Opinion
NO. 2015-CA-001955-MR
01-13-2017
FRENCH MYERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kieran J. Comer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE, BETH LEWIS MAZE, JUDGE
ACTION NO. 11-CR-00126 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL AND VANMETER, JUDGES. DIXON JUDGE: Appellant, French Myers, appeals from the Montgomery County Circuit Court's order denying his motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Myers contends that the court erred in denying his claim of ineffective assistance of counsel due to counsel's waiver of his right to a speedy trial pursuant to Kentucky Revised Statutes (KRS) 500.110. After careful review, we affirm the trial court's order denying Myers' motion.
Judge Laurence B. VanMeter concurred in this opinion prior to being elected to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
On June 22, 2011, a Montgomery County grand jury returned indictments against Myers on the charges of theft by deception over $10,000 and being a persistent felony offender in the first degree. At that time, Myers was serving a sentence in the Kentucky State Penitentiary for a prior offense. In March of 2012, a detainer was lodged against Myers to answer to the new charges. On June 8, 2012, Myers filed a pro se request for a speedy trial pursuant to KRS 500.110. KRS 500.110 provides for one who is imprisoned to receive a trial within one-hundred and eighty days after a request is made provided that the trial court does not for good cause grant a necessary or reasonable continuance. Although the motion was not noticed to the Commonwealth's Attorney, as is required by the statute, the Commonwealth's Attorney indicated in a response filed on July 17, 2012, that he had received a copy of Myers' motion on July 9, 2012. He further indicated that he did not oppose Myers' request for a speedy trial.
Myers' case remained dormant for five months until December 12, 2012, when the Montgomery Circuit Court entered an order requiring Myers to appear at an arraignment on December 14, 2012. At the arraignment, after Myers was appointed counsel, the court informed the parties that the case had been delayed due to an issue with the proof of service of the warrant. Myers then informed the court that he had filed a pro se motion for a speedy trial. The court acknowledged Myers' motion and proceeded to set the case for a pre-trial conference on February 22, 2013, and trial on April 2, 2013. Appointed counsel accepted both dates.
On January 10, 2013, Myers filed a pro se motion to dismiss the charges for failure to receive a speedy trial under KRS 500.110, stating that more than 180 days had passed since he filed his request for a final disposition pursuant to the statute. Counsel supplemented the motion on January 14, 2013. The motions were heard and denied at a February 8, 2013 pretrial conference. Thereafter, Myers entered into a conditional guilty plea in which he reserved the right to appeal the trial court's motion to dismiss under KRS 500.110. In exchange for his plea of guilty, Myers received a five-year prison sentence. Final judgment was entered on July 2, 2013.
Myers appealed, and on February 13, 2013, we affirmed his conviction and sentence. 2015 WL 603715, 2013-CA-001213-MR. In so affirming, we found that Myers had implicitly waived his right to a speedy trial by agreeing through counsel to a trial date beyond the 180-day statutory limitations period.
Thereafter, Myers, through counsel, filed an RCr 11.42 motion for post-conviction relief alleging that his trial counsel was ineffective for accepting a trial date outside the 180-day limitation required by KRS 500.110. On October 27, 2015, an evidentiary hearing was held on Myers' motion. During that hearing, trial counsel testified that she believed that she provided ineffective assistance because she did not take Myers' file to the back and review it for an hour or so before she took actions concerning Myers' case. The trial court entered an order denying Myers' motion on November 20, 2015. The court found that trial counsel's performance was not deficient because it would not have been feasible for trial counsel to spend approximately one hour with Myers in the holding cell given the large number of defendants on the docket. It further found that Myers was not prejudiced because trial counsel negotiated a favorable plea deal. This appeal followed.
To successfully claim ineffective assistance of counsel, a movant must establish that counsel's performance was deficient and that prejudice resulted from that deficient performance. 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). The movant must first identify specific acts or omissions made by counsel that were outside the wide range of prevailing professional norms. Strickland, 446 U.S. at 688-89; Wilson v. Commonwealth, 836 S.W.2d 872, 878 (Ky. 1992). He must then demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, S.Ct. at 2068; Bowling v. Commonwealth, 981 S.W.2d 545, 551 (Ky. 1998). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. A reviewing court deciding an ineffective assistance of counsel claim need not address whether counsel's performance was deficient if it can say that the defendant was not prejudiced by the deficiency. Strickland, 466 U.S. at 697, 104 S.Ct at 2069. On appeal from the trial court's denial of an ineffective assistance of appellate counsel claim, we review the circuit court's ruling on the components of the claim de novo. Commonwealth v. Pollini, 437 S.W.3d 144, 149 (Ky. 2014).
On appeal, Myers argues that he was denied his constitutional right to effective assistance of counsel when trial counsel waived his KRS 500.110 right to a speedy trial. Applying Strickland, to prevail on his claim, Myers must show that a reasonably competent attorney would have reviewed his file, and afterward would not have accepted a trial date beyond the 180-day limitations period set forth in KRS 500.110. And he must show a reasonable probability that the trial court would have dismissed his charges on statutory speedy trial grounds had his attorney not accepted the trial date. Based on the record and the evidence presented at the evidentiary hearing, we are of the opinion that Myers has failed to establish the prejudice prong of Strickland.
The Commonwealth received notice of Myers demand for a speedy trial on June 9, 2012, thus satisfying the notice requirements of KRS 500.110. As such, the Commonwealth had 180 days from June 9, in which to bring Myers to trial, making the deadline January 7, 2013. Myers' arraignment, at which trial counsel agreed to a court date outside of the 180-day limit, was held on December 14, 2012, three weeks before the expiration of the limitations period.
We do not believe that it is necessary to decide whether counsel's failure to thoroughly review Myers' file before waiving his speedy trial right constituted deficient performance, because even if it did, Myers cannot show that he was prejudiced by counsel's actions. Had trial counsel met with Myers for an hour and become familiar with the temporal aspects of his motion, she could have objected on statutory speedy trial grounds to the trial date proposed by the circuit court. This would presumably have forced the court to hold a trial before January 7, 2013 (see below). However, in light of the fact that the limitations period was set to expire in three weeks, counsel had just been appointed, and counsel did not yet have discovery, the more reasonable course of action, after reviewing Myers' file, would have been for counsel to waive Myers' speedy trial right and accept the trial court's tendered date outside of the limitations period so that she could reasonably prepare for trial. See Gonzalez v. United States, 553 U.S. 242, 249, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) (holding that an attorney can waive his client's right to a speedy trial because ("[s]cheduling matters are plainly among those [rights] for which agreement by counsel generally controls.") (citations omitted); accord Lawson v. Office of Att'y Gen., 415 S.W.3d 59 (Ky. 2013).
Myers contends that he was prejudiced because had trial counsel not waived his speedy trial rights his case would have been dismissed based on the violation of KRS 500.110. However, at the evidentiary hearing Myers failed to offer any proof that the trial court could not have held the trial before the limitations period expired if trial counsel had objected. Strickland requires identifiable prejudice, not just mere speculation that the outcome of the proceedings would have been different had counsel performed differently. See Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004) ("speculation on whether the outcome...could have been any different [is] an insufficient basis for a successful claim of prejudice.") It is far too speculative in this case to say that the trial court would not have merely reset the trial date within the speedy trial period had trial counsel objected to a trial date outside the period. Moreover, in the absence of evidence to the contrary, we may presume that the trial court would have adhered to the law. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 370, 113 S.Ct. 838, 843, 122 L.Ed.2d 180 (1993) (in showing prejudice, a defendant cannot simply assume that his or her case would have been decided by a "lawless decisionmaker"). Because Myers cannot satisfy the prejudice prong of the Strickland test, his claim of ineffective assistance of counsel necessarily fails.
For the foregoing reasons, the order of the Montgomery Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kieran J. Comer
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky