Opinion
NO. 2015-CA-000757-MR
01-20-2017
RICKIE MOREHEAD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rickie Morehead, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
INDICTMENT NO. 12-CR-00224 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS, JONES, JUDGES. JONES, JUDGE: Rickie Morehead appeals from the Muhlenberg Circuit Court's January 21, 2015, order denying his motion for relief under RCr 11.42. After reviewing the record, we AFFIRM the circuit court.
Kentucky Rules of Criminal Procedure.
I. BACKGROUND
On the evening of October 24, 2012, Detective Troy Gibson of the Pennyrile Narcotics Task Force received a phone call that Alex Bosler wished to meet with him to convey information concerning drug activity. Gibson was previously acquainted with Bosler, having arrested him about three months prior on methamphetamine charges. Gibson and a local constable drove to a funeral home in Central City, Kentucky, to meet up with Bosler. Upon arriving at the funeral home, Gibson learned that Bosler was scheduled to begin serving a jail sentence that evening on an unrelated charge, so Gibson offered to give him a ride to the jail. En route to the jail, Gibson and Bosler had a recorded conversation.
Noticing the smell of alcohol on Bosler's breath, Gibson asked Bosler if he had been drinking. Bosler told Gibson that he had two beers. As Gibson observed that Bosler was not slurring his speech and was walking with a normal gait, he believed that Bosler was not intoxicated. Bosler then told Gibson that he had purchased 0.5 grams of methamphetamine from Morehead the day before while at Morehead's house. He further told Gibson that he knew that Morehead had been manufacturing methamphetamine at the house, and that he believed there were still approximately 0.25 ounces of methamphetamine there. Once Bosler arrived at the jail, he was given a breathalyzer test. His blood alcohol concentration (BAC) was 0.286.
Gibson had known Morehead for several years. He was familiar with Morehead's home, having made a drug arrest of another individual outside of the house a few months prior. Gibson was also aware that Morehead and been purchasing Sudafed, and had been blocked from making Sudafed purchases on five occasions. Further, Gibson had information that Bosler and his wife had been residing at Morehead's home.
The following day, Gibson prepared an affidavit for a search warrant. The affidavit gave the address, coordinates, and description of the Morehead residence; recited the information Gibson had received from Bosler; and indicated Gibson's prior relationships with Bosler and Morehead. The affidavit did not indicate that any investigation of Morehead had been conducted subsequent to the conversation with Bosler, nor did it state Gibson's knowledge of Morehead's attempted Sudafed purchases. A warrant was issued, and Gibson executed it that evening. During the search, Gibson found methamphetamine, various drug paraphernalia, ingredients and instructions for cooking methamphetamine, and an active methamphetamine lab in Morehead's home. Morehead admitted to using methamphetamine, and was arrested.
On December 3, 2012, the Muhlenberg Circuit Court conducted a suppression hearing. Morehead argued that the affidavit did not contain sufficient information to create probable cause to search his home. Specifically, Morehead argued that Bosler, being intoxicated, was not a reliable informant. Further, Morehead argued that Gibson should have driven Bosler by his home so that Bosler could identify it, and that Gibson should have taken steps following the conversation with Bosler, such as searching Morehead's discarded trash, to confirm the information.
After listening to the recording of the conversation between Bosler and Gibson, the Muhlenberg Circuit Court entered an Opinion and Order denying Morehead's motion to suppress. The order noted that, under Kentucky law, there is no requirement of a finding of credibility if an informant is named. The court additionally found that Gibson had established probable cause for a warrant in the affidavit. Morehead entered a conditional guilty plea, reserving his right to appeal. He then filed a direct appeal, as a matter of right, to our Supreme Court.
Morehead made two arguments on direct appeal: (1) the affidavit supporting the search warrant contained intentional misrepresentations regarding Morehead's address, and (2) the trial court should have looked beyond the "four corners" of the affidavit as there were material omissions regarding Bosler's credibility as an informant. The Court affirmed the judgment.
The Court first determined that because Morehead had neither raised the misrepresentation issue before the trial nor requested palpable error review, the Court was barred from considering the issue on appeal. Morehead v. Commonwealth, No. 2013-SC-000403-MR, 2014 WL 1118221, at *3 (Ky. Mar. 20, 2014). The Court then considered and rejected Morehead's second argument on the merits, finding there was "no reason to believe that Detective Gibson made any material omissions in his affidavit with the intent to mislead." Morehead at *4.
After the conclusion of his direct appeal, Morehead filed a pro se RCr 11.42 motion to vacate judgment, accompanied by two related motions for appointment of counsel and an evidentiary hearing. The trial court denied the motions in a written order entered January 21, 2015. This appeal followed.
II. ANALYSIS
On appeal, Morehead argues ineffective assistance of counsel at both the trial court and appellate level. He further contends that the trial court's denial of his motion for an evidentiary hearing on his RCr 11.42 motion was an abuse of discretion.
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Claims for ineffective assistance of counsel are evaluated under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). A successful appellant must first show "that counsel's performance was deficient." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. "This is done by showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment or that counsel's representation fell below an objective standard of reasonableness." Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064) (internal citations and quotation marks omitted). When applying this test, our "scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
Appellant must next show that the deficient performance was prejudicial to his defense. An appellant who has pleaded guilty must establish "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." Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009) (quoting Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001)). An argument for ineffective assistance of appellate counsel "requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded." Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010) (citing Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
We evaluate each of Morehead's specific claims of ineffective assistance of counsel within this framework.
Morehead first argues that his trial counsel was ineffective in that he failed to present evidence of Bosler's intoxication to the court. This argument fails because a review of the record plainly indicates that Morehead's counsel did raise this issue as part of the suppression hearing. When Gibson testified that he did not perceive Bosler as being intoxicated, Morehead's counsel questioned Gibson on his years of experience dealing with intoxicated people and asked why Gibson had not conducted a field sobriety test. The mere fact that trial counsel's efforts proved unsuccessful does not indicate ineffective assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Morehead next asserts that trial counsel was ineffective by failing to present evidence that Gibson provided intentionally false or misleading information in the affidavit. Specifically, Morehead contends that the affidavit incorrectly states that Bosler was Gibson's source for Morehead's address, when, in fact, Gibson relied on his prior knowledge.
The circuit court found this assertion to be "simply false," in its denial of the RCr 11.42 motion. We agree. The relevant portion of Gibson's affidavit states:
Affiant states that he did interview Alexis Bolser on October 24, 2012, at approximately 6:30 p.m. in Central City, Kentucky. Alexis Bolser stated to the Affiant that he purchased 1/2 gram of methamphetamine from Rickie L. Morehead for $50 at approximate 6:00 p.m. on October 23, 2012, at the hereinabove described premises which is the premises to be searched.Morehead has not argued that Gibson's statement that Bosler told him that he purchased methamphetamine at Morehead's home is a misrepresentation. At no point in the affidavit does Gibson indicate that Bosler revealed the location of Morehead's home to him. In fact, it does the opposite - the affidavit later recites that Gibson has arrested another individual outside of Morehead's home, indicating that Gibson already knew its location. Morehead has not cited any other misleading or false information in the affidavit. As such, we cannot find that trial counsel was deficient in failing to raise the issue.
The record and briefs are inconsistent as to whether the informant in the affidavit is Mr. "Bolser" or "Bosler." Because our Supreme Court referred to this individual as "Bosler" in its opinion on Morehead's direct appeal, we refer to him by that name in the main body of this opinion.
Morehead contends that his appellate counsel's presentation of issues on appeal that were not raised at the trial court level, compounded with his failure to request palpable error review for unpreserved issues, constitutes ineffective assistance of counsel. To succeed on this claim, Morehead must overcome the "strong presumption that appellate counsel's choice of issues to present to the appellate court was a reasonable exercise of appellate strategy." Hollon, 334 S.W.3d at 436. "[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance be overcome." Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
Our Supreme Court declined to address Morehead's argument that Gibson made intentional misrepresentations in the affidavit for search warrant because counsel failed to request palpable error review. To be successful on his claim, however, Morehead must also show more than a mere omission; he must also demonstrate that this deficiency caused him actual prejudice. Hollon, 334 S.W.3d at 437. This is where his argument falls short. As noted above, nothing alleged by Morehead indicates that Gibson's affidavit contained intentional misrepresentations. Therefore, even if counsel had requested palpable error review on direct appeal, it would have been of no benefit to Morehead. The outcome of his appeal would have been the same. Thus, he cannot rely on this allegation.
Finally, Morehead argues that the circuit court abused its discretion in denying his RCr 11.42 motion without conducting an evidentiary hearing. An RCr 11.42 movant is not automatically entitled to an evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d 742, 744 (Ky. 1993). A hearing is only required "if the answer raises a material issues of fact that cannot be determined on the face of the record." RCr 11.42(5).
None of Morehead's allegations give rise to a constitutional violation. Further, there is no issue of fact that cannot be conclusively resolved by the record. As such, the circuit court was not in error in denying Morehead an evidentiary hearing on his motion.
III. CONCLUSION
For the foregoing reasons, we affirm the Muhlenberg Circuit Court's order entered January 21, 2015.
ALL CONCUR. BRIEF FOR APPELLANT: Rickie Morehead, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky