Opinion
NO. 2019-CA-000600-MR
03-06-2020
SHELBY NIX APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: J. Ryan Chailland Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 16-CR-00061 OPINION
AFFIRMING
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BEFORE: COMBS AND LAMBERT, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Shelby Joe Nix appeals from an order of the Bullitt Circuit Court denying his motion to vacate his 20-year prison sentence pursuant to RCr 11.42. Nix claims he received ineffective assistance of counsel. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Kentucky Rules of Criminal Procedure.
On January 2, 2016, Nix was stopped for a traffic violation by Lebanon Junction police officer Josh Waters. Nix was driving a truck towing a trailer full of scrap metal, and Officer Waters testified he could not see a license plate on the truck. During the course of the traffic stop, Waters observed the plate, but it was not displayed as required by law.
At the time of the stop, Nix was on probation. One of the conditions of his probation was that he was prohibited from scrapping metal. Nix was known to Officer Waters through Phil McHargue, a probation officer. McHargue had previously made Waters aware that Nix was prohibited from scrapping as a condition of his probation. Waters called McHargue, who arrived within a few minutes.
Officer McHargue was not Nix's probation officer, but he worked in the same office.
McHargue spoke briefly with Nix before placing him under arrest for violating his probation. McHargue then searched the truck and found a large sword, several bottles of Seagram's alcohol, and 19 plastic bags of methamphetamine in a pouch located behind the bench seat on the passenger side of the truck.
Nix's trial counsel filed a motion to suppress the fruits of the search. The trial court denied the motion, and a jury trial was held in January 2017. The jury found Nix guilty of first-degree trafficking in a controlled substance (methamphetamine) and possession of alcohol in an open container. He was also found guilty of being a persistent felony offender in the first degree. Due to his status as a persistent felony offender, his sentence was enhanced to 20 years. The Kentucky Supreme Court affirmed his convictions and sentence on direct appeal.
Nix v. Commonwealth, No. 2017-SC-000217-MR, 2018 WL 1417633 (Ky. Mar. 22, 2018).
On July 18, 2018, Nix filed a motion to vacate his convictions and sentence pursuant to RCr 11.42, alleging ineffective assistance of counsel. Following an evidentiary hearing at which Nix, his trial counsel, and Robin Kinsey testified, the court entered an order denying Nix's motion. This appeal by Nix followed.
To show ineffective assistance of counsel, Nix must satisfy both prongs of the test set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Kentucky Supreme Court defined this standard as follows:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome.Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002) (citations omitted).
At an evidentiary hearing, the trial court has the duty to evaluate the veracity and credibility of witnesses in making its determination. On appeal, the "reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
The trial court's findings, based on the facts and witness credibility, shall not be disturbed unless they are clearly erroneous. CR 52.01. The trial court's findings are not clearly erroneous if they are supported by substantial evidence. Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky. App. 2012).
Kentucky Rules of Civil Procedure; RCr 13.04.
FAILURE TO COMMUNICATE PLEA OFFER
Nix's first argument is that he received ineffective assistance of counsel because his trial counsel failed to advise him of a plea offer prior to trial. Nix testified at the hearing he had told his girlfriend, Robin Kinsey, he had asked other inmates at the jail about plea offers they had received and discovered he was the only inmate who had not received an offer. Kinsey told Nix his trial counsel said an offer was made but it was ridiculous, and counsel was not going to relay it to Nix. Nix testified he had not heard about a possible offer until after trial and he did not tell his trial counsel he was not interested in a plea deal. Kinsey could not recall the details of the plea offer. The record also contains an affidavit from Teresa Joiner who stated, "[i]n one of our many conversations with [trial counsel] the topic did come up that the court offered this crazy offer of 15 or more years; [trial counsel] said the deal was so crazy that he wasn't going to tell [appellant] about it." Joiner did not testify at the hearing, however.
Nix's trial counsel testified he could not recall if an offer was discussed, but he was sure no formal offer was made and nothing was put in writing. He also stated his policy was to communicate to his client all offers, "even bad ones."
On this issue the trial court made the following findings:
In the instant case, the Defendant has the burden of proof and the Court finds that he has failed to prove there was a formal offer made by the Commonwealth which was not conveyed to the Defendant. While his girlfriend, Robin Kinsey, speculates and asserts there was an offer, she is unable to recall what it was. This court finds her testimony to be vague in that she cannot state any specifics of any alleged offer. In addition, no evidence is tendered by any representative of the Commonwealth, by testimony or correspondence, to support the claim of an undisclosed offer. The Defendant has the burden of
showing an offer was made and not conveyed and has failed to do so.We agree with the Commonwealth and the trial court that Nix failed to meet his burden to show the plea offer was made to counsel. The trial court was in the best position to judge the veracity and credibility of the witnesses, and we conclude its findings on this issue were not clearly erroneous. Simmons, 191 S.W.3d at 561.
CHANGE OF VENUE
Nix's second argument is that he received ineffective assistance of counsel when trial counsel failed to file a motion for a change of venue. Nix's argument in this regard is somewhat vague. Nix states in his brief he "believes that due to a previous civil lawsuit that he could not receive a fair trial in Bullitt County." He claims he was granted a change of venue in another case "due to a conflict with judicial administration." He argues on appeal that trial counsel should have investigated his reasons for his desire to change venue.
Nix's trial counsel testified he did not believe a change of venue was necessary because he did not believe there was any reason Nix could not get a fair trial in Bullitt County. Further, counsel testified there was no media coverage of the case. The trial court rejected Nix's change of venue argument in denying Nix's motion stating: "The Defendant cannot relate any facts or circumstances which show any bias or prejudice against the Defendant in this court. The court finds that the defendant has failed to prove challenging the venue would have changed the outcome of the case."
A change of venue is authorized in criminal proceedings by KRS 452.210 "if it appears that the defendant or the state cannot have a fair trial in the county where the prosecution is pending." "Prejudice must be shown unless it may be clearly implied in a given case from the totality of the circumstances." Brewster v. Commonwealth, 568 S.W.2d 232, 235 (Ky. 1978).
Kentucky Revised Statutes.
In a motion for RCr 11.42 relief, the movant must set forth with specificity all facts upon which he relies for the claimed relief and all issues relevant to his motion. Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). The court may not "presume that facts omitted from the motion establish the existence of such a violation." Id.
Nix's argument on appeal refers us to page 295 of the trial record where he alleged grounds for change of venue in support of his RCr 11.42 motion as follows:
Movant had previously filed a Change of Venue in a previous litigation because of conflict with Judicial Administration, and in said litigation a Change of Venue was ordered. The Movant and Bullitt Co. Judiciary Officials have been less than cordial and down right harassing in their day-to-day socializations. This is a
documented negative history with the Judge of the Court and the Judiciary Community and a change of venue was dire.
We agree with the trial court and the Commonwealth that Nix failed to present proper support for his RCr 11.42 motion in this regard. There is nothing in the record before us that would indicate Nix would have been entitled to a change of venue had such a motion been made. We see nothing specifically alleging prejudice by this particular judge, by the Commonwealth's attorney who prosecuted him, or by the local community. Further, there was no indication there was any pretrial publicity that could have caused prejudice to the jury. In short, we agree with the trial court's denial of relief on this issue.
FAILURE TO PURSUE ACTUAL INNOCENCE CLAIM
Nix's final argument is he received ineffective assistance of counsel when trial counsel failed to investigate the previous conditions of his probation and thus failed to pursue an actual innocence claim. Trial counsel had represented Nix in a previous case that ended in a five-year probated sentence weeks before his arrest in this case. One of the conditions of his probation was that he was not allowed to scrap metal. He contends scrap was his livelihood and counsel did not object to that obligation of probation.
As that relates to this case, Nix argues "counsel failed to investigate the terms of Mr. Nix's probation and failed to pursue and [sic] actual innocence claim." Further, Nix asserts the methamphetamine in his truck did not belong to him and "trial counsel only focused on the illegitimacy of the traffic stop and did not pursue other avenues of actual innocence." Nix argues his trial counsel's focus on the illegitimacy of the stop was misplaced when he should have known probation officers can legally search probationers, making the stop lawful, and counsel should have focused instead on Nix's actual innocence.
The trial court addressed this issue as follows:
With respect to the actual innocence issue, the Court finds that the trial counsel did in fact present an actual innocence defense during the trial and advised his client of the nature of the defense prior to trial.The trial court also noted trial counsel testified at the hearing "that he presented to the jury that Shelby Nix was not aware the methamphetamine was in the truck and several other people had access to the truck."
Although it is true counsel challenged the legality of the stop, even to the extent of pursuing that issue on appeal, the record indicates counsel raised Nix's actual innocence as a total defense at trial. Nix's defense was that he did not place the methamphetamine in the truck, he had no access to it behind the passenger seat, and numerous people were in the truck and had access to it shortly before the stop. Nix, Robin Kinsey, and Christy Clark all testified in Nix's favor on this subject during the trial.
The evidence supported the trial court's finding that trial counsel raised Nix's claim of innocence at trial. That was his defense, although trial counsel also challenged the legality of the traffic stop. We find no merit in Nix's argument.
CONCLUSION
The order of the Bullitt Circuit Court denying Nix's motion to vacate his convictions and sentence pursuant to RCr 11.42 is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: J. Ryan Chailland
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky