Opinion
NO. 2012-CA-000504-MR
05-09-2014
GEORGE L. TERRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Christine Foster Assistant Public Advocates Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 06-CR-01722
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. NICKELL, JUDGE: George L. Terry has appealed from the Fayette Circuit Court's denial of his RCr 11.42 motion for post-conviction relief. He contends the trial court erred in denying the motion without first convening an evidentiary hearing to resolve his allegations of ineffectiveness of his trial counsel which he believes were not refuted on the face of the record. Following a careful review, we reverse and remand for further proceedings.
Kentucky Rules of Criminal Procedure.
Terry entered a guilty plea to murder and tampering with physical evidence following the shooting death of Craig Pettit. He was sentenced on March 26, 2008, to an aggregate term of twenty-six years' imprisonment. Just under three years later, on March 25, 2011, Terry filed a pro se motion for postconviction relief pursuant to RCr 11.42 raising four allegations of ineffectiveness of his trial counsel. In a supplemental filing tendered by appointed counsel in August of 2011, three of the original claims were withdrawn, the fourth was expanded, and one new allegation was advanced. Terry claimed his counsel failed to advise him on the defense theory of imperfect self-defense and misadvised him regarding the admissibility of his juvenile criminal record. He alleged that absent these errors he would not have pled guilty but would have insisted on going to trial. Without convening an evidentiary hearing, the trial court denied Terry's motion by order entered on February 29, 2012. This appeal followed.
Kentucky Revised Statutes (KRS) 507.020, a Capital offense.
KRS 524.100, a Class D felony.
Terry now contends the trial court erred in denying his motion for relief without the benefit of an evidentiary hearing. He contends the alleged failures of his trial counsel cannot be refuted on the face of the record, thereby requiring a hearing to determine the veracity of his claims. On appeal, he advances the same claims of ineffectiveness of trial counsel he presented to the trial court.
Prior to considering the arguments presented, we note first that we review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As established in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel: 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). 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 toId. at 411-12. Additionally, we note that the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances, counsel's action "might have been considered sound trial strategy." Strickland, 466 U.S. at 689.
undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.
On the issue of whether an evidentiary hearing is necessary, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), is controlling. Under Fraser, Terry is only entitled to an evidentiary hearing if there are allegations that cannot be conclusively resolved on the face of the record. In determining whether the allegations in a post-trial motion to vacate, set aside or correct sentence can be resolved on the face of the record, the trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Id. at 452-53. Where the trial court has denied an RCr 11.42 motion without a hearing, a reviewing court's review is confined 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. See Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000) (citing Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)). We review the arguments of the parties with these standards in mind.
A review of the record reveals the trial court relied heavily on Terry's entry of a guilty plea and the ensuing plea colloquy in support of its decision to deny Terry's request for relief. The trial court further discounted Terry's sworn affidavit which set forth supporting statements for his allegations of counsel's ineffectiveness, finding such was insufficient evidentiary support to warrant relief. Additionally, the trial court concluded Terry's allegations were inconsistent and generally not credible as trial counsel were "experienced criminal defense attorneys."
The trial court noted the record was devoid of evidence supportive of Terry's claims apart from the affidavit filed with his post-conviction motion. However, additional evidence was cited by Terry in support of his arguments regarding verbal conversations between himself and his counsel that could not possibly be refuted by the written record. Terry's claims are centered on conversations he allegedly had with counsel outside open court, off the record, and likely in confidence. Thus, his claims clearly could not be refuted by examination of the four corners of the record, and the trial court was not free to simply disbelieve the allegations. Fraser, 59 S.W.3d at 452-53. Due to the lack of information on the face of the record, we believe the trial court should have conducted an evidentiary hearing before denying Terry's motion.
In the absence of any record which would definitively refute Terry's claims, RCr 11.42 requires an evidentiary hearing. Thus, we must conclude the trial court abused its discretion when it failed to hold such an evidentiary hearing on Terry's claims of ineffective assistance of counsel. We note, however, that this opinion in no way addresses the merits of those claims. We leave the issue of the validity of Terry's substantive claims to the wisdom and discretion of the trial court. We are confident the trial court, upon convening the hearing we have determined is required and with the benefit of a further developed record, will reach the appropriate decision regarding Terry's claims against his trial counsel.
Therefore, for the foregoing reasons, the judgment of the Fayette Circuit Court is reversed and remanded for further proceedings consistent with this Opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Christine Foster
Assistant Public Advocates
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky