Opinion
NO. 2016-CA-000135-MR
05-05-2017
MARK WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Aaron Reed Baker 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NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT, JUDGE
ACTION NO. 11-CR-00322 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES. CLAYTON, JUDGE: Mark Williams appeals from an order of the Campbell Circuit Court that denied his Motion to Vacate, Alter or Amend Sentence filed pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. We affirm.
In June 2011, Williams was indicted on one count of Burglary in the First Degree involving the break-in at a residence and theft of several items including a gun removed from a gun safe. The police recovered a specimen of blood from the gun safe. In discovery, the Commonwealth produced a Kentucky State Police Forensic Laboratory Examination identifying Williams as the source of the blood found at the crime scene that matched Williams within a probability of one in 2.6 quintillion based on a DNA analysis. On April 17, 2012, Williams entered a plea of guilty after consulting with his attorney to the charge of Burglary I in exchange for a recommendation by the Commonwealth to a sentence of nineteen years to run concurrently with a conviction in Mason County for Burglary II. Upon request of Williams, the circuit court immediately sentenced him consistent with the Commonwealth's recommendation.
On April 9, 2015, Williams filed an RCr 11.42 motion alleging ineffective assistance of counsel based on defense counsel's alleged failure to inform him of the results of an independent forensic DNA examination of the blood specimen obtained by the defense prior to his guilty plea, which found that the DNA profile consisted of four or more individuals and that Williams could not be excluded as a major contributor. On June 4, 2015, the Commonwealth filed a response to the RCr 11.42 motion. On August 14, 2015, the circuit court entered an order granting Williams an evidentiary hearing on the motion and appointing counsel to represent him.
On October 22, 2015, the circuit court conducted an evidentiary hearing at which Williams and his former trial counsel, Robert Clark, testified. On December 21, 2015, the circuit court entered an order finding that Williams knew the results of the independent DNA analysis and elected to enter a plea of guilty. The court denied the RCr 11.42 motion. This appeal followed.
STANDARD OF REVIEW
The standard of review for ineffective assistance of counsel involves a two-prong test requiring the defendant to show: (1) deficient performance by counsel and (2) resulting prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). With respect to a guilty plea, the standard requires the defendant to establish: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pled guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012) (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2052). An ineffective assistance of counsel claim presents a mixed question of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. A trial court's finding of fact and credibility determinations are subject to deference unless they are clearly erroneous. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). "The test for a clearly erroneous determination is whether that determination is supported by substantial evidence." Id. "Substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence . . . has sufficient probative value to induce conviction in the minds of reasonable men." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal citations and quotations omitted). See also Kentucky Rules of Civil Procedure (CR) 52.01. However, the ultimate determination of whether counsel's performance was deficient and the defendant suffered actual prejudice because of counsel's errors is reviewed de novo. Id. (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)).
ANALYSIS
In his RCr 11.42 motion, Williams alleged that Clark never informed him of any independent DNA testing that was conducted on the blood found at the crime scene. He also stated that the first information he received about the results of the independent lab DNA tests was when he received the documents in his file that Clark gave to him after his conviction. At the RCr 11.42 hearing, Williams provided a different factual scenario testifying that on April 16, 2012, the day before pleading guilty, Clark told him at the jail that he had the results of the independent lab tests and that they were the same as the results from the police lab. Williams stated that the next day at the guilty plea hearing, he asked Clark for a copy of the independent lab's report but Clark said he had left it at his office, but that the results were the same as the police lab's findings. Williams indicated he decided to plead guilty based on Clark's representations.
At the RCr 11.42 hearing, Clark said that he did not recollect the specifics of his representation of Williams, so he testified based on the file and his notes prepared contemporaneously with the events in the case. Clark stated that he met with Williams on April 16, 2012, the day before the scheduled trial, and discussed Williams' agreement to their guilty plea counter-offer to the Commonwealth of an eighteen-year sentence to run concurrent with his prior Mason County conviction. Clark said that on April 16, he spoke with employees at the independent lab, who faxed him a copy of their Forensic Report detailing their DNA analysis and conclusions. Clark testified that on the morning of April 17, he informed Williams that the Commonwealth had agreed to the counter-offer for a plea agreement and discussed the independent lab DNA report with Williams as reflected in an entry in his notes stating "advised client of our analysis." Clark acknowledged that there was a substantial difference between the police lab DNA report and the independent lab report, but noted that even the latter report was not exculpatory by indicating that Williams could not be excluded as a major contributor of the blood specimen.
The circuit court's order denying the RCr 11.42 motion depended on its factual finding that Williams knew the actual results of the independent DNA test prior to deciding to enter a guilty plea. The court noted that Williams changed his version of the facts when he initially stated his attorney failed to inform him at all of the independent lab's results and later at the hearing stated that counsel misinformed him by indicating those results were the same as the police lab results. The court also referenced Clark's notes indicating that he had advised Williams of the analysis of the independent lab test. Clark's acknowledgment of the significant difference between the two DNA reports also conflicts with Williams' claim that he was told they were the same. Regardless of conflicting evidence or the weight of the evidence, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d at 354. Thus, this Court must give deference to the circuit court's determination of the credibility of Williams and Clark, and its weighing the evidence presented at the hearing. Based on a review of the record, we cannot say that the circuit court's findings of fact are clearly erroneous. Accordingly, Williams has failed to demonstrate that counsel's performance was deficient and that he received ineffective assistance of counsel as a matter of law.
For the foregoing reasons, we affirm the order of the Lincoln Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Aaron Reed Baker
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky