Opinion
NO. 2013-CA-000980-MR
11-26-2014
JAMES D. SPARKS, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christine Foster Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 08-CR-00208
OPINION
REVERSING AND REMANDING
BEFORE: JONES, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: James Sparks was convicted of first-degree robbery and second-degree persistent felony offender and sentenced to twenty-three years' imprisonment. He appeals from the denial of his motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. Sparks requests this Court to reverse and remand the case to the circuit court for an evidentiary hearing.
The relevant facts were detailed by our Supreme Court in Sparks v. Commonwealth, 2009-SC-000610, 2011 WL 1103239 (Ky. 2011), and as evident in the Court's recitation, Michael (Jake) Shepher's testimony was particularly damaging to Sparks's defense.
The Commonwealth's proof included the store's surveillance video, which provided a very clear picture of the alleged robber whom several people identified as Sparks, as well as the testimonies of the two clerks on duty at the time of the incident, both of whom identified Sparks as the robber. Sparks testified in his defense, and he conceded that he entered the store at the time alleged and that one of the clerks gave him $150.00 from the store's cash register. The dispute at trial concerned how the robbery took place, with the clerks testifying that Sparks made threats and Sparks claiming that one of the clerks owed him money and paid the debt from the store's cash register without any threats on Sparks's part.
More particularly, Sparks testified that he and one of the clerks, Michael (Jake) Shepher, had used drugs together on numerous occasions and that Shepher owed him $150.00 for five Oxycontin pills. According to Sparks, Shepher, one of whose paternal cousins is a maternal cousin of Sparks, arranged to meet Sparks outside the store that evening and repay him. They met as planned, and, Sparks testified, Shepher told him to follow him into the store. As they entered, to Sparks's surprise Shepher announced to his co-worker that they were being robbed and proceeded to give Sparks all the money in the register, coincidentally the exact amount of the purported debt. Notwithstanding his surprise at this turn of events, Sparks accepted the money and left the store.
Shepher testified, however, that he did not know Sparks, despite their mutual cousin, and had had no prior contact with him. According to Shepher, as he and his co-worker were closing the store that evening, he took some trash to a dumpster near the side of the building and was accosted by Sparks, who raised his arm as though pointing
a gun but with his hand covered by the sleeve of his sweatshirt. Shepher testified that Sparks stated, "I have a gun," ordered Shepher not to look at him, and had Shepher lead him into the store. Inside, Shepher told his co-worker that they were being robbed. According to the co-worker, she feared Sparks might have a gun, because he kept one of his hands in the front pocket of his sweatshirt and told her not to do anything stupid. Shepher testified that at Sparks's command he gave him the money from the register, cleared the way for Sparks to leave through a back door, and then locked the doors and called 911.Id. at 1-2.
The Commonwealth played a recording of the 911 call for the jury. On the recording, one of the first things an obviously shaken Shepher tells the dispatcher is, "He said he had a gun. I know he was lying because his hand was in his sleeve." A moment later, during a pause while the dispatcher relays the robbery report to the police, Shepher is heard saying, apparently to his co-worker, "I should have beat the f— out of him; I know he didn't have a gun." Notwithstanding this bravura, however, Shepher remained afraid that the robber might return and asked the dispatcher how he would know that a knock on the door was really the police. She assured him that the police would arrive with their sirens on. When confronted on cross-examination with his "I know there was no gun" remarks, Shepher testified that initially he had taken the robber at his word, but that as the robbery progressed and he did not see a gun, he became convinced that probably there was not one. He thought it best, though, not to take any chances.
In March 2011, Sparks filed a pro se RCr 11.42 motion asserting ineffective assistance of counsel. Sparks alleged his trial counsel was ineffective for the following reasons: (1) failing to investigate and subpoena named witnesses who would have provided testimony to support Sparks's defense that Shepher planned an "inside job" to pay back a debt to Sparks; (2) failing to adequately examine and cross-examine witnesses; (3) failing to request a continuance in order to investigate and locate necessary witnesses; (4) failing to introduce into evidence the sweatshirt he wore on the night of the robbery; and (5) failing to permit him to timely accept a plea offer.
Sparks alleged additional claims of ineffective assistance of counsel before the trial court that are not presented on appeal and, therefore, are not discussed.
Sparks included with his motion various affidavits verified by Sparks. In an affidavit, he identified Bob Riley, Rhonda Shepher, Lori Sparks, Sandy Sparks, and Chuck Thompson who would have testified that Sparks and Shepher were aquatinted and states he told his trial court counsel to subpoena his grandmother's cell phone records that would verify Shepher called him regarding drugs. He further states his trial counsel refused to investigate his case further or talk to these potential witnesses. Sparks also submitted a letter purportedly signed by his "Aunt Rhonda" stating had she been called by Sparks's defense counsel, she would have testified regarding drug deals between Sparks and Shepher.
Sparks also filed an affidavit stating he and his counsel discussed the size of the sweatshirt he wore on the night of the offense and he could not have been armed with a gun unless there was a bulge. He told his counsel to introduce the sweatshirt as evidence to demonstrate he did not have a gun.
In another affidavit, Sparks states with specificity the basis for his claim that he was denied the opportunity to accept a plea offer because of trial counsel's ineffectiveness. Sparks states counsel informed him the Commonwealth offered fifteen years with a "20%" parole eligibility on a Friday and told it would expire three days later, on the following Monday. Sparks admits he informed trial counsel that he did not "want to plead guilty to a crime he did not commit" but states counsel told him to consider the offer and that he would return to the jail that evening. Sparks states counsel never returned. He further states that when he saw counsel briefly on the following Monday, he inquired about the plea offer and counsel informed him it was no longer offered. Finally, Sparks states he had decided to take the plea offer prior to Monday's deadline instead of going to trial.
Contemporaneously with his RCr 11.42 motion and supporting affidavits, Sparks filed a motion to proceed in forma pauperis, motion for appointment of counsel, and motion for an evidentiary hearing. Based on his pro se motion and affidavits, Sparks was appointed counsel.
At a status conference held on September 27, 2012, appointed counsel filed a "Motion to Submit on the Pleadings." On November 26, 2012, the circuit court issued an order denying a hearing and summarily denying Sparks's motion noting the case had been scheduled for an evidentiary hearing and appointed counsel filed a motion to submit on the pleadings. The trial court proceeded to discuss the merits of Sparks's claims.
Based on the record, the trial court found Sparks's allegations of ineffective assistance of counsel for failing to call certain witnesses, not adequately examining witnesses and impeaching the Commonwealth's witnesses, and not requesting a continuance were trial tactics and, therefore, did not warrant RCr 11.42 relief. It further found that whether Shepher believed Sparks possessed a gun was considered on direct appeal.
Appointed counsel filed a Kentucky Rules of Civil Procedure (CR) 59.05 motion arguing a hearing was required and, contrary to the circuit court's order, the case had not been set for an evidentiary hearing when counsel filed a motion to submit on the pleadings. After the court denied the motion, Sparks appealed.
The appropriate standard of review for an ineffective assistance claim is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As stated in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002), the Strickland standard is two-pronged:
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 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.(internal citations omitted). The court may determine the question of prejudice before determining whether counsel's performance was deficient. Brewster v. Commonwealth, 723 S.W.2d 863, 864-65 (Ky.App. 1986).
To show prejudice, the defendant must show 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 the probability sufficient to undermine the confidence in the outcome.
RCr 11.42(5) states in part that if there is a "material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing[.]" "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). However, an evidentiary hearing is not required if the record refutes the claim of error or when the allegations, even if true, would not be sufficient to invalidate the conviction. Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993).
In Commonwealth v. Searight, 423 S.W.3d 226 (Ky. 2014), our Supreme Court emphasized the requirement that the movant produce verified facts, typically in affidavit form, to support an RCr 11.42 hearing. It stressed that the failure to inform the court of the identity of a potential witness and the content of his or her potential testimony is a "self-created ambiguity" that does not warrant an evidentiary hearing. Id. at 232 n. 20. "[A]llowing defendants to create their own entitlement to an evidentiary hearing through artful pleading would circumvent and nullify RCr. 11.42(5)'s limitation on when evidentiary hearings are mandated. We cannot endorse such a result[.] Id. (internal citation omitted).
Particularly when filed pro se, the failure to adequately set forth facts sufficient to support a request for RCr 11.42 is frequently a fatal flaw in such motions. However, Sparks's affidavits were sufficient to require a hearing.
Regarding trial counsel's failure to investigate the facts, call certain witnesses, and request a continuance, we conclude Sparks's alleged facts supported by his affidavits filed with his pro se RCr 11.42 motion are sufficient to warrant an evidentiary hearing. He not only identified the witnesses by name, but submitted affidavits subject to perjury charges wherein he verified the specific testimony the witnesses would have offered.
The trial court found the decision not to interview and call these witnesses was trial strategy. A tactical decision by trial counsel is given "a strong presumption of correctness, and the inquiry is generally at an end." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994)). "[I]f the decision was not tactical, then the court must evaluate whether there was a reasonable probability that, but for the deficiency, the result would have been different." Commonwealth v. Bussell, 226 S.W.3d 96, 106 (Ky. 2007).
Although a court will not second-guess counsel's trial strategy in a post-conviction proceeding, the trial court is not free to merely speculate trial counsel's actions were the result of a strategic decision. The record must conclusively establish that counsel's failure was part of a strategic plan or the trial court must find there could be no prejudice under Strickland. Searight, 423 S.W.3d at 231. Otherwise, an evidentiary hearing must be held to determine whether counsel's decision was, in fact, "trial strategy, or 'an abdication of advocacy.'" Hodge, 68 S.W.3d at 345 (quoting Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997)).
The record does not conclusively establish trial counsel's decision not to call the potential witnesses identified by Sparks was part of his strategy in presenting Sparks's defense. In fact, the testimony Sparks states would have been provided by these witnesses would have supported Sparks's defense. Because of his presence at the crime scene, his only defense was that the robbery was staged by Shepher. The potential witnesses would have discredited Shepher's testimony that he was not acquainted with Sparks. We conclude Sparks is entitled to an evidentiary hearing regarding the failure to interview and call the identified potential witnesses.
We are equally convinced Sparks was entitled to a hearing regarding the failure to introduce into evidence the sweatshirt Sparks wore on the night of the crime. Sparks reasons that had he put on the sweatshirt in front of the jury, they would have seen the sleeves were too short for anyone to believe he was concealing a weapon, a fact that reasonably could have resulted in a conviction for second-degree robbery rather than first-degree robbery. Consistent with the law recited, because it cannot be conclusively determined from the record whether counsel's actions were trial strategy or if the prejudice prong of Strickland can be met, we conclude Sparks is entitled to an evidentiary hearing on this allegation.
Finally, Sparks contends counsel was ineffective for failing to allow him to timely respond to a plea offer made by the Commonwealth. The United States Supreme Court has recognized a defendant's right to effective assistance of counsel in rejecting a plea offer.
If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if
loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). Adapting the Strickland test to the circumstances, the Court set forth the applicable standard:
In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.Id. at 1385.
Sparks's specific allegation of ineffective assistance regarding the plea offer is not conclusively refuted by the record. Sparks's affidavit filed with his pro se RCr 11.42 is sufficient to require a hearing.
Our conclusion that Sparks's allegations are sufficient to entitle him to a hearing necessarily requires we address the issue of waiver. The trial court was presented with an unusual procedural twist. Despite counsel's appointment to represent Sparks at an evidentiary hearing, counsel filed a motion to submit on the pleadings. Essentially, RCr 11.42 counsel defaulted on the issue of Sparks's entitlement to a hearing. It was not until the motion was summarily denied that counsel reasserted Sparks's entitlement to a hearing in a CR 59.05 motion. The question is whether RCr 11.42 appointed counsel can waive a hearing if the motion cannot be determined on the record.
RCr 11.42(5) provides that "[i]f the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal. (emphasis added). The use of the word "shall" leaves no discretion with the trial court. Simply stated, if the movant's allegations are not refuted on the record, without an evidentiary hearing, the trial court's denial of RCr 11.42 relief is necessarily based on impermissible speculation.
We recognize that the trial court in this case was led down the path to error by RCr 11.42 counsel's motion to submit on the pleadings. Nevertheless, we do not believe Sparks should be denied a hearing on that basis.
Under current law, 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 v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010). However, that does not leave an RCr 11.42 movant without recourse to some judicial relief from counsel's errors. When an indigent in an RCr 11.42 proceeding is entitled to counsel, that entitlement "anticipates that the representation . . . will be at least minimally competent." Moore v. Commonwealth, 199 S.W.3d 132, 139 (Ky. 2006). In Moore, the Court cautioned:
Our holding in this regard should not be construed as sanctioning the filing of a subsequent RCr 11.42 motion for the purpose of claiming ineffective assistance of counsel in litigating a previous RCr 11.42 motion. Such potentially interminable post-conviction proceedings would certainly bring our judicial system to its knees. However, when incompetence of counsel, especially state-appointed counsel, costs an indigent defendant a statutory right of appeal, that defendant ought to be entitled at least to a reinstated or belated appeal.Id. (internal quotations and citation omitted). We conclude Sparks was entitled to a hearing pursuant to RCr 11.42(5) and denied that right by counsel's inadvertent waiver. He "ought to be entitled at least" to a hearing. Id.
For the reasons stated, we reverse and remand the Greenup Circuit Court's summary denial of Sparks's claims of ineffective assistance of counsel as alleged on appeal and remand for an evidentiary hearing.
ALL CONCUR. BRIEF FOR APPELLANT: Christine Foster
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky