Opinion
NO. 2016-CA-001909-MR
02-02-2018
STANLEY STOKES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: William F. McGee, Jr. Smithland, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 05-CR-00496 OPINION
AFFIRMING
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BEFORE: COMBS, J. LAMBERT, AND NICKELL, JUDGES. LAMBERT, J., JUDGE: Stanley Stokes appeals from the McCracken Circuit Court order denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief. We affirm.
Stokes was convicted of one count each of sodomy in the first and second degrees, and he was sentenced to a total of thirty years' imprisonment. Kentucky Revised Statutes (KRS) 510.070 and 510.080, respectively. His conviction was upheld on direct appeal in Stokes v. Com., 275 S.W.3d 185 (Ky. 2008). On October 17, 2016, Stokes filed a verified motion for RCr 11.42 relief, alleging that he received ineffective assistance of trial counsel because he was not informed of his right to compel the testimony of his medical doctor. Stokes also requested an evidentiary hearing. Following the Commonwealth's response, the McCracken Circuit Court, without holding an evidentiary hearing, entered its order denying Stokes's requested relief. Stokes appeals from that order.
The facts underlying the convictions are repeated from the Kentucky Supreme Court's opinion on direct appeal, namely:
Appellant's son, Kevin Stokes, and his wife, Tracey, had custody of the minor child involved in this case, H. B., a twelve-year-old girl who was Tracey's adopted sister. On September 3, 2005, Kevin took H. B., her older sister, and his biological daughter to visit Appellant at his home. While the other two girls mowed the lawn, H. B. gave Appellant's dog a bath. Kevin and a friend, Ronnie Gibson, were working on a scooter in the garage, and Appellant was with them. Appellant later followed H. B. into the house and did not immediately come back out. Kevin then looked through a window to see where they were, and he testified at trial that he saw H. B. sitting in a chair with Appellant standing in front of her. Kevin opened the door and asked what was going on, at which time Appellant jumped back and Kevin saw Appellant pull his penis out of H. B.'s mouth. Appellant claimed that he was merely hugging the child, and indicated that it could be nothing more because he suffered from erectile dysfunction. When H. B. confirmed what Kevin had seen, Kevin beat Appellant,
until Appellant nodded that he had acted as the child claimed, and Gibson dragged Kevin off Appellant.Id. at 186-87. On appeal, Stokes claims that he was not aware that he could have compelled the testimony of a physician rather than simply introduce his medical records. Trial counsel (who is now deceased) was ineffective, according to Stokes, for not explaining that to him. According to Stokes, a physician's testimony would have bolstered the defense that Stokes was physically unable to attain an erection and could therefore not have been guilty of the charged offenses. Stokes contends that the McCracken Circuit Court erred in denying the requested relief without holding an evidentiary hearing.
H. B. claimed that Appellant had made her perform sex acts three or four times previously, and that the first time he had slapped her and threatened to force her if she did not do as he demanded. She claimed that Appellant held a knife to her throat and told her that if she told anyone, he would kill her and jeopardize her family. Further, she testified that Appellant did have an erection during the July incident.
Consequently, Appellant was charged with one count of first-degree sodomy and one count of second-degree sodomy. At trial, Kevin, H. B. and Gibson testified to the above events. Appellant testified in his own behalf, and raised as his defense that he could not get an erection due to impotence, and placed into evidence his medical records concerning this health problem, which indicated that he had been seeing a urologist for this condition off and on since 1994. Those records indicated that no physical cause for Appellant's dysfunction could be found, and that the doctor thought the problem was probably "psychogenic." The records also indicated that, on occasion, Appellant was able to function sexually. Appellant, however, claimed that by 1996, he could not achieve an erection at all.
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) (emphasis ours); 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). Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "[T]he threshold issue is not whether [appellant]'s attorney was inadequate; rather, it is whether he was so manifestly ineffective that defeat was snatched from the hands of probable victory." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (emphasis ours).
Even if we were to agree with Stokes that his trial counsel was ineffective, he has failed to establish that he was prejudiced by counsel's ineffective assistance. The trial court considered these arguments in its analysis, with which we agree and set forth:
The record indicates that the Defendant introduced his certified medical records into evidence at his trial. Those records were used to bolster his defense of impotence. The records indicated that the problem was not physical, but likely psychogenic, maintaining that he could still sexually function on occasion. Therefore, even if Defendant's counsel failed to advise him of his constitutional rights, his performance did not prejudice the Defendant. Decisions relating to witness selection are normally left to counsel's judgment, and this judgment will not be second guessed by hindsight. [Footnote citation to Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir. 1998) as cited by Foley v. Com., 17 S.W.3d 878, 886 (Ky. 2000).] Further, the Defendant has failed to state what proof a medical doctor would have presented or if that proof would have differed in any way from his certified medical records. He offers no proof of what their testimony would have been and fails to explain how the verdict would have changed. RCr 11.42(2) places an obligation on the party seeking post-conviction relief to produce specific facts supporting his motion and mere allegations do not meet that burden. [Footnote citation to Sanborn v. Com., 975 S.W.2d 905, 909 (Ky. 1998).]
The record is clear that the Defendant was able to introduce his certified medical records in support of his defense at trial. Conclus[o]ry allegations which are not supported by specific facts do not justify an evidentiary hearing. [Id.] Because the record conclusively resolves all issues, there is no need for an evidentiary hearing. [Footnote citation to Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001).]
We also agree with the circuit court regarding the motion being filed beyond the three-year limitation period. RCr 11.42(10). Stokes has failed in his burden of proving any of the exceptions of that rule. "[T]he elements under RCr 11.42(10) required to toll the statute simply have not been met. No new facts upon which the claim is predicated have been discovered by Appellant, nor has a fundamental constitutional right been established." Bush v. Com., 236 S.W.3d 621, 623 (Ky. App. 2007).
Nor was Stokes entitled to a hearing on his motion:
[A] hearing is required only if there is an issue of fact which cannot be determined on the face of the record. If there is no hearing, then no findings are required . . . . [T]he record refutes the specific claims which are the bases of appellant's contentions that he should have had a hearing and findings.Stanford v. Com., 854 S.W.2d 742, 743-44 (Ky. 1993).
Having found no error, the order of the McCracken Circuit Court denying Stokes's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: William F. McGee, Jr.
Smithland, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky