Opinion
NO. 2014-CA-000788-MR
04-24-2015
KEON LUVELLE SIMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Keon Luvelle Sims, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tom Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 10-CR-000481
OPINION
AFFIRMING
BEFORE: CLAYTON, D. LAMBERT, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Keon Luvelle Sims, proceeding pro se, appeals from the February 18, 2014, opinion and order of the Jefferson Circuit Court denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief without an evidentiary hearing. Finding no error or abuse of discretion, we affirm.
In February 2010, Sims was indicted by the Jefferson County grand jury on two counts of first-degree robbery pursuant to Kentucky Revised Statutes (KRS) 515.020, stemming from separate incidents on December 19, 2009, when he and an unknown person robbed a Speedy Mart on Bardstown Road and a Speedway on Taylorsville Road. Sims displayed a gun and demanded and received cash from both stores before fleeing. After being found in the described getaway vehicle, Sims was arrested wearing clothes that matched the surveillance videos from both locations. A blue hooded sweatshirt, two black ski masks, and black gloves were collected from the vehicle.
In May 2010, the circuit court granted Sims's motion for a competency evaluation at Kentucky Correctional Psychiatric Center pursuant to KRS 504.100 and RCr 8.06. Based upon the evaluation, Sims stipulated that he was competent, and the court made a similar ruling. In August 2010, Sims, through his appointed counsel, moved the court to suppress the evidence obtained by the police and statements he made at headquarters. He argued that he had been stopped by police without probable cause or reasonable suspicion and that the evidence had been seized without a warrant or his consent, and was not incident to a lawful arrest or subject to exigent circumstances. In a separate motion, Sims moved the court to suppress the out-of-court identification made during a show-up identification with one of the witnesses at the Speedy Mart. A suppression hearing was scheduled for September 16, 2010. However, a suppression hearing was not held that day. Rather, the court heard several pending motions, including the Commonwealth's motion to obtain a buccal swab from Sims to test against the evidence collected in the vehicle, which the court granted. Sims agreed with the court that he had two pending motions to suppress, and the parties set dates for a suppression hearing as well as for trial.
Rather than proceeding with a suppression hearing or trial, Sims opted to enter a guilty plea at a court date on November 3, 2010. Pursuant to the terms of the Commonwealth's plea agreement, Sims agreed to plead guilty to both robbery charges with recommended sentences of seventeen years to serve, to run concurrently with each other. Sims also agreed that his probation would be revoked in two earlier indictments, 07-CR-000787 and 07-CR-003032, and that his sentences for those cases would run consecutively to his sentence in the present case by operation of law. He would be placed on home incarceration for thirty days following the entry of the plea, at which time he would turn himself in to the circuit court. Sims agreed that if he violated the terms of the home incarceration program or was charged with a criminal offense, his sentence would be twenty-five years to serve on the present case in addition to the sentences in the earlier cases.
During the hearing, Sims's counsel indicated that he had not recommended that Sims accept the plea based on the inclusion of the hammer clause in relation to the home incarceration portion of the plea. But based upon their conversations, counsel believed that Sims was making an informed decision and that he understood what he was doing. The court specifically went over the home incarceration portion of the plea agreement and the effect of the hammer clause as well as the fact that Sims had pending motions to suppress. Sims stated that he understood that the court would not be making a decision on the motions to suppress because he was entering a guilty plea. At the conclusion of the colloquy, Sims and his counsel signed the guilty plea form and the court accepted his plea. Sims's counsel went on to state that he and Sims had discussed the motions to suppress and parole eligibility. He also went over the dates that he and Sims had met in person to discuss his case, letters he had sent, and telephone conversations during which they discussed his case and possible defenses. Sims agreed that his counsel had communicated with him during those times. Sims was to turn himself in on December 6, 2010, to begin service of his sentence.
The court held a sentencing hearing on January 14, 2011. Sims's counsel discussed the hammer clause and informed the court that new charges were filed while Sims was on home incarceration. Sims's counsel and the Commonwealth agreed to a new sentence of twenty years, at 85%, rather than twenty-five years as the plea agreement stated. Sims stated that he agreed with this new sentence. Counsel indicated that he and Sims had discussed how the hammer clause process worked and Sims understood that he had a right to a hearing, but decided to take his counsel's advice and agree to the new terms. The court accepted the new terms and sentenced him in accordance with the plea agreement. Finally, Sims moved for a week of home incarceration before beginning service of his sentence, stating that the new charges against him were false and caused him to lose three weeks of home incarceration. The court denied this motion. On January 20, 2011, the court entered its written final judgment of conviction and sentenced Sims to twenty years' imprisonment on the robbery convictions. The court also revoked Sims's probation in the earlier cases, thereby sentencing Sims to an additional ten years for a total of thirty years' imprisonment.
In January 2012, Sims filed a pro se motion for relief pursuant to RCr 11.42, for appointment of counsel, and for an evidentiary hearing. He alleged that his guilty plea was involuntary because his counsel had been ineffective, citing his lack of investigation, his failure to adequately consult with him, and his failure to object to the twenty-year sentence when the plea agreement had been for a seventeen-year sentence. He stated that he would not have entered a guilty plea, but rather would have insisted on going to trial, had he received effective assistance. In the accompanying memorandum, Sims also stated that the motions to suppress had never been ruled on. The court appointed the Department of Public Advocacy to represent Sims, but his appointed counsel later withdrew pursuant to KRS 31.110(2)(c). The Commonwealth filed a response in opposition to Sims's RCr 11.42 motion, arguing that his claims were refuted by the record and lacked sufficient specificity, and that his motion should be denied without an evidentiary hearing.
The circuit court entered an opinion and order on February 18, 2014, denying Sims's RCr 11.42 motion. In so holding, the court observed:
Clearly, additional investigation herein would have been a poor use of trial counsel's time. Sims had been identified from the surveillance video and by an
eyewitness. The car which he was driving was identified as the getaway vehicle. Sims had signed a rights waiver and confessed to being the getaway driver. Based upon the foregoing, there was sufficient evidence from which a jury could conclude that Sims was guilty. Therefore, counsel was not ineffective in advising him to plead guilty. The plea entered herein was clearly a reasonable choice for Sims, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Under these circumstances, Sims' counsel was justified in advising him to plead guilty, see [Lewis] v. Commonwealth, 472 S.W.2d 65 (Ky. 1971) and counsel was effective[.]Based on the record before it, the court did not hold an evidentiary hearing. This appeal now follows.
On appeal, Sims continues to argue that he is entitled to an evidentiary hearing and RCr 11.42 relief, while the Commonwealth contends that the circuit court properly denied his motion.
The applicable standard of review in RCr 11.42 post-conviction actions is well-settled in the Commonwealth. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. 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), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874, 878 (Ky. 1969).
If an evidentiary hearing is held, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983). If an evidentiary hearing is not held, as in the present case, our review is limited to "whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986). More specifically, the Supreme Court set forth the applicable standard as follows:
2. After the answer is filed, the trial judge shall determine whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required. A hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record. Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44 (1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994); Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967). The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Drake v. United States, 439 F.2d 1319, 1320 (6th Cir. 1971).Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001).
The Supreme Court of Kentucky revisited the law addressing RCr 11.42 proceedings in Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)), noting that "[s]uch a motion is limited to the issues that were not and could not be raised on direct appeal." Haight, 41 S.W.3d at 441. The Court went on to state:
In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).Id. at 441-42. Furthermore, RCr 11.42(2) requires to movant to "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." See also, Fraser, 59 S.W.3d at 452.
A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949 S.W.2d 70 (1997).
For his first argument, Sims contends that his trial counsel's ineffective assistance rendered his plea agreement invalid due to his counsel's failure to adequately investigate his case and prepare for trial before advising him to plead guilty. Sims also states that his counsel failed to consult with him concerning his investigation and preparation. We disagree.
When a defendant argues that his guilty plea was rendered involuntary due to ineffective assistance of counsel, the trial court is required
to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel." To support a defendant's assertion that he was unable to intelligently weigh his legal alternatives in deciding to plead guilty because of ineffective assistance of counsel, he must demonstrate the following:Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal citations omitted).
(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.
As the Commonwealth stated in its brief, Sims was facing a sentence of ten to forty years if he had been convicted at trial of the first-degree robbery charges and as many as twenty years if he had been convicted of a lesser-included offense. A seventeen-year sentence was a reasonable bargain for him to make, considering length of the sentences he could potentially face. Sims had also negotiated a thirty-day release on home incarceration prior to beginning service of his sentence. Furthermore, our review of the guilty plea hearing establishes that Sims understood what he was doing and that he had in fact opted to accept a higher prison sentence against the advice of his counsel. He never at any time, either at the guilty plea hearing or at the sentencing hearing or any time in between, expressed that his plea was anything other than voluntary. We agree with the Commonwealth that there was no reasonable probability that Sims would have rejected the plea and gone to trial based upon any alleged ineffectiveness of his attorney.
We also agree with the Commonwealth that Sims was not entitled to an evidentiary hearing because the record refuted the allegations in his motion for relief. While Sims claimed that he would have gone to trial if had been afforded the opportunity to do so, his allegations were vague and conclusory.
Regarding his specific claims, Sims's claim that his attorney never discussed his case with him and would only discuss "pleading the case out" were directly refuted during the guilty plea hearing, when Sims stated that he had discussed the case with his attorney and did not need additional time to discuss it and when his attorney provided a lengthy list of dates they had met to discuss the case as well as written correspondence and telephone conversations he had with Sims and his mother. Next, Sims's claim that he had no choice but to enter a guilty plea was similarly refuted at the guilty plea hearing based on the evidence that he was aware of his rights and was not displeased with his attorney's representation. We also reject Sims's claim that his counsel's failure to properly investigate and pursue possible defenses entitles him to relief. Sims failed to specifically show what his counsel could have discovered or how this prejudiced him.
Next, Sims raises a claim regarding the circuit court's failure to hold a suppression hearing or rule on his motions to suppress. However, the record establishes that the court did not hear those motions because Sims had decided to plead guilty. The court went over this in detail at the guilty plea hearing, and Sims was aware that the suppression motions would not be heard. Therefore, Sims waived any argument with regard to his suppression motions. The same is true with his admission as to the sufficiency of the evidence based upon his decision to plead guilty.
Accordingly, Sims failed to establish that he received ineffective assistance of counsel related to his decision to plead guilty or that he was prejudiced as a result.
For his second argument, Sims contends that his counsel was ineffective at his sentencing hearing. In his brief, Sims claims that he was not aware that he could reject the final sentence of twenty years, which represented a three-year increase from his plea agreement. However, the Commonwealth points out that his original guilty plea included a provision that if he were to violate a condition of his home incarceration or be charged with a new offense, he would be sentenced to twenty-five years in prison rather than seventeen years. At the final hearing, counsel informed the court that Sims and the Commonwealth had entered into an agreement that his sentence would be reduced to twenty years, resulting in a five-year reduction in his prison sentence. Furthermore, based upon this favorable agreement, Sims had opted not to challenge the hammer clause in his original plea. Finally, we reject Sims's argument that his counsel was ineffective by failing to raise the argument that his conviction should not be considered as a violent offense. We agree with the Commonwealth that Sims was properly sentenced as a violent offender pursuant to KRS 439.3401, KRS 533.060, and KRS 515.020.
For the foregoing reasons, the opinion and order of the Jefferson Circuit Court denying the motion for RCr 11.42 relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Keon Luvelle Sims, Pro Se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Tom Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky