Opinion
NO. 2017-CA-000343-MR
06-08-2018
CHOUL LYOUNG SHIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Choul Lyoung Shin, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 10-CR-001593 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND THOMPSON, JUDGES. JONES, JUDGE: Choul Lyoung Shin appeals from the Jefferson Circuit Court's order entered November 7, 2016, denying his motions for an evidentiary hearing and to vacate judgment under RCr 11.42. We affirm.
Kentucky Rules of Criminal Procedure.
Background
On May 17, 2010, Shin was working at a Louisville restaurant when he telephoned twenty-year-old Kyung Lee and asked her to report to the restaurant for training. Upon Lee's arrival, however, Shin took her into a room and locked the door. Shin brandished a screwdriver and told Lee to remove her clothing. When she refused, Shin stabbed Lee with the screwdriver and began to strangle her. Shin then produced a knife and again ordered Lee to remove her clothing. Lee complied, at which point Shin fondled her breasts. When Lee again attempted to resist, Shin cut her right hand with the knife. Following the incident, Shin tried to clean the area in an attempt to remove Lee's blood from the scene. As he drove Lee to the hospital, Shin attempted to intimidate Lee into not contacting police.
The Jefferson County grand jury indicted Shin on multiple charges relating to the attack on Lee: first-degree assault, criminal attempt to commit first-degree rape, first-degree sexual abuse, first-degree unlawful imprisonment, first-degree wanton endangerment, tampering with physical evidence, witness tampering, and intimidating a participant in the legal process. Shin, who was born in North Korea, did not speak English; however, in all of his court appearances following arraignment, he was represented by counsel with the aid of an interpreter. On February 3, 2011, Shin entered a guilty plea in open court to the aforementioned charges, with the sole exception of his first-degree assault charge being amended to second-degree assault. Pursuant to Shin's plea agreement, the Commonwealth recommended a total sentence of twenty years' imprisonment on all charges. The circuit court entered final judgment and sentence in accordance with the plea agreement on April 4, 2011.
Kentucky Revised Statutes (KRS) 508.010, a Class B felony.
KRS 510.040(1)(a) and KRS 506.010, a Class C felony.
KRS 510.110(1)(a), a Class D felony.
KRS 509.020, a Class D felony.
KRS 508.060, a Class D felony.
KRS 524.100, a Class D felony.
KRS 524.050, a Class D felony.
KRS 524.040, a Class D felony.
KRS 508.020, a Class C felony.
Several months after sentencing, Shin moved the circuit court to grant shock probation in his case. The circuit court denied the motion on November 22, 2011. The record thereafter reflects no activity until March 10, 2015, when Shin requested records from the Office of the Jefferson Circuit Clerk. Shin filed a motion for belated appeal with the Supreme Court of Kentucky, which the Court denied on December 29, 2015. Subsequently, on or about July 20, 2016, Shin filed two pro se motions with the Jefferson Circuit Court under RCr 11.42, asking the circuit court to vacate and set aside his judgment and sentence as well as to grant an evidentiary hearing on his claims. The circuit court denied both motions in an order entered November 7, 2016. This appeal followed.
Our examination of the record did not reveal a stamped entry date for Shin's motions. However, the motions all appear to have been signed, noticed, or notarized on July 20, 2016.
Analysis
A successful petition for relief under RCr 11.42 for ineffective assistance of counsel must survive the twin prongs of "performance" and "prejudice" provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
A "deficient performance" contains errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Second, the appellant must show that counsel's deficient performance prejudiced his defense at trial. "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." An appellant must satisfy both elements of the Strickland test in order to merit relief.Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citation omitted) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. 2052). Appellate review of counsel's performance under Strickland is de novo. Id. (citation omitted).
As briefed before us, the Commonwealth asserts Shin's RCr 11.42 motions were untimely and asks us to affirm on that basis. "[A]n appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009) (citation omitted). In reply, Shin argues the time bar under RCr 11.42(10) should be equitably tolled due to his inability to speak English at the time he was sentenced. After some deliberation, we conclude Shin's briefed issues do not warrant relief under RCr 11.42, and thus we need not consider the equitable tolling question at this time.
Shin's pro se briefs are somewhat unfocused, but he generally argues (1) the indictment was flawed, and thus the courts did not have jurisdiction to try his case; (2) his trial counsel failed to investigate his case; and (3) his trial counsel failed to inform him of the possibility of deportation following conviction, as required by Padilla v. Kentucky. In its order denying Shin's motions under RCr 11.42, the circuit court found Shin's guilty plea was intelligent, knowing, and voluntary. Furthermore, the court found Shin "failed to articulate any substantive reasons that would support a finding of ineffective assistance of counsel or that would necessitate the convening of an evidentiary hearing."
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). The United States Supreme Court held "that counsel must inform [his] client whether his plea carries a risk of deportation[,]" and that failure to do so is "constitutionally deficient" assistance. Id., 559 U.S. at 374, 130 S. Ct. at 1486-87.
Shin's arguments have no merit. First, "the general rule in this state is that an unconditional guilty plea waives all defenses except that the indictment does not charge a public offense." Jackson v. Commonwealth, 363 S.W.3d 11, 15 (Ky. 2012). Even if Shin could prove deficiencies in the indictment, a defective indictment is not within the scope of RCr 11.42. Shepherd v. Commonwealth, 391 S.W.2d 689, 689 (Ky. 1965). Second, the circuit court's order indicates Shin voiced satisfaction with the services of his trial counsel during his plea colloquy. This contradicts Shin's bare assertion, seven years after the fact, that trial counsel did not investigate his case. "Solemn declarations in open court carry a strong presumption of verity." Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006) (citation omitted). Third, Shin's signed form entering his guilty plea explicitly provides for the possibility of deportation if the convicted person is not a United States citizen. Even if Shin did not understand English at the time of his plea, the record reflects Shin (1) signed the plea in open court, and (2) had the assistance of an interpreter on that court date. Therefore, the record indicates Shin was explicitly warned of possible deportation consequences in a manner comporting with Padilla. The circuit court did not err in its denial of Shin's motions.
Conclusion
For the foregoing reasons, we affirm the order of the Jefferson Circuit Court entered November 7, 2016.
ALL CONCUR. BRIEFS FOR APPELLANT: Choul Lyoung Shin, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky