Opinion
NO. 2014-CA-001196-MR
01-15-2016
JOSHUA PARSONS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joshua Parsons, Pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE THOMAS L. JENSEN, JUDGE
ACTION NO. 09-CR-00051 OPINION
AFFIRMING BEFORE: CLAYTON, THOMPSON, AND VANMETER, JUDGES. CLAYTON, JUDGE: This is an appeal from a decision of the Bell Circuit Court's denial of the Appellant's motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. Because we agree with the circuit court that the Appellant's arguments can be refuted by the record, we affirm the decision of the trial court.
BACKGROUND SUMMARY
Appellant, Joshua Parsons, pled guilty to murder, kidnapping, tampering with physical evidence, and robbery in the first degree. Due to the plea bargain arranged with the Commonwealth, Parsons avoided the death penalty and received a sentence of life imprisonment without the possibility of parole. On July 3, 2013, Parsons filed a motion to vacate his plea based upon RCr 11.42. Parsons requested an evidentiary hearing, but the trial court denied his request, stating that the record refuted his allegations. Parsons now brings an appeal of the trial court's decision.
STANDARD OF REVIEW
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 motion is limited to the issues that were not and could not be raised on direct appeal. Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky. 1998) (overruled on other grounds).
In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 674 (1984). Courts must also examine counsel's conduct in light of professional norms based on a standard of reasonableness. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Pursuant to the holding in Strickland, a "defendant must show that 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 a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Since this involves a guilty plea, the test for analyzing effectiveness of counsel is whether counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance and that the deficient performance so seriously affected the outcome of the plea process that, "but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012).
DISCUSSION
Parsons first asserts that his counsel was ineffective for failing to demand completion of a competency evaluation. The trial court held that "the failure of the Movant's trial counsel to provide a complete evaluation report to the Court is not attributable to counsel. The Movant concedes in his motion that he refused to cooperate with the expert attempting to perform the review." Order Overruling Movant's Motion to Vacate Judgment and Sentence Pursuant to RCr 11.42 (Order) at p. 6. The trial court authorized funds for the mental health evaluation and Parsons refused to cooperate with the process. The trial court also inquired of Parsons as well as his counsel whether he was competent and both answered that he was. Parsons has submitted no proof to the contrary and the record refutes his claim. Thus, the trial court did not err in denying an evidentiary hearing on this issue. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001), citing Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993).
Parsons' second argument is that his counsel failed to reasonably investigate and prepare a mental health defense. The trial court addressed the issue and held that Parsons had not set forth with any specificity how his counsel was ineffective. In other words, Parsons had not shown that there was something his counsel could have done, but did not, which resulted in his guilty plea. Before this court, Parsons argues that his counsel did not make his prior mental health records available to the mental health professional, who had been retained to determine whether he was competent. This argument differs from his argument before the trial court and, regardless, is not meritorious. As set forth above, Parsons refused to participate in the evaluation process. He has not shown how his counsel's efforts would have changed the outcome of his situation when he was unwilling to participate. Thus, the trial court did not err in denying his motion on this issue.
Next, Parsons asserts that his counsel was ineffective for failing to obtain a written copy of a plea agreement in another case. Parsons contends that he was visited by the Commonwealth's Attorney while he was in jail and that he was offered the dismissal of newer charges if he would plead guilty and accept a life sentence without parole. Parsons contends that his counsel was not present at this meeting.
At his plea colloquy, Parsons stated before the trial court that no other offers had been made by the Commonwealth. The trial court held that Parsons' own argument allowed for the fact that he would probably have received a sentence of life without parole had he gone to trial. Thus, under the Strickland standard above, we agree with the trial court that Parsons was not prejudiced by any action or inaction of his counsel on this issue.
Parsons' final argument is that he was entitled to appointment of counsel to assist him in his RCr 11.42 motion. A movant is not entitled to appointment of counsel when the issues set forth in his motion for post-conviction relief may be resolved on the face of the record without the need for an evidentiary hearing. Moore v. Commonwealth, 199 S.W.3d 132, 140 (Ky. 2006). As set forth above, the trial court's findings were based upon the face of the record and no evidentiary hearing was necessary. Thus, the trial court did not err in failing to appoint Parsons counsel. Based upon the above, we affirm the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Joshua Parsons, Pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky