Opinion
NO. 2017-CA-001128-MR
07-06-2018
HENRY STACY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Christine Foster Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 14-CR-00042 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES. DIXON, JUDGE: Henry Stacy appeals the Fayette Circuit Court's order denying his motion for an evidentiary hearing and to vacate his sentence pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. Stacy argues he is entitled to extraordinary relief for ineffective assistance of counsel because his trial attorneys failed to (1) retain an expert witness; (2) advise him of the "impaired state of mind defense"; (3) move to suppress evidence; and (4) advise him of their opinion the death penalty would be abolished in Kentucky. After careful review, we hold the allegations in Stacy's RCr 11.42 motion, assumed true, do not support valid claims for ineffective assistance of counsel and affirm.
On November 8, 2013, Suzanne Rogers returned home to find her husband, Tom Rogers, unresponsive and bloody. Tom, a disabled seventy-four-year-old, had been stabbed fifteen times and beaten with various objects, including his own cane. He was taken to University of Kentucky Hospital and immediately pronounced dead.
During the following investigation, numerous people in the Rogers's neighborhood identified a suspect with a long ponytail. A police sketch artist then created a composite, and Josie Klute, Tom's former housekeeper, notified police the composite resembled her son, Stacy. Klute informed the police Stacy had previously performed masonry work for Tom. During a follow-up interview with police, Klute stated Stacy had telephoned and threatened to kill himself when she mentioned Tom's death. The police then obtained an exigent warrant for Klute's phone records and determined the call was made from Manchester, Kentucky. Stacy was located in Manchester and made incriminating statements during a police interview. Stacy's DNA was later matched to blood discovered at the scene.
While Stacy was being interviewed, officers were also speaking with Daniel Henson, who had been residing with Stacy in Manchester. Henson allegedly told police Stacy returned to their apartment one day and admitted to killing a man in Lexington while robbing his house. Henson also told the officers Stacy gave him a pearl necklace from the robbery to give to Henson's girlfriend. The Fayette County grand jury subsequently indicted Stacy with murder, robbery in the first degree, tampering with physical evidence, and being a persistent felony offender in the first degree. The Commonwealth then filed a notice of aggravating circumstances and its intent to seek the death penalty.
Because the case was noticed for the death penalty, attorneys from the Department of Public Advocacy's Capital Trials Branch were appointed to represent Stacy. The defense team then began investigating the Commonwealth's evidence, mitigating circumstances from Stacy's background, and potential litigation strategies. According to meeting notes, the defense team discussed the possibility of retaining an expert to conduct a functional magnetic resonance imaging (F.M.R.I.) scan to determine if Stacy suffered from head trauma affecting his impulse control but not his I.Q. However, an F.M.R.I. scan was not performed.
The defense team, through its case review, expressed uncertainty about its duty to disclose to Stacy the controversy surrounding Kentucky's death penalty protocols. In the event this controversy led to the abolishment of the death penalty in Kentucky, the defense team was concerned it would provide ineffective assistance by advising Stacy to accept a plea sentencing him to life imprisonment without the possibility of parole (LWOP). The defense team ultimately concluded the best strategy for avoiding a death sentence was a negotiated plea. They were particularly fearful "a jury [would] find nothing redeeming about [Stacy] and want to kill him." The defense team's case review described Stacy as the "poster child" for the death penalty.
Although the record does not disclose if the details of the case review were discussed with Stacy, he did ultimately agree to a plea deal. The Commonwealth offered to recommend LWOP on murder; ten years, enhanced to twenty by being a persistent felony offender, for robbery in the first degree; and five years, enhanced to ten, for tampering with physical evidence. Stacy's guilty plea was taken in open court and he stated, under oath, during his guilty plea colloquy that he had never been treated for or suffered from mental illness, was afforded all the time he needed to consult with his attorneys, had discussed his possible defenses, and was satisfied with counsel's representation. He acknowledged the rights he was waiving and answered in the negative when asked if counsel had failed to take any steps he requested they undertake while preparing for his case. The trial court sentenced Stacy consistent with the Commonwealth's recommendation.
Six months later, Stacy filed an RCr 11.42 motion to vacate his sentence, alleging four separate grounds resulting in ineffective assistance of counsel. First, Stacy pointed to the defense team's notes regarding the F.M.R.I. scan as proof trial counsel unreasonably failed to retain an expert who could have provided evidence explaining his actions. Second, he alleged trial counsel should have advised him of the "impaired state of mind" defense and requested a competency hearing to support this defense. Third, Stacy alleged trial counsel ignored multiple requests to file a suppression motion. He contended a suppression motion would have been meritorious because the affidavit to the exigent warrant falsely alleged Klute told police he intended to harm himself. Fourth, he alleged trial counsel failed to inform him of their alleged belief the death penalty would be abolished within five years.
The trial court denied the motion without an evidentiary hearing. It found his first claim of ineffective assistance lacked merit because he did not allege prejudice from trial counsel's failure to retain an expert. Furthermore, the trial court found it "entirely possible" counsel concluded an expert witness was unlikely to provide helpful information. The trial court found Stacy's second and third claims for ineffective assistance failed because his guilty plea refuted claims trial counsel failed to disclose available defenses or ignored requests for a suppression motion. Finally, it found his attorneys' personal beliefs about the future viability of the death penalty could not support a valid ineffective assistance of counsel claim. This appeal follows.
Stacy argues he raised valid ineffective assistance of counsel claims by asserting his guilty plea resulted from ignorance. Specifically, he claims his trial counsel failed to offer possible defenses, perform an adequate pretrial investigation, and disclose their opinion on the future viability of the death penalty. Because he could not be expected to know the facts underlying the aforementioned issues, Stacy contends his claims could not be conclusively refuted by his guilty plea colloquy. He also maintains an evidentiary hearing was required before his allegations against trial counsel could be disregarded as reasonable trial strategy; therefore, he argues we must remand the case to the trial court for an evidentiary hearing for each claim of ineffective assistance of counsel.
A prisoner under sentence seeking relief under RCr 11.42 must "establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceedings provided in RCr 11.42." Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). This requires a movant seeking to set aside his guilty plea to allege with particularity specific facts which, if true, would "render the plea involuntary under the Fourteenth Amendment's Due Process Clause, would render the plea so tainted by counsel's ineffective assistance as to violate the Sixth Amendment, or would otherwise clearly render the plea invalid." Stiger v. Commonwealth, 381 S.W.3d 230, 234 (Ky. 2012). An evidentiary hearing is required only if the motion asserts valid claims which raise an issue of fact that cannot be determined on the face of the record. Id. When the motion is denied without an evidentiary hearing, we review the trial court's application of legal standards and precedents de novo. Id.
"[T]o be entitled to relief from a guilty plea on the ground of ineffective assistance of counsel a defendant must show both that counsel provided deficient assistance and that he, the defendant, was prejudiced as a result." Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). Counsel's advice to plead guilty will be presumed competent unless his or her representation fell below "an objective standard of reasonableness." Id. "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Id. (citation omitted). "There is always a strong presumption that the conduct of counsel falls within the wide range of reasonable professional assistance[.]" Vaughn v. Commonwealth, 258 S.W.3d 435, 440 (Ky. App. 2008).
Prejudice is established, in the guilty plea context, by demonstrating "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). This determination "should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker." Id. at 474 U.S. at 60, 106 S. Ct. at 371. The movant "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010).
After reviewing the record, it is unclear if trial counsel informed Stacy it was possible to retain an expert to perform an F.M.R.I. However, such uncertainty is relevant to this appeal only if failing to retain an expert before advising Stacy to plead guilty was objectively unreasonable and creates a reasonable probability he would have rejected the Commonwealth's plea offer. Based on the record, the F.M.R.I. could have revealed brain trauma affecting his impulse control. Such evidence would not provide a defense to murder, but could provide mitigating circumstances during the sentencing phase of trial. "However, his decision to plead guilty shifts the focus of our review from allegations of lack of preparation to the reasonableness of counsel's advice." Vaughn, 258 S.W.3d at 439.
Under the circumstances of this case, it was not objectively unreasonable to advise Stacy to plead guilty to LWOP before retaining an expert to perform an F.M.R.I. scan. The evidence of Stacy's guilt was strong: Henson implicated him in the murder and Stacy's DNA was discovered at the scene of the crime. The fear a jury would recommend death was rational: there was evidence Stacy committed murder in the course of a robbery, and Tom's slaying was particularly brutal, even in the context of murder cases. The Commonwealth's offer to spare Stacy a possible death sentence could have been withdrawn before mitigating evidence could be developed. By way of comparison, Stacy's argument relies upon repeated speculation. Specifically, the mere possibility a retained expert would have uncovered a medical reason for his lack of impulse control, and the contingent possibility a jury would have found this evidence sufficiently mitigating in the context of Tom's murder to recommend a sentence short of LWOP. Viewed objectively, Stacy has not shown counsel's advice was unreasonable or that it would have been rational under the circumstances to reject the Commonwealth's plea and gamble a death sentence.
We also hold Stacy's allegation that trial counsel did not inform him of a possible "defense of mental impairment" fails to assert a valid claim for ineffective assistance of counsel. Stacy cites no authority holding "mental impairment" is a recognized defense to murder. "[T]here is no deficiency in failing to instruct one's client of legal defenses or strategies which are not available to the client." Rigdon v. Commonwealth, 144 S.W.3d 283, 291 (Ky. App. 2004). Although issues of competency and intent are relevant to any homicide charge, we are not obligated to parse the record and sculpt Stacy's vague allegation of "mental impairment" into a recognized defense. An RCr 11.42 motion must be made with particularity and supported by specific facts. Stiger, 381 S.W.3d at 234. Stacy's allegation he was not informed of an applicable defense was fatally deficient and did not warrant an evidentiary hearing.
To the extent Stacy believes he should have received a competency evaluation before being advised to plead guilty, we discern no grounds for an ineffective assistance of counsel claim. A competency evaluation is appropriate only if there are reasonable grounds to believe the defendant is incompetent to stand trial. Kentucky Revised Statute (KRS) 504.100(1); Gabbard v. Commonwealth, 887 S.W.2d 547, 550 (Ky. 1994). Stacy does not allege disclosure of information to trial counsel which would have led a competent attorney to reasonably doubt his competency. Such an assertion is refuted by statements in his plea colloquy. "Solemn declarations in open court carry a strong presumption of verity." Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977). Instead, he directs us to the notation regarding possible head trauma and impulse control. This is not evidence Stacy was incompetent to stand trial, which exists when "the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him or her, or to participate rationally in his or her defense[.]" RCr 8.06. At most, Stacy's arguments regarding his alleged mental impairment have demonstrated there was some evidence he suffered from potentially mitigating psychological issues which may have been relevant during the sentencing phase. These arguments fail for the reasons discussed above.
Stacy's argument trial counsel unreasonably failed to file a suppression motion relies on his allegation the warrant affidavit falsely asserted Klute stated he threatened to harm himself. A defendant claiming defense counsel was ineffective for failing to litigate a Fourth Amendment claim must prove the claim was meritorious and there was a reasonable probability that failing to file a motion to suppress caused actual prejudice. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305 (1986). "To attack a facially sufficient affidavit, it must be shown that (1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause." Commonwealth v. Smith, 898 S.W.2d 496, 503 (Ky. App. 1995). The fatal deficiency in Stacy's argument is he did not articulate how proof of the falsities in the affidavit would negate probable cause in the warrant, or why suppression would have improved his odds at trial sufficiently to affect his decision to plead guilty. "An ineffective assistance of counsel claim cannot be based upon mere speculation." Rigdon, 144 S.W.3d at 291. Stacy's suppression argument was facially deficient and correctly rejected without an evidentiary hearing.
Finally, we find no merit to Stacy's argument trial counsel was objectively unreasonable for failing to disclose their belief about the future legality of the death penalty. Stacy does not cite to any legal authority holding trial counsel's performance is deficient unless he or she discloses her prediction on the future course of the law. Instead, he claims trial counsel's views left no "functional difference" between a LWOP plea and a death sentence. However, the death penalty was, and remains, a valid sentence for Stacy's crimes. Commonwealth v. Guernsey, 501 S.W.3d 884, 888 (Ky. 2016). The difference between a plea guaranteeing life and a verdict promising death need not be belabored further.
Accordingly, the order of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Christine Foster
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky