Opinion
NO. 2018-CA-001584-MR
03-13-2020
SHAWN PURSLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shawn Pursley, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 13-CR-002711 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. GOODWINE, JUDGE: Shawn Pursley appeals from an order of the Jefferson Circuit Court denying his motion for relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. After careful review, finding no error, we affirm.
Our Supreme Court succinctly set forth the underlying procedural history in its opinion affirming Pursley's conviction on direct appeal.
As part of an expedited prosecution process referred to locally as a "rocket docket agreement," Appellant agreed to waive his right to indictment by a grand jury and to enter a guilty plea based upon an information filed by the Commonwealth charging him with four counts of second degree burglary. The Commonwealth agreed to recommend a sentence of ten years' imprisonment on each charge, to be served concurrently for a total sentence of ten years. The agreement further provided that Appellant, who was on probation at the time, would upon revocation of his probation be sentenced to a term of five years' imprisonment to be served consecutively to the ten year burglary sentence. In total, the sentencing recommendation agreed upon by the parties was to be fifteen years' imprisonment.
However, before Appellant formally entered his plea of guilty to the original charges, further negotiations took place resulting in a different plea agreement. Under the new agreement, the Commonwealth agreed to amend each count of second degree burglary to third degree burglary and to recommend a sentence of five years on each count. The sentences on three burglary counts were to be served concurrently with each other but consecutively to the remaining count for a total of ten years' imprisonment.
The new plea agreement also contained a "hammer clause" by which the Commonwealth agreed to Appellant being released from jail on his own recognizance until sentencing, with the condition that if he committed another offense before sentencing, the Commonwealth could recommend a total sentence of twenty years. Appellant accepted these conditions and entered his guilty plea accordingly. The trial court accepted the plea.
While released from jail prior to sentencing, Appellant incurred new criminal charges. Prior to sentencing, he moved the trial court to dismiss all of the
third degree burglary charges or in the alternative, to accept his guilty plea under the terms of the original plea agreement. The trial court denied Appellant's motion. The Commonwealth recommended a sentence of twenty years pursuant to the hammer clause, and the trial court imposed that sentence.Pursley v. Commonwealth, 500 S.W.3d 807, 808-09 (Ky. 2016) (footnotes omitted).
Pursley's lone argument on direct appeal was that "he waived indictment only to the original charges of second degree burglary such that, when the initial plea agreement dissolved and the original charges were amended, the trial court lost jurisdiction to adjudicate his guilt and impose a sentence on the amended charges." Id. at 809. Our Supreme court disagreed, holding that Pursley's waiver of indictment "does not expressly preclude amendment to proper lesser included charges, nor do we think it could preclude such an amendment. . . . Whether proceeding by indictment or information, the circuit court does not lose jurisdiction over the case when it permits charges to be amended." Id. at 810.
In March 2018, Pursley filed the RCr 11.42 motion for post-conviction relief at hand, raising three main issues: 1) defense counsel was ineffective for advising Pursley to plead guilty; 2) the original plea agreement was binding and thus the second one was a nullity; and 3) the Commonwealth Attorney's office committed misconduct by seeking to enforce the hammer clause. In June 2018, the trial court denied the motion. This appeal followed.
The Department of Public Advocacy moved to withdraw after concluding Pursley's appeal is not one which a reasonable person with adequate means would bring at his/her own expense. See Kentucky Revised Statute (KRS) 31.110(2)(c). Pursley thus submitted pro se briefs.
As we understand Pursley's somewhat disjointed briefs, his arguments are: 1) his attorney was ineffective for advising him to plead guilty; 2) the trial court erred by enforcing the hammer clause; 3) the Commonwealth Attorney's office committed misconduct by seeking a twenty-year sentence under the hammer clause; and 4) the trial court erred by sentencing him without obtaining an updated presentence investigation report (PSR).
The scope of relief under RCr 11.42 is tightly circumscribed and, consequently, so is our review. RCr 11.42 relief is unavailable for issues addressed on direct appeal, or for issues which could have been raised on direct appeal. See, e.g., Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014). We utilize the abuse of discretion standard when assessing a trial court's denial of an RCr 11.42 motion. Id.
Three of Pursley's four enumerated issues do not present claims for which RCr 11.42 relief may lie because he could have raised them on direct appeal. First, Pursley could have argued on direct appeal that the trial court erred by sentencing him without first obtaining an updated PSR. Second, Pursley also could have raised his prosecutorial misconduct claim on direct appeal. See, e.g., Barnes v. Commonwealth, 91 S.W.3d 564 (Ky. 2002) (reversing on direct appeal due to a form of prosecutorial misconduct). Third, Pursley could have raised on direct appeal his assertion that the trial court erred by enforcing the hammer clause. See, e.g., Knox v. Commonwealth, 361 S.W.3d 891 (Ky. 2012) (reversing on direct appeal when a trial court robotically enforced a hammer clause without giving due consideration to the relevant facts and circumstances). Regardless, though Pursley disagrees, the trial court here did not reflexively enforce the hammer clause. Instead, at sentencing the court discussed how Pursley's sentence was based upon several factors, including the plea agreement and his extensive criminal history.
Pursley does not cite authority mandating a second PSR, and, in any event, he has not shown how he was prejudiced by the lack of a second PSR. The trial court was justifiably concerned about Pursley's lengthy criminal history, which would have been reflected in an updated PSR. In addition, Pursley has not cited to a specific location in the record to show where he raised the lack of an updated PSR as an issue in his RCr 11.42 motion. In short, Pursley's claim that a new PSR was required is without merit, which dooms his inextricably interrelated argument that his attorney was ineffective for not demanding one.
Hammer clauses are not forbidden, as our Supreme Court explained in Pursley's direct appeal. See Pursley, 500 S.W.3d at 809 n.3. Thus, Pursley's arguments to the contrary notwithstanding, inserting a hammer clause into a plea agreement, standing alone, is neither prosecutorial misconduct nor ineffective assistance of counsel.
We now turn to Pursley's argument that his counsel was ineffective. To show ineffective assistance of counsel, Pursley must show counsel's performance "fell outside the wide range of professionally competent assistance" and "a reasonable probability" that he "would have insisted on going to trial" absent the deficient performance. Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984)). Pursley's burden is steep as a court "must indulge the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id.
Pursley raises a series of scattershot complaints about his counsel, none of which suffices to show ineffectiveness. For example, he contends counsel was ineffective for urging him to sign a plea agreement which ultimately resulted in Pursley receiving the maximum sentence. But merely recommending that a client plead guilty is insufficient to show counsel was ineffective. See, e.g., Commonwealth v. Campbell, 415 S.W.2d 614, 616 (Ky. 1967). Pursley received the maximum twenty-year sentence because of his criminal history and new charges, which are not attributable to any acts or omissions by counsel.
Pursley also speciously argues that counsel was ineffective for helping negotiate a plea agreement which lacked any benefits for Pursley. To the contrary, the second plea agreement: permitted Pursley to be released pending sentencing; reduced the charges from second to third-degree burglary; and would have resulted in a lower overall sentence than the first plea agreement if Pursley had not obtained new criminal charges.
Finally, Pursley's argument that counsel was ineffective for not ensuring the second plea agreement was signed by the Commonwealth is contrary to the record, which shows that a representative for the Commonwealth signed it (though that signature is illegible and resembles a squiggly line). Moreover, though it is unfortunate that the Commonwealth failed to sign the first plea agreement, any issues stemming from the lack of a signature are moot since Pursley was not sentenced pursuant to it. In short, having considered all of Pursley's arguments, singularly and cumulatively, we conclude he has not shown that his counsel was ineffective.
For the foregoing reasons, we affirm the Jefferson Circuit Court's order denying Pursley's RCr 11.42 motion.
ALL CONCUR. BRIEFS FOR APPELLANT: Shawn Pursley, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky