Opinion
NO. 2012-CA-000411-MR
2013-10-18
KHALID A. ZAAHIR (A.K.A. RAEMON TERRELL ANDERSON) APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Khalid Zaahir, pro se Kentucky State Penitentiary Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 05-CR-002723
OPINION
AFFIRMING
BEFORE: COMBS, NICKELL AND STUMBO, JUDGES. STUMBO, JUDGE: Khalid Zaahir, a.k.a. Raemon Terrell Anderson, appeals from an Order of the Jefferson Circuit Court denying his motion for RCr 11.42 relief from judgment. Zaahir,pro se, asserts a litany of errors including trial counsel's alleged failure to investigate witnesses, to request exculpatory evidence, and failure to request blood testing. Additionally, Zaahir maintains that his guilty plea was not knowingly and voluntarily made, that prosecutorial misconduct occurred, and that a hearing on the motion was improperly denied. We find no error, and accordingly affirm the Order on appeal.
In September, 2005, the Jefferson County Grand Jury indicted Zaahir on 10 counts of First-Degree Robbery, one count of First-Degree Assault, and one count of being a Second-Degree Persistent Felony Offender. On March 27, 2007, Zaahir entered into a plea agreement with the Commonwealth, acknowledging that he committed 10 thefts while armed with a gun, that he shot Holly Peterson in the abdomen during the course of a robbery, and that he has prior felony convictions. Zaahir completed the plea colloquy, acknowledging that he had completed some college courses, understood that he was waiving various rights including the right to a confront witnesses and appeal the conviction, and understood that he could be sentenced to life in prison.
On May 25, 2006, Zaahir was sentenced to 20 years in prison on each of the 10 First-Degree Robbery counts and one First-Degree Assault count. All counts were run concurrently for a total term of 20 years.
On October 20, 2008, Zaahir filed an RCr 11.42 motion with the Jefferson Circuit Court seeking to have his conviction overturned. Zaahir claimed that his trial counsel improperly failed to allege that Zaahir was suffering from extreme emotional disturbance when he committed the crimes. Zaahir also argued that he was "insane" when he committed the offenses and may still be insane. He moved for the appointment of counsel and an evidentiary hearing on the motion.
Hon. David Harshaw was then appointed to represent Zaahir. Harshaw successfully moved for additional time to investigate Zaahir's claims and to supplement the record. On June 8, 2009, Harshaw supplemented the record, and acknowledged that, "Counsel has found little evidence to support Petitioner's assertion[.]" On November 1, 2011, the trial court rendered an Order denying Zaahir's RCr 11.42 motion. As a basis for the Order, the court determined that Zaahir failed to satisfy either prong of the Strickland test, and otherwise failed to demonstrate that his trial counsel rendered ineffective assistance.
Zaahir later prosecuted an appeal from the denial of his RCr 11.42 motion, which was dismissed as untimely. He was then granted a belated appeal. He again sought appointed counsel. Counsel from the Department of Public Advocacy was appointed, and then successfully moved to withdraw from representation after concluding that the action did not appear to be a proceeding that a reasonable person with adequate means would be willing to bring at his own expense. This pro se appeal then followed.
Zaahir now asserts multiple arguments centering on his trial counsel's alleged ineffectiveness, and he argues that his plea was not knowing and voluntary. Zaahir also contends that the Commonwealth engaged in prosecutorial misconduct, and that he was entitled to an evidentiary hearing on the motion. We must note from the outset that though Zaahir raises a number of interwoven and related arguments, our review is limited to only those issues raised in his RCr 11.42 motion and addressed by the circuit court. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). The first of those issues was Zaahir's contention that the Judgment should be vacated due to his lack of mental capacity at the time of the commission of the charged offenses as well as the time of entry of his plea, and that trial counsel was ineffective for failing to assert these defenses. Second, Zaahir argued that he was entitled to a hearing on the motion. The remainder of the issues now asserted were not raised or addressed below.
Arguendo, even if the remaining issues were raised and addressed below, we would find no error therein. These issues include Zaahir's claim that his trial counsel was ineffective in failing to investigate witnesses, in failing to request exculpatory evidence, in failing to request blood testing, and that the Commonwealth engaged in prosecutorial misconduct. We have examined these issues despite their lack of preservation, and have uncovered nothing in the record or the law to support a reversal of the Order on appeal. Zaahir, for example, does not reveal how additional witnesses would have demonstrated that he was acting under an extreme emotional disturbance or was otherwise incompetent. Zaahir also does not reveal the exculpatory evidence that he claims counsel should have uncovered, and his claim that he may have "B Negative" blood thus evincing a proclivity toward "unusual psychosis" is specious. Finally, Zaahir's unsupported claim that the Commonwealth failed to hand over exculpatory evidence is overly broad and cannot support a claim of entitlement to RCr 11.42 relief.
On the first issue for our consideration, we find no basis for concluding that the Jefferson Circuit Court erred in failing to find that Zaahir's plea was not knowingly and voluntarily entered due to ineffective assistance of counsel. We agree with the Commonwealth's contention that Zaahir does not make a substantive argument justifying entitlement to RCr 11.42 relief on this issue, but rather merely sets forth a plethora of case law quotations and conclusory statements claiming entitlement to relief. Additionally, Zaahir entered into a guilty plea colloquy in open court which carries a strong presumption of verity. Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011). Zaahir stated that he understood he was giving up his right to a jury trial, to confront witnesses, to present evidence, and to appeal his conviction. He also admitted engaging in 10 robberies and that he was armed with a gun during those robberies. Zaahir stated that he committed the robberies for the money, and understood that the 20 year sentence would run consecutively with a separate sentence he was then serving for two other robberies.
To prevail on a claim of ineffective assistance of counsel, an appellant must show two things:
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 the defendant 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, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. (Internal citation omitted).Id. at 691-692. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "The defendant must show that 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 a probability sufficient to undermine confidence in the outcome." Id. at 694.
Zaahir's claim that his plea was not knowing, intelligent and voluntary is based on his contention that his trial counsel was ineffective in failing to assert a defense of insanity or extreme emotional disturbance. In adjudicating Zaahir's RCr 11.42 motion, the Jefferson Circuit Court found that Zaahir did not meet either of the two prongs set out in Strickland, supra. We find no error in that conclusion. The circuit court inquired as to Zaahir's mental state at the time his plea was accepted, and it found that his plea was knowingly, intelligently and voluntarily made. In addition, Zaahir acknowledged in writing that he discussed all defenses available to him with his attorney prior to entering into the plea agreement. Finally, nothing in the record supports Zaahir's contention that he was insane or otherwise mentally incompetent when the plea was entered. His appointed counsel investigated the claim and found it without substantiation, and the record is otherwise devoid of any basis for finding mental incompetence. We find no error.
Zaahir also argues that he was entitled to an evidentiary hearing on the motion, and that the circuit court erred in failing to so rule. A "hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-744 (Ky. 1993). The record refutes Zaahir's claim of entitlement to RCr 11.42 relief, and accordingly we cannot conclude that the Jefferson Circuit Court erred in resolving the motion without the benefit of a hearing.
For the foregoing reasons, we affirm the Order of the Jefferson Circuit Court denying Zaahir's motion for RCr 11.42 relief from Judgment.
ALL CONCUR. BRIEF FOR APPELLANT: Khalid Zaahir, pro se
Kentucky State Penitentiary
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky