Opinion
NO. 2012-CA-000914-MR
11-27-2013
TIMOTHY C. SHANE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENTS FOR APPELLANT: Renee VandenWallBake Department of Public Advocacy Frankfort, Kentucky BRIEF AND ORAL ARGUMENTS FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 04-CR-000977 & 08-CR-001427
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND TAYLOR, JUDGES. MAZE, JUDGE: Appellant, Timothy Shane, appeals from the Jefferson Circuit Court's order denying his motion for relief under Kentucky Rules of Criminal Procedure (RCr) 11.42. Shane contends that the court erred in summarily denying his claim of ineffective assistance of post-conviction counsel without appointing him counsel or conducting an evidentiary hearing. Because Kentucky law allows such claims to be asserted either directly or collaterally, we affirm the trial court's order denying his motions.
Background
On March 25, 2004, a Jefferson County grand jury returned indictments against Shane on the charges of first-degree rape, first-degree sodomy, first-degree burglary and second-degree persistent felony offender ("PFO") stemming from events which occurred in 1993. Shane, who was serving a sentence in Colorado, returned to Jefferson County following the issuance of an arrest warrant and an Interstate Agreement of Detainer ("IAD"). Following a jury trial, Shane was convicted of the burglary and PFO charges, acquitted of sodomy and the jury failed to reach a verdict on the rape charge. The court sentenced Shane to a total of thirty-five years in prison; however, the Kentucky Supreme Court overturned his conviction and sentence on direct appeal. See Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007).
On March 31, 2008, the trial court again issued an IAD for Shane's return from Colorado and a month later, a grand jury re-indicted him on the first-degree rape, first-degree burglary and second-degree PFO charges originally brought in 2004. In addition, the Commonwealth sought, and the grand jury returned, indictments on the charges of second-degree robbery and first-degree unlawful imprisonment, both arising from the same 1993 incident. Following a four-day trial in April 2009, a jury found Shane guilty on all charges. Shane subsequently waived sentencing in favor of an agreement regarding his sentence. Under the agreement, Shane expressly waived his right to appeal and agreed to serve a total of thirty years in prison.
During the appeal of his first conviction, Shane began what would become an extensive history of unsuccessful motions seeking vacation of his conviction on the basis that the Commonwealth allegedly violated the 2004 and 2008 IADs by not resolving his case within the requisite 180-day period. Shane filed a motion on this basis once in 2007 and three times in 2008. After his conviction and sentencing agreement in 2009, Shane filed three state actions, each alleging the Commonwealth's violation of the 2008 IAD, as well as violation of his right to a speedy trial. In addition, he filed a federal action on the same basis in 2011. All of these were denied.
On June 26, 2009, Shane filed a pro se motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 alleging the same violations of the IAD and his right to a speedy trial. The trial court appointed Shane post-conviction counsel from the Department of Public Advocacy ("DPA"). Shane subsequently filed a pro se motion to vacate his convictions pursuant to RCr 11.42. In this motion, Shane alleged that the Commonwealth's decision to add the charges of robbery and unlawful imprisonment to his 2008 indictment constituted "prosecutorial vindictiveness" in response to his successful direct appeal and that his trial counsel's failure to object to the additional charges constituted ineffective assistance of counsel. Shane's appointed DPA counsel filed a supplemental motion and memorandum in support of the pro se motion.
The trial court rejected both the CR 60.02 and RCr 11.42 motions, finding that Shane had waved his objection to non-compliance with the IAD when he agreed to a continuance of his trial. Furthermore, the trial court found that Shane had provided evidence which was insufficient to sustain a claim that the Commonwealth retaliated against him by filing additional charges, and that the record sufficiently refuted his claim to the contrary. Shane appealed the trial court's findings to this Court. Following the trial court's appointment of DPA to represent Shane in the appeal, the DPA filed a motion for leave to withdraw as his counsel, stating that, pursuant to statute and because of the nature of Shane's claim on appeal, Shane was not constitutionally entitled to counsel and should be permitted to proceed with his appeal pro se. The trial court granted the motion and the DPA withdrew from its representation of Shane.
In a January 2012 opinion, this Court found that Shane was barred from bringing his claim regarding the IAD under CR 60.02 because it could have been, but was not, raised in his original RCr 11.42 claim. See Shane v. Commonwealth, 2010-CA-002296-MR, 2011 WL 4633999 (Ky. App. 2011). We also refused to consider Shane's claim of prosecutorial vindictiveness because it had not been raised directly to the trial court. A month after our opinion became final, Shane filed another motion pursuant to CR 60.02, again alleging the Commonwealth had violated the 2008 IAD, requiring the vacation of his conviction and sentence. The trial court, acknowledging Shane's "myriad of challenges," denied the motion and prohibited Shane from filing any further motions relating to the IAD. On March 2, 2012, Shane responded by filing another motion pursuant to RCr 11.42 seeking vacation of the trial court's October 2010 order which, as mentioned above, disposed of his claims regarding the 2008 IAD and prosecutorial vindictiveness, and which this Court had affirmed only two months prior. The trial court denied this motion without appointing Shane counsel and without the benefit of an evidentiary hearing. It is from this order that Shane now appeals.
Standard of Review
The circuit court's findings regarding claims of ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). In addition, as the reviewing court, we may set aside the trial court's fact determinations only if they are clearly erroneous. Id. (citing CR 52.01).
Analysis
On appeal, Shane contends that his post-conviction counsel during his initial RCr 11.42 was ineffective in failing to supplement his only claim, prosecutorial vindictiveness, with the argument that trial counsel unreasonably failed to object to the Commonwealth's violation of the IAD. Shane also argues that his post-conviction counsel was ineffective due to her "objectively unreasonable" decision to withdraw as his counsel after he had appealed the trial court's denial of his motions.
Paramount among the issues presented in this case is whether Shane was entitled to the effective assistance of post-conviction counsel. We review this threshold issue first, as it will determine whether we reach Shane's substantive claims of ineffective assistance of counsel.
I. The Right to Effective Assistance of Post-Conviction Counsel
Shane urges this Court to find that he enjoyed a right to effective assistance of counsel during his initial RCr 11.42 and CR 60.02 actions. As authority for this argument, he cites to the Kentucky Supreme Court's decision in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010), as well as the recent United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).
The linchpin of Shane's theory on appeal is the premise that his RCr 11.42 and CR 60.02 claims were "the equivalent of a direct appeal" because, despite their collateral nature, they constituted the first opportunity he had to raise them. Therefore, he argues the holding in Hollon entitled him to effective assistance of counsel in bringing those appeals.
Hollon involved a defendant's RCr 11.42 motions concerning the performance of both his trial counsel and separate counsel who represented him on direct appeal. Hollon's appointed counsel for the RCr 11.42 proceedings supplemented his motion prior to the circuit court's decision to deny that motion, a decision affirmed by the Court of Appeals. The Court of Appeals, citing Supreme Court precedent, refused to hear the merits of Hollon's claims against his appellate counsel. Asked to reconsider its precedent, our Supreme Court reviewed the case and ultimately found in favor of Hollon.
In its opinion, the Court held that defendants are entitled to the effective assistance of appellate counsel, reversing a line of cases which held otherwise. However, the Court was careful to emphasize that, even after its holding, "[ineffective assistance of appellate counsel] claims are limited to counsel's performance on direct appeal; there is no counterpart for counsel's performance on RCr 11.42 motions or other requests for post-conviction relief." Hollon, 334 S.W.3d at 437.
Shane asserts that his RCr 11.42 and CR 60.02 claims fit within this newly constructed framework because he had not had the chance to raise the issues regarding trial counsel prior to their filing; therefore, his collateral motions must be treated as a direct appeal and the rule in Hollon provides him an avenue for relief. Key to Shane's comparison of his post-conviction claims to a direct appeal is a federal Supreme Court decision, Martinez v. Ryan, which permits a similar comparison. Accordingly, we must address the validity of Shane's post-conviction-direct appeal equivalency, as well as the applicability of Martinez to the present case. Only then can we conclude whether Hollon provides Shane with a right to effective assistance of counsel in his post-conviction claims.
Martinez addressed the issue of "whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance" of trial counsel. Id. at 1315. The question arose in the context of a prisoner's federal habeas corpus petition which the Federal District Court refused to entertain pursuant to the doctrine of "procedural default." In Martinez's case, his counsel declined to raise any claims of ineffective assistance of trial counsel at the collateral stage of his case - the only stage at which Arizona law permitted such claims to be raised. On the basis of this failure, the District Court and Court of Appeals for the Ninth Circuit denied the petition and the Supreme Court took up the matter.
Under the doctrine of "procedural default," a federal habeas court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. As the Court in Martinez stated, such doctrines are in place in federal courts "to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceeding within our system of federalism." Martinez, 132 S.Ct. at 1316 (citing to Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).
In its opinion, the Supreme Court recognized that, "where . . . the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective-assistance claim." Id. at 1317. To address this procedural anomaly, the Court concluded that
[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.Id. at 1320 (emphasis added).
Again, Shane asserts that Martinez controls the issue at hand. He argues that, just like the Supreme Court found that a defendant's federal habeas claim could constitute an "initial-review collateral proceeding[]" in Martinez, we must also find that Shane's CR 60.02 and RCr 11.42 claims were the equivalent of a direct appeal within the context of Hollon. We disagree. Martinez came to the United States Supreme Court via the State of Arizona, where, unlike Kentucky, a convicted person alleging ineffective assistance of trial counsel can only bring such a claim in a state collateral proceeding, not on direct appeal. This function of Arizona law was the impetus for the Martinez Court's willingness to lower the procedural bar a defendant would otherwise encounter.
The same procedural bar which exists in Arizona does not exist in Kentucky. See Humphrey v. Commonwealth, 962 S.W.2d 870, 872-73 (Ky. 1998); Rodriguez v. Commonwealth, 87 S.W.3d 8, 11-12 (Ky. 2002). The Martinez Court went to great lengths to limit its ruling with this difference in mind, making it clear that its decision would not apply "to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons." Martinez, supra, at 1320. The few courts in Kentucky who have taken up the issue since Martinez have consistently and exclusively held that Kentucky is such a state. See Foley v. White, Civ.A. 6:00-552-DCR, 2013 WL 375185 (E.D. Ky. Jan. 30, 2013), amended, Civ.A. 6:00-552-DCR, 2013 WL 990828 (E.D. Ky. Mar. 12, 2013). Additionally, courts within the Sixth Circuit and other federal circuits have further held that in states like Kentucky, Martinez does not control. Moore v. Mitchell, 708 F.3d 760, 784-85 (6th Cir. 2013); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012); Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012).
In an unpublished opinion, we held in Denny v. Commonwealth, 2011-CA-001232-MR, 2012 WL 2604599 (Ky. App. 2012), that the holding in Martinez was "persuasive" and that "the initial RCr 11.42 proceeding . . . should have effectively operated as the direct appeal." Despite this, citing to Hollon and Bowling, we followed our prior holdings in concluding that "there is no right to effective assistance of counsel in post-conviction proceedings in Kentucky." Denny at 3.
We note the recent U.S. Supreme Court case of Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), which held that though Texas law technically permitted a defendant to bring ineffective assistance claims on either direct appeal or by collateral challenge, Martinez nonetheless applied and the defendant was permitted to bring his habeas petition because Texas law "as a matter of its structure, design, and operation does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal." 133 S.Ct. at 1921. However, it is not for us to declare today that Kentucky law is so comparable to Texas law that Trevino must apply to the present appeal, nor is it our task to determine whether those laws are distinguishable enough to reject Trevino along with Martinez. Rather, we withhold such judgment and proceed according to established precedent pending application or rejection of the rule announced in Trevino. Furthermore, while we would be remiss if we did not mention this U.S. Supreme Court precedent, mere mention of Trevino in passing at oral argument was hardly sufficient to inform this Court, or to fairly notify the Commonwealth, of its alleged import to this case.
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The distinction between the circumstances in Martinez and those surrounding Shane's appeal, as well as the prevailing weight of authority declining to extend Martinez in states like Kentucky, is too significant to ignore. Though a split in authority may exist across federal circuits, and though the recent Trevino decision has only added to this uncertainty, our reading of Martinez along with authority in the Sixth Circuit and the federal courts within our Commonwealth lead us to conclude that Martinez lends no meaningful support to Shane's assertion that his post-conviction claims equated to a direct appeal.
In light of the above analysis, and without any authority for Shane's assertion that his collateral claims are comparable to a direct appeal, we must conclude that Hollon does not endow Shane with a right to the effective assistance of counsel - a pre-requisite to our consideration of the merits of his claims. While it is true that the decision in Hollon changed the law in Kentucky, Shane's portrayal of this change as favoring him in the present appeal is mistaken. Shane's RCr 11.42 and CR 60.02 motions did constitute his first chance to raise claims regarding the performance of his trial counsel, but that fact alone does not transform a post-conviction appeal into a direct one. It remains the case that Shane's motions are collateral in nature and the Hollon Court expressly stated that claims of ineffective assistance of post-conviction counsel shall not be considered, as a right to effective assistance of counsel does not exist beyond direct appeal. We are compelled to obey this explicit instruction in the present case.
Accordingly, we do not reach the merits of Shane's RCr 11.42 claim, as that claim asserts violation of a right he does not possess. We remain bound to the principle that a defendant in Kentucky does not possess a constitutional right to effective assistance of post-conviction counsel. That a defendant chooses not to raise his claim at the first chance our laws provide - or waives his right to do so - cannot change the legal calculus. Rather, it remains the case that he was entitled to effective assistance of counsel upon the direct appeal of his claim. This is all the constitution and our Commonwealth's laws require.
In all cases such as this one, appellate courts are called on to balance the interests of justice with those of judicial economy. In doing so, we remain vigilant of defendants' rights and of the fact that, while the vast majority of assistance provided to defendants is superbly given, attorneys do err. However, to declare, even on a limited or ad hoc basis, that a defendant has an unfettered right to effective assistance of counsel at all stages of appeal would be to invite a flood of litigation, creating a sea of frivolous or successive claims which would inevitably obscure those meritorious challenges truly deserving of our attention. In the absence of any precedential or constitutional compulsion, we decline to declare so today.
Conclusion
We find that the trial court correctly denied Shane's RCr 11.42 motion. The order of the Jefferson Circuit Court is therefore affirmed.
MAZE AND STUMBO, JUDGES, CONCUR.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS AND ORAL ARGUMENTS
FOR APPELLANT:
Renee VandenWallBake
Department of Public Advocacy
Frankfort, Kentucky
BRIEF AND ORAL ARGUMENTS
FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky