Opinion
NO. 2017-CA-001452-MR
01-11-2019
PHARO WILSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Euva D. Blandford LaGrange, Kentucky Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 12-CR-00765 OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND MAZE, JUDGES. GOODWINE, JUDGE: Pharo Wilson appeals from a Kenton Circuit Court order denying his motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Wilson raised ten claims of ineffective assistance of counsel before the trial court. He raises only one issue on appeal, failure of the trial court to hold an evidentiary hearing on his ineffective assistance of counsel claim with respect to his defense counsel not presenting mitigation evidence during the penalty phase of his trial. Having reviewed the parties' briefs, the record, and applicable law, we affirm.
Wilson was charged under two separate indictments. First, he was charged with three counts of attempted murder, one count of first-degree assault, three counts of third-degree assault, possession of a handgun by a convicted felon, and of being a persistent felony offender in the second degree. He was later charged with first-degree robbery. He was convicted of three counts of attempted murder and second-degree persistent felony offender. The jury recommended a sixty (60) year sentence. He was acquitted on the robbery charge. In a second bifurcated trial, Wilson was also found guilty of being a felon in possession of a handgun and was sentenced to ten (10) years, to run consecutively for a total of seventy (70) years.
BACKGROUND
On September 28, 2012, several Covington police officers responded to an armed robbery. The 911 caller identified the robber as Wilson. The officers searched the area and approached an apartment in which Wilson's girlfriend's mother resided. While some officers approached the front door, to which they had been given a key, others watched the rear of the building and saw Wilson apparently about to climb out of the second-story window. Officers shouted for Wilson to show them his hands, but instead he pulled out a handgun and began firing at the officers in the open yard. The officers returned fire, and the officers who had been at the front of the building went around to assist them. One officer was shot in his right foot. Wilson retreated into the apartment and escaped through the front door. The officers chased him into the woods but terminated their pursuit before apprehending him for reasons of safety. Wilson was arrested several days later in Cincinnati, Ohio.
Wilson was indicted and charged with three counts of attempted murder, one count of first-degree assault, three counts of third-degree assault, possession of a handgun by a convicted felon, and of being a persistent felony offender in the second degree. In a separate indictment, Wilson was later charged with one count of first-degree robbery.
A Kenton Circuit Court jury found Wilson guilty of three counts of attempted murder, acquitted him of first-degree robbery, and found him to be a persistent felony offender in the second degree. Later, in a bifurcated trial, he was found guilty of being a felon in possession of a handgun. He was sentenced to a total of seventy (70) years' imprisonment. Wilson's convictions and sentences were affirmed on direct appeal. Wilson v. Commonwealth, No. 2014-SC-00392-MR, 2015 WL 5655524 (Ky. Sept. 24, 2015).
Wilson filed a motion to vacate judgment pursuant to RCr 11.42 and RCr 10.26 alleging ineffective assistance of counsel based upon ten (10) different issues. He requested to proceed in forma pauperis, the appointment of counsel and an evidentiary hearing. The trial court granted Wilson's motion to proceed in forma pauperis and denied his motion for appointment of counsel. He proceeded pro se. The Commonwealth filed a response and Wilson a reply. The trial court entered an opinion and order denying the RCr 11.42 motion without a hearing. This appeal followed.
On appeal, Wilson raises only one issue; that his trial counsel was ineffective for failing to call mitigating witnesses during the penalty phase of his trial.
STANDARD OF REVIEW
The standards which measure ineffective assistance of counsel have been set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). To be ineffective, the performance of defense counsel must be below the objective standard of reasonableness and so prejudicial as to deprive a defendant of a fair trial and a reasonable result. Strickland, supra. It must be demonstrated that, absent errors by trial counsel, there is a reasonable probability that the jury would have reached a different result. Norton v. Commonwealth, 63 S.W.3d 175 (Ky. 2001).
"[B]oth parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact, [but] the reviewing court must defer to the determination of facts and credibility made by the trial court." Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986)). "Ultimately however, if the findings of the trial judge are clearly erroneous, the reviewing court may set aside those fact determinations." Id. (citing Kentucky Rules of Civil Procedure (CR) 52.01). The final review regarding whether counsel's performance was deficient and the defendant suffered prejudice as a result is made de novo by the appellate court. Id. (citations omitted).
ANALYSIS
Wilson argues that trial counsel was ineffective for failing to call mitigating witnesses during the penalty phase of the trial. Wilson contends that during the penalty phase, trial counsel failed to put on evidence of his family history, the role that abuse played in his life, that he suffers from EED and other related psychological ailments that played a major role in his actions. Wilson failed to name any potential witnesses in his RCr 11.42 motion. However, in his reply to the Commonwealth's response, Wilson argued that three additional witnesses should have been called to testify as to the emotional trauma he had experienced leading up to the events of September 28, 2012: his cousin, Kerteris Glover; his mother, Sharon Wilson; and his girlfriend, Keyairow Green.
Mitigating evidence is evidence which tends to lessen the severity of punishment and is usually introduced during the penalty phase of a trial. It usually includes evidence about a defendant's upbringing, life experiences, age, and education, or whatever other evidence trial counsel strategically chooses to introduce. Trial counsel called Wilson's father to testify during the penalty phase, who testified about his son's childhood, educational and athletic accomplishments, and his hope that his son could still have a bright future. He asked the jury to return a lesser sentence.
Considering Wilson's claim that trial counsel was ineffective for failing to call additional witnesses in mitigation during the penalty phase of trial, Kentucky's Supreme Court in Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001), outlined the three-part analysis that a trial court should conduct in determining whether then movant is entitled to a hearing.
First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. If the choice was not tactical and the performance was
deficient, then it must be determined whether there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.Id. at 344 (emphasis in original) (citation omitted).
Upon review of the record, trial counsel called a witness in mitigation, Wilson's father. This cannot be considered ineffective assistance. Trial counsel's decision to call only one witness during the penalty phase was a reasonable tactical decision which must be given a strong presumption of correctness. Id. It is clear from this evidence that trial counsel conducted a reasonable investigation, uncovered mitigating evidence and presented that evidence to the jury during the penalty phase of the trial.
The jury was instructed on sentences to be imposed of not less than 10 years nor more than 20 years on each of the three counts of criminal attempt to commit murder. The jury recommended a sentence of 15 years on each count, neither the minimum nor the maximum allowable sentence. After finding Wilson guilty of being a persistent felony offender in the second degree, the jury recommended the minimum sentence of 20 years on each count. Wilson was facing 20 to 50 years or life on each count. Thus, Wilson's argument of lack of mitigating evidence is without merit. His alleged errors of ineffective assistance of counsel are refuted from the record and no evidentiary hearing is required. Hodge at 342.
CONCLUSION
For the foregoing reasons, the order of the Kenton Circuit Court denying Wilson's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Euva D. Blandford
LaGrange, Kentucky Julia K. Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky