Opinion
NO. 2014-CA-001760-MR
01-13-2017
GARRY SWAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Maureen Sullivan Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 09-CR-00190-003 OPINION
AFFIRMING
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BEFORE: DIXON, J. LAMBERT, AND NICKELL, JUDGES. J. LAMBERT, JUDGE: Garry Swan appeals from the Henderson Circuit Court's order denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 and 10.26 motion seeking to alter, amend, or vacate his conviction for complicity to first-degree robbery. Finding no error, we affirm the trial court's September 5, 2014, order.
Swan is one of four indicted co-defendants involved in an armed robbery of the Fifth Third Bank in Henderson, Kentucky, on September 21, 2009. His wife, Cynthia Swan, was eventually acquitted of all charges. The other two co-defendants, Andrew LeRose and Mickie McGuire, entered guilty pleas and received sentences of twenty-five and ten years respectively. LeRose testified against Swan at his 2010 trial; McGuire, whose trial was scheduled for after that of the Swans, entered his guilty plea subsequent to the Swans' trial. LeRose's sentence was later reduced to twenty years pursuant to Kentucky Revised Statutes (KRS) 532.110(1)(c).
The facts of the robbery's commission are well known to the parties and shall only be recited as is necessary to the understanding of this decision. The parties were en route from Florida to Indiana when they came up with a plan to rob a bank. By all accounts, McGuire executed the actual robbery. Cynthia Swan stayed in a nearby Burger King restaurant. LeRose, although originally agreeing to go into the bank with McGuire, backed out and stayed with Garry Swan, who drove the getaway car. After trial by jury Swan was found guilty of Complicity to Robbery in the First Degree (KRS 532.055) and for being a Persistent Felony Offender in the First Degree (PFO I; KRS 532.080), and was sentenced to twenty-years' imprisonment. By Order dated April 27, 2010, and upon motion of Swan's counsel, Swan was ordered placed in the Department of Corrections Intensive Residential Substance Abuse Treatment Program (IRSAT/SAP) "at [the] earliest convenience."
Swan's conviction was reversed on direct appeal to the Kentucky Supreme Court, that Court finding that the jury instructions were erroneous. Upon remand, and on the advice of newly appointed trial counsel, Swan entered a guilty plea on January 12, 2012, to the charge of Complicity to Robbery in the First Degree. The charge of PFO I was dismissed as part of the plea bargain. Swan was sentenced to thirteen and one-half years' imprisonment.
On May 23, 2013, Swan filed a motion, pursuant to RCr 11.42 and 10.26, to vacate, set aside, or correct his sentence. New counsel was appointed, a supplemental motion was filed on June 5, 2014, and an evidentiary hearing was held on July 23, 2014. The Henderson Circuit Court issued its order denying Swan's motion on September 5, 2014, and this appeal followed.
Strickland v. Washington, 466 U.S. 668 (1984), remains the standard for evaluating ineffective assistance of counsel in our Commonwealth. Its two-prong test requires a movant to demonstrate that trial counsel's performance was deficient and that said deficiency was prejudicial. Id. at 687; accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). In determining whether conviction upon a guilty plea is unsound because of counsel's performance, we are guided by Hill v. Lockhart, 474 U.S. 52, 54 (1985), namely, that "but for counsel's errors, [the appellant] would not have pleaded guilty and would have insisted on going to trial." See also Taylor v. Commonwealth, 724 S.W.2d 223, 226 (Ky. App. 1986). Our review of a trial court's denial of RCr 11.42 motions is whether the denial constituted an abuse of that court's discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). Abuse of discretion is defined as arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
Swan makes four arguments before this Court. His first is couched in terms of double jeopardy: Because the court in Swan's jury trial found that there was insufficient evidence to instruct the jury that Swan acted as principal under Robbery I, Swan argues that his later retrial as complicitor on that same count violated his protections against double jeopardy. Therefore, Swan insists, his attorney's advice to Swan to plead guilty to Complicity to Commit Robbery I constituted ineffective assistance of counsel.
We disagree. In its reversal of Swan's conviction for faulty jury instructions, the Kentucky Supreme Court dissected the trial court's determination that there was insufficient evidence to warrant an instruction that Swan had acted as principal in the commission of the robbery. The high Court found that complicity was an alternative theory to Swan's guilt, and that the error occurred, not in offering instructions for Complicity to Robbery in the First Degree, but rather in the wording that allowed the possibility of conviction for the lesser included offense of simple theft, not robbery. The Kentucky Supreme Court held:
However, we disagree with Appellant that the only solution to this error is a separate definition of complicity. . . . It is perfectly acceptable, particularly in a case such as this where the evidence only supported conviction through a theory of complicity, to integrate the definition of complicity into the jury instruction for the offense.
There would have been no error had Part D of Instruction No. 2 read, "That the Defendant, Garry Swan, with the intention of promoting or facilitating the commission of the offense, solicited or engaged in a conspiracy with Mickie McGuire to commit the offense and/or aided or attempted to aid Mickie McGuire in planning or committing the offense." The instructional error was in not requiring the jury to find that Appellant intended that McGuire use or threaten the immediate use of physical force upon the victim. There is no error in integrating a proper complicity instruction, as opposed to providing a separate definition of complicity. Either approach can be proper.Swan v. Commonwealth, No. 2010-SC-000424-MR, 2011 WL 2438379, *4 (Ky. June 16, 2011).
Had the Supreme Court considered the erroneous instruction to have precluded retrial on the offense of Complicity to Commit Robbery I or Robbery II it would have held so. Instead it merely found that the instruction might have permitted conviction for a higher offense without requiring the jury to find that Swan's involvement aided or abetted McGuire's use or threat of use of physical force during the robbery's commission. The trial court did not direct a verdict on the complicity charges, merely on the alternate theory that Swan acted as principal. Therefore, there being no double jeopardy violation, Swan's counsel's advice on retrial to plead guilty to Complicity to Robbery I in exchange for dismissal of the PFO I charge (for which there was more than ample proof, and which Swan has never contended otherwise) was not ineffective in that regard. Strickland, supra; Hill v. Lockhart, supra. See also Smith v. Commonwealth, 370 S.W.3d 871 (Ky. 2012). The facts and procedural history in Cozzolino v. Commonwealth, 395 S.W.3d 485 (Ky. App. 2013), are dissimilar to this case and thus not persuasive.
Swan secondly argues that trial counsel provided ineffective assistance of counsel for failing to disclose the sentences received by co-defendants LeRose and McGuire. In this vein Swan contends that it was essential for him to know his co-defendants' sentences in order to impeach their testimony, should he have opted for jury trial upon remand, or as an effective bargaining tool in the guilty plea process. We find this argument disingenuous at best. LeRose and McGuire were sentenced in 2010, shortly after Swan was convicted and sentenced. It defies credibility for this Court to believe that Swan was unaware of either of his co-defendant's sentences prior to his scheduled second trial. Furthermore, Swan admitted (as evidenced during cross-examination of LeRose at Swan's first trial and again with Swan's direct testimony at the RCr 11.42 evidentiary hearing) that he knew of his co-defendants' sentences.
Even had his second trial counsel neglected to inform him of the outcomes of LeRose and McGuire, we cannot hold that the omission was dispositive in the decision to plead guilty on remand. The evidence of Swan's participation in the planning of the robbery was overwhelming; there is little or no doubt that, given the proper instructions, the jury on the second trial would have held differently than that in the first. Second trial counsel's alleged deficient performance in this regard would not have affected the outcome. Hill v. Lockhart, supra.
Swan thirdly argues that the trial court erred in not finding that trial counsel was deficient for failing to provide him a copy of the discovery prior to entering his guilty plea. Again we are not convinced. The record indicates that the Commonwealth Attorney intended to introduce essentially the same evidence as that during the first trial. Swan was an active participant in that trial, and the record indicates that he had in fact received copies of everything post-conviction while awaiting direct appeal. Furthermore, as the Supreme Court stated in its decision to reverse and remand, "[t]his error, if it was error, is unlikely to recur on remand. Appellant is highly unlikely to suffer prejudice from unfair surprise if LeRose offers the same testimony upon retrial. Therefore the issue is moot." We see no error in this regard. Swan v. Commonwealth, 2011 WL 2438379, at *3-4.
Swan's final argument is that his trial counsel appointed after the remand inadequately apprised Swan of the "facts and law" pertaining to his case. This a vague and cumulative argument, and we decline to address it. Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).
Finding no error, we affirm the Henderson Circuit Court's September 5, 2014, order denying Swan's RCr 11.42 and 10.26 motion for post-conviction relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Maureen Sullivan
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky