged rapes and the May 19 incident of abuse. In addition, her testimony and that of others described how, on May 20, 2005, the day of the last alleged rape, K.B.'s brother
moved from his grandparents' home in Indiana to his mother's and Montgomery's Trimble County trailer. About a week after his arrival, he allegedly found a letter the then fourteen year old K.B. had written to herself but addressed to her mother, in which she described Montgomery's alleged assaults and sought her mother's protection. The brother showed the letter to his mother, and when she confronted Montgomery a melee erupted that soon involved the police and resulted in an emergency protective order barring Montgomery from the home. A few days later, however, K.B. again told one of the investigating officers that she had fabricated her allegations. K.B. was on probation for a burglary at the time, and the investigating officers testified that she claimed to have made up the allegations against Montgomery in an attempt to divert attention from herself.
Following the May altercation, Montgomery and K.B.'s mother separated and by the time of Montgomery's trial they had divorced. Once they had separated, apparently, that is where matters stood until the following August. In August 2005, however, another of K.B.'s Indiana friends, who is also Montgomery's great niece, accused K.B. of molesting her. The officer who investigated that charge was the same officer who had investigated the Indiana charges against Montgomery by the three friends who had slept overnight at K.B.'s residence. In the course of his interview with K.B., the officer again asked about those earlier accusations. This time K.B. reported that Montgomery had in fact abused her in Indiana, and she renewed her allegations of rape in Kentucky as well. Those allegations were again referred to Kentucky authorities and provided the basis for Montgomery's October 2005 indictment.
Montgomery moved to vacate his sentence pursuant to RCr 11.42 in December 2010. In his motion, Montgomery raised issues concerning the introduction of Kentucky Rules of Evidence (KRE) 404(b) evidence related to the victim's sister, M.J.; ineffective assistance of counsel; and ineffective assistance of appellate counsel. He requested an evidentiary hearing to resolve these issues. In response, the Commonwealth argued that throughout the proceedings defense counsel opposed the introduction of the evidence that M.J. had been raped by Montgomery, as well as other evidence, and pointed out that the jury did not convict him of rape. The Commonwealth asserted that an evidentiary hearing was not required because all of the issues Montgomery raised could be refuted by the record. However, the Commonwealth conceded that Montgomery was correct regarding the amendment of his judgment to reflect the proper conditional discharge period, but stated this request should have been raised via a Kentucky Rules of Civil Procedure (CR) 60.02 motion. By order entered June 21, 2011, the circuit court denied Montgomery's motion for RCr 11.42 relief, but sua sponte granted CR 60.02 relief to amend the judgment to reflect the correct conditional discharge period. This appeal now follows.
First, we shall set out the applicable standard of review in RCr 11.42 post-conviction actions. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874, 879 (Ky. 1969). If an evidentiary hearing is held, we must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983). If an evidentiary hearing is not held, as here, our review is limited to "whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986).
The Supreme Court of Kentucky recently revisited the law addressing RCr 11.42 proceedings in Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)), noting that "[s]uch a motion is limited to the issues that were not and could not be raised on direct appeal. An issue raised and rejected on direct appeal may not be relitigated in these proceedings by simply claiming that it amounts to ineffective assistance of counsel." Haight, 41 S.W.3d at 441. The Court went on to state:
In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).Id. at 441-42.
A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.
In his brief, Montgomery continues to raise the same issues he raised below in his RCr 11.42 motion. The Commonwealth has responded, and we shall address the issues as the Commonwealth framed them in its brief.
The first issue we shall consider is whether Montgomery is entitled to relief based upon an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct 1194, 10 L.Ed.2d 215 (1963). Montgomery contends that the Commonwealth violated the rules of discovery by failing to produce evidentiary materials, including taped and handwritten witness statements and two letters, which he had requested. He claims that his attorney was ineffective because he knew of the violation.
We agree with the Commonwealth that the failure to produce these materials did not constitute a Brady violation. In Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002), the Supreme Court of Kentucky explained:
Brady concerns those cases in which the government possesses information that the defense does not and the government's failure to disclose the information deprives the defendant of a fair trial. Therefore, reversal is required only where "there is a 'reasonable probability' that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985).Furthermore, the Supreme Court pointed out that "Brady only applies to 'the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.'" Id., citing United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, 349 (1976) (emphasis in original). Here, Montgomery knew of the existence of these materials prior to trial and actively sought to obtain them. Accordingly, there is no Brady violation, and Montgomery's trial counsel was not ineffective on this ground.
The next issue we shall address relates to Montgomery's argument that his trial counsel was ineffective in failing to investigate and obtain e-mails sent to Montgomery by three alleged victims from Indiana. He asserts that these e-mails would have revealed that the victims were planning and plotting their story weeks before they made their allegations and would have contradicted their testimony at trial regarding spending the night at Montgomery's residence. The Commonwealth, however, points out that Montgomery failed to include these alleged e-mails with his RCr 11.42 motion or otherwise set forth a factual basis in relation to this argument, other than his self-serving statements in his motion and brief. We agree with the Commonwealth that Montgomery has failed to establish a basis for post-conviction relief related to e-mails on his computer.
Next, we shall consider whether Montgomery's trial counsel was ineffective in addressing the evidence admitted pursuant to KRE 404(b). Montgomery contends that his trial counsel failed to obtain evidence favorable to his defense, failed to interview or subpoena witnesses, and failed to present impeachment evidence to counter this evidence. His arguments in this section relate to contradictory testimony arising from a report that the Indiana victims stated that Montgomery was growing marijuana in his garage, giving it to the girls, and that they were all having sex, all of which he states was later determined to be false. We agree with the Commonwealth that Montgomery has failed to establish his trial counsel was ineffective on this issue.
The record establishes that Montgomery's trial counsel attempted to obtain the dispatch report he refers to. Furthermore, Montgomery did not include the dispatch report in his RCr 11.42 motion to establish what that report actually stated. Second, Montgomery does not provide any support for his claim that Victoria Stewart and her daughter would have testified the way he states they would have, and the record establishes that his attorney sought an order to compel them to testify at trial. Furthermore, Montgomery only alleges that they would contradict testimony concerning whether the daughter ever spent the night at his house, not whether the abuse happened. Finally, trial counsel's objection to playing the entirety of the videotaped recording of the Indiana victims' interviews was clearly trial strategy, as was his decision regarding whether to call Ms. Stewart and her daughter to testify.
We shall next consider Montgomery's claim that his trial counsel bolstered the Commonwealth's case during his examination of witnesses for the Commonwealth and for his defense. Again, we disagree with this argument. Regarding A.W.'s testimony, trial counsel believed she would have testified to inconsistencies in the Indiana victims' testimony and made the strategic decision to call her to testify. Regarding the cross-examination of the Commonwealth's witnesses, Montgomery does not explain how his trial counsel bolstered their testimony, but only makes conclusory statements that he did. This is not enough to set forth a factual background to support his claim for relief.
Next, we shall consider whether Montgomery's trial counsel was ineffective in regard to the introduction of M.J.'s testimony. He lists several reasons why his counsel was ineffective, including his failure to object to the admission of the evidence, to file a motion in limine, to investigate the probable cause affidavit or interview the investigators, to obtain taped statements from the initial report M.J. made as well as of interview with others, or to offer a handwritten letter from M.J. Again, we agree with the Commonwealth that Montgomery failed to establish that he is entitled to relief. Trial counsel could not object to the introduction of M.J.'s testimony for purposes of the KRE 404(b) analysis because her testimony was strikingly similar to that of the victim. The trial court noted that "the two children stood in the same relationship to the Defendant, that is that of step-daughter, and both children are prepared to testify that they were raped by the Defendant under circumstances similar to each other, that is they were both in their residence, home alone with the Defendant." In addition, the Commonwealth points out that even if Montgomery's trial counsel was ineffective, he could not establish prejudice because the jury did not convict Montgomery of rape.
Next, Montgomery argues that his trial counsel failed to introduce evidence to impeach K.W., who he claimed had a pattern of making sexual allegations and then recanting. However, Montgomery fails to point to any documentary or testimonial evidence to establish his allegations regarding past recantations.
For his next argument, Montgomery contends that his appellate counsel was ineffective for failing to raise an unpreserved issue regarding the admissibility of KRE 404(b) evidence regarding M.J. In Hollon v. Commonwealth, 334 S.W.3d 431, 436-37 (Ky. 2010), as modified on denial of reh'g (Apr. 21, 2011), the Supreme Court of Kentucky recognized a defendant's right to effective assistance of appellate counsel:
To succeed on such a claim, the defendant must establish that counsel's performance was deficient, overcoming a strong presumption that appellate counsel's choice of issues to present to the appellate court was a reasonable exercise of appellate strategy. As the Supreme Court noted in Smith, "'[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance be overcome.'" 528 U.S. at 288, 120 S.Ct. 746 (quoting Gray v. Greer, 800Hollon, 334 S.W.3d at 436-37.
F.2d 644, 646 (7th Cir. 1986)). We further emphasize "ignored issues" to underscore that IAAC claims will not be premised on inartful arguments or missed case citations; rather counsel must have omitted completely an issue that should have been presented on direct appeal. For further clarity, we additionally emphasize that IAAC claims are limited to counsel's performance on direct appeal; there is no counterpart for counsel's performance on RCr 11.42 motions or other requests for post-conviction relief. Finally, the defendant must also establish that he or she was prejudiced by the deficient performance, which, as noted, requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded. Smith, supra.
In the present case, Montgomery contends that his appellate counsel was ineffective for failing to raise an unpreserved issue on appeal. He claims in his brief that the Supreme Court, in its opinion, questioned why this issue was not raised on direct appeal and stated that he was most likely convicted based upon M.J.'s and the Indiana victims' testimony. However, as the Commonwealth points out, neither statement is in the Supreme Court's opinion. The Supreme Court merely noted in passing that M.J.'s "testimony has not been challenged on appeal." Montgomery, 320 S.W.3d at 36. We agree with the Commonwealth that appellate counsel was not ineffective in not raising this issue - the error was not preserved, any argument on this issue would not have been successful as M.J.'s testimony was strikingly similar to the victim's testimony, and Montgomery was not convicted of rape, only one count of sexual abuse. Accordingly, Montgomery has failed to establish that he is entitled to relief on this issue.
Montgomery's next argument is that he is entitled to relief based upon cumulative error. Because we have not held that Montgomery is entitled to relief based upon any of the issues he raised, these allegations cannot together create a meritorious argument when considered cumulatively. See Sanborn v. Commonwealth, 975 S.W.2d 905, 914 (Ky. 1998), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) ("We find no error and consequently, we find no cumulative error.").
For his last argument, Montgomery contends that he was entitled to an evidentiary hearing. In Mills v. Commonwealth, 170 S.W.3d 310 (Ky. 2005), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), the Supreme Court addressed what a defendant must establish in order to be afforded an evidentiary hearing:
We have established a two-part test for determining whether an evidentiary hearing is necessary to evaluate an RCr 11.42 motion. First, the movant must show that he "is entitled to relief under the rule." This can be done by showing that "'there has been a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack."' Second, theMills, 170 S.W.3d at 325-326.
movant must show that "'the motion raises an issue of fact that cannot be determined on the face of the record."'
In this case, Montgomery made many conclusory allegations that he did not support by providing a factual basis. In Sanborn, 975 S.W.2d at 911, the Supreme Court held that such allegations are not enough to entitle a defendant to an evidentiary hearing: "There are no specific facts as required by RCr 11.42(2) to support such an allegation. Such a conclusionary [sic] allegation is not sufficient to require an evidentiary hearing." Furthermore, all of the allegations Montgomery raises may be refuted from the face of the record, meaning that he is not entitled to an evidentiary hearing.
For the foregoing reasons, the order of the Trimble Circuit Court denying Montgomery's motion for post-conviction RCr 11.42 relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Danny K. Montgomery, Pro Se
La Grange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky