Opinion
NO. 2013-CA-000610-MR
02-07-2014
DAVID JOSEPH POPPITI APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: D. Todd Varellas Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BELL CIRCUIT COURT
HONORABLE GREGORY A. LAY, SPECIAL JUDGE
INDICTMENT NO. 08-CR-00098
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR AND THOMPSON, JUDGES. STUMBO, JUDGE: David Joseph Poppiti appeals from an Order of the Bell Circuit Court denying his RCr 11.42 motion to vacate, set aside or correct a sentence. Poppiti contends that his trial counsel was ineffective in advising him to plead guilty, and by not explaining the full effect of such a plea. Poppiti also alleges that correct procedures were not followed governing the transfer of a juvenile defendant to circuit court for trial as an adult, that there should have been a change of venue, that he was coerced into accepting a plea offer, and that the sentence was improper due to a failure to follow the statutory guidelines. He seeks an Order vacating the sentence and remanding the matter for a new trial.
On April 3, 2008, the Bell County grand jury indicted Poppiti on one count each of Murder, Assault on a Service Animal First Degree, Fleeing and Evading First Degree, Speeding and No Operators License. The indictment followed Poppiti's arrest for engaging in a high speed pursuit in Bell County, Kentucky. In that pursuit, the vehicle operated by Poppiti struck a law enforcement vehicle resulting in the death of Bell County Deputy Sheriff Sean Pursifull and his service dog.
An investigation into the incident revealed that Poppiti was operating a vehicle that matched the description involved in the theft of gasoline. The vehicle was observed operating at high rate of speed, and a pursuit followed. During the pursuit, Poppiti's vehicle struck the vehicle operated by Deputy Pursifull and his dog. Pursifull's vehicle was parked off the roadway with its emergency lights on. The investigation found no signs that Poppiti braked or otherwise tried to avoid Pursifull's vehicle. When deputies approached Poppiti's vehicle after the collision, Poppiti told them he had a gun and they should shoot him. It was later determined that Poppiti had a replica handgun in the vehicle. At the time of the incident, Poppiti was 17 years old.
Poppiti was arraigned and charged in the Juvenile division of Bell District Court. An Agreed Order was rendered which resulted in one hearing to establish probable cause, and a second hearing to consider Poppiti's transfer to Bell Circuit Court. Those hearing were conducted on March 12, 2008, after which the court found probable cause as well as sufficient factors under KRS 640.010(2)(a) and (b) to justify transfer of the matter to Bell Circuit Court.
Poppiti was arraigned in Bell Circuit Court on April 7, 2008. Thereafter, the trial judge recused himself because he had attended Deputy Pursifull's funeral, and a new judge was appointed. Poppiti's subsequent motions to Remand to Juvenile Court and for Change of Venue were denied. Various other motions were made and ruled upon throughout the remainder of 2008. In April, 2009, the Commonwealth tendered notice that it would be seeking an aggravated penalty of life without the possibility of parole for 25 years, and Poppiti's second Motion for Change of Venue was denied.
A jury trial commenced on May 4, 2009. On the third day of trial, Poppiti entered a plea of guilty to the charges of Murder and Fleeing or Evading Police in the First Degree. The court later accepted the Commonwealth's recommended penalty, and sentenced Poppiti to a total term of 25 years in prison. The following month, Poppiti sent a letter to the trial court stating, "I know I took a binding plea. However I would like to know if I could appeal getting my case moved from juvenile [sic] court to Circuit court." The letter was appended to the trial record.
In early 2012, Poppiti, through counsel, made a Motion to File Belated Appeal or, in the Alternative, Motion to Belatedly Perfect Appeal. This motion was denied by the Kentucky Supreme Court on March 18, 2012. Poppiti then moved for RCr 11.42 relief and sought an evidentiary hearing on the motion. Therein, he maintained that his trial counsel improperly failed to advise him of the appellate ramifications of entering a guilty plea. The motion was denied, and this appeal followed.
Poppiti now argues that the Bell Circuit Court committed reversible error in denying his motion for RCr 11.42 relief. He first contends that his trial counsel was ineffective in advising him to plead guilty and failing to explain the full effect that a guilty plea has on his right to appeal. Poppiti argues that he had many viable appellate issues he wished to prosecute, and would not have entered a guilty plea had he known that such a plea waived his right to appeal. Poppiti contends that he would have prosecuted several issues including the inadequate proceedings governing his transfer from juvenile court to circuit court to be tried as an adult, the Grand Jury's improper indictment, the improper failure to change venue, improper amendment of the indictment, and various other issues. He also argues that the court erred in failing to conduct an evidentiary hearing on the motion. In sum, Poppiti maintains that his plea was not knowing, voluntary and intelligent, and that the circuit court erred in failing to so find.
To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
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 the defendant 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.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. (Internal citation omitted).Id. at 691-692. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "The 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." Id. at 694. Additionally, "a hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-744 (Ky. 1993).
In the matter at bar, Poppiti participated in the guilty plea colloquy when he appeared in open court to tender his plea. As part of that verbal exchange, which is memorialized in the record, Poppiti responded appropriately to a litany of questions regarding both the plea and his counsel's representation. Among other things, Poppiti stated that he had not been forced or threatened to enter a guilty plea, that he was satisfied with counsel's performance and did not require additional time, and that he read the guilty plea and understood its consequences. His counsel then stated that counsel explained to Poppiti all of his constitutional rights, that it was counsel's opinion that Poppiti understood those rights and the nature of the proceeding, and that Poppiti's guilty plea was made knowingly, voluntarily and intelligently. Of relevance herein, Poppiti also responded with "yes sir" when the court stated as follows: "You also have the right to appeal to a higher court any conviction you might receive in this court and you give up that right by entering a guilty plea here today."
The record refutes Poppiti's contention that his plea was not made knowingly, voluntarily and intelligently. Arguendo, even if counsel never apprised Poppiti that his guilty plea waived all appellate rights - which we do not find to be the case - it is uncontroverted that Poppiti was aware of this fact at the time the plea was entered. We cannot conclude that counsel's representation was deficient on this issue. The burden rests with Poppiti to demonstrate that but for counsel's alleged ineffective assistance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. Poppiti has not met that burden, and accordingly find no error.
Poppiti goes on to argue that 1) there were inadequate proceedings governing his transfer to circuit court; 2) he was improperly denied a change of venue; 3) the indictment was improperly amended to intentional murder; the Judgment and Sentence were improper; and, 4) the theory of cumulative error operates to require reversal. Having determined that Poppiti's guilty plea waived all substantive appeals, and as the Kentucky Supreme Court previously denied Poppiti's motion for a belated appeal, we hold these arguments as moot as they are not derived from Poppiti's claim of ineffective assistance of counsel. We do note, however, that having examined Poppiti's transfer to circuit court for jurisdictional infirmities, we have found none. These additional arguments asserted by Poppiti are outside the scope of his RCr 11.42 claim, and accordingly we find no error therein.
Finally, Poppiti maintains that he was improperly denied a hearing on his RCr 11.42 motion. As his claim of entitlement to relief via RCr 11.42 was refuted by the record, no hearing was required. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001). Poppiti's RCr 11.42 was justiciable by referencing the record, and as such we find no error.
For the foregoing reason, we affirm the Order of the Bell Circuit Court overruling Poppiti's RCr 11.42 motion for relief from Judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: D. Todd Varellas
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky