Opinion
NO. 2017-CA-000052-MR
05-04-2018
VAUGHN D. BOONE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Vaughn D. Boone, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 13-CR-001316 AND 13-CR-003263 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, NICKELL, AND THOMPSON, JUDGES. NICKELL, JUDGE: Vaughn D. Boone, pro se, appeals from an order entered by the Jefferson Circuit Court on November 16, 2016, denying his request for RCr 11.42 relief without convening an evidentiary hearing. Following a review of the record, the briefs and the law, we affirm.
Kentucky Rules of Criminal Procedure.
Other than in block quotes, Indictment numbers are reflected in this Opinion using the recognized format for the Case Management System. As a result of Boone pleading guilty on October 6, 2015, he is serving the following sentences. In Indictment 13-CR-003263, he was ordered to serve ten years for first-degree robbery; five years for second-degree robbery; and five years for third-degree burglary. The robbery sentences were run consecutively for fifteen years, but concurrently with the burglary sentence for a total of fifteen years to serve. In Indictment 13-CR-001316, Boone is serving ten years for first-degree robbery and five years for third-degree burglary for a total of fifteen years. A prior charge of third-degree criminal mischief was resolved by jury verdict resulting in counsel agreeing Boone would serve 365 days concurrently with the burglary charge. The sentences under these two indictments run concurrently with one another and with a sentence in Indictment 13-CR-000368.
We quote the facts from the trial court's well-reasoned opinion:
In May, 2013, [Boone] was indicted on one count of Robbery in the First Degree, one count of Burglary in the Third Degree, one count of Criminal Mischief in the First Degree and as a Persistent Felony Offender in the First Degree under Indictment 13CR[1316]. In December 2013, [Boone] was indicted on two counts of Robbery in the First Degree and one count of Burglary in the Third Degree under Indictment 13CR3263. The indictments were assigned to two separate courts, and until the day of the plea remained in their respective courts. A trial on Indictment 13CR1316 was held [on July 22, 2014], which resulted in a hung jury on the robbery and burglary counts, and a guilty verdict on a misdemeanor criminal mischief.
On October 6, 2015, Indictment 13CR3263 was called for trial. After extensive discussion, [Boone] entered a plea of guilty to all charges under that indictment, and [sic] well as to the remaining felony charges under Indictment 13CR1316. The PFO charge was dismissed.
[Boone] has now filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to RCr 11.42. [Boone] asserts two grounds for his motion: 1) that counsel was ineffective for instructing that pursuant to a plea agreement [Boone] was eligible for probation when he was not; and 2) that counsel was ineffective for failing to adequately investigate [Boone's] mental capacity, and that had she done so and presented evidence of the mental illness, [Boone] would have been acquitted of robbery charge(s) and the resultant 85% parole eligibility.
In an RCr 11.42 motion, the movant must "establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceedings provided in RCr 11.42." Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). The motion "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." RCr 11.42(2). If the requirements of RCr 11.42 are satisfied, the movant must then establish a claim for ineffective assistance of counsel by proving: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. 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), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). See also Commonwealth v. McKee, 486 S.W.3d 861 (Ky. 2016).
Under Strickland, a "deficient performance" contains errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687, 104 S.Ct. at 2064. In assessing whether counsel's performance was deficient, the court must consider whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Id., 466 U.S. at 687-88, 104 S.Ct. at 2064-65. To establish counsel's deficient performance prejudiced his defense, movant must show "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Both elements of Strickland must be satisfied to merit relief. Id.; McKee, 486 S.W.3d at 867.
When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes counsel's performance was reasonable. Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (citing Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). We must analyze both counsel's overall performance and the totality of circumstances to determine whether the challenged conduct overcomes the strong presumption counsel's performance was reasonable. McKee, 486 S.W.3d at 867. Ultimate determination of whether counsel's performance was deficient and defendant suffered actual prejudice because of counsel's errors is reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)).
Because Boone's RCr 11.42 motion was denied without an evidentiary hearing, our review is limited to whether his motion "on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Fuston v. Commonwealth, 217 S.W.3d 892, 895 (Ky. App. 2007) (citing Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000)).
Boone's first claim is counsel erroneously told him he was eligible for probation. He specifically alleges counsel told him by pleading guilty to first- degree robbery, second-degree burglary and third-degree burglary, for a total sentence of ten years at 85%, counsel could get him probation. He adds, had he known probation was not an option, he would not have pled guilty. The claim is conclusively refuted by the record.
Boone was not charged with second-degree burglary. Indictment 13-CR-003263 charged him only with two counts of first-degree robbery and one count of third-degree burglary.
On October 6, 2015, Boone was to stand trial in Division 12 on two counts of first-degree robbery and one count of third-degree burglary in Indictment 13-CR-003263. Pending at the same time in Division 8, was Indictment 13-CR-001316, charging Boone with one count of first-degree robbery, one count of third-degree burglary, one count of first-degree criminal mischief and being a first-degree persistent felony offender (PFO).
More than a year earlier, on March 12, 2014, the Commonwealth extended an offer to Boone addressing both indictment numbers. The offer read:
[i]n exchange for the defendant's plea of guilty to two counts of Robbery in the First Degree and Burglary in the Third Degree, the Commonwealth would recommend 20 years on each count of Robbery in the First degree [sic] and 5 years on the charge of Burglary in the Third Degree, to run concurrent for a total of 20 years. This case would run concurrent to the previous offer made in case no. 13CR1316.(Emphasis added.) The previous offer made in Indictment 13-CR-001316 on June 26, 2013, read:
The defendant is ineligible for probation.
[i]n exchange for the defendant's plea of guilty to Robbery I, Burglary III, Criminal Mischief I and PFO I, the Commonwealth would recommend 15 years on Robbery I, 5 years on Burglary III and 5 years on Criminal Mischief I. All concurrent for a total of 15 years, enhanced to a total of 20 years by virtue of PFO I. Defendant would agree to pay restitution.(Emphasis added.) Based on the Commonwealth's offers, Boone knew probation was not an option.
The Defendant is ineligible for probation.
During pretrial motions, Boone's attorney stated the Commonwealth's offer on the record and her recommendation that Boone accept the offer. The trial court described the day's proceedings.
A lengthy, on-the-record discussion about the offer ensued. Counsel explained that [Boone] wanted an offer that would allow him to receive probation. Counsel explained that only if [Boone] were acquitted of all charges would there be a result that would allow him to not serve a sentence in prison. Counsel explained that while the Robbery in the First Degree carries an 85% parole eligibility, [Boone] would serve a substantial sentence even if he were only convicted of non-85% charges, by virtue of the fact that he is a persistent felon. Counsel stated multiple times on the record, and the Court confirmed, that any conviction on any robbery charge would lead to a sentence of imprisonment. Counsel stated that the terms of the offer had also been discussed at length on the record in Division 8 as well. The court asked [Boone] if he would like additional time to discuss the offer with his attorney, and [Boone] stated that he would. The Court then recessed to allow further discussions.
When court resumed, counsel for [Boone] stated that [Boone] wished to accept the plea offer. During the colloquy, the Court asked [Boone] if he needed any
additional time and he stated he did not. The plea proceeded. At the close of the plea, the Court asked if separate sentencing was requested, and informed [Boone] that if sentenced at a later date, a presentence investigation would be prepared. The Court again stated that probation was not an option under the plea agreement, and [Boone] asked to go ahead and be sentenced.Boone has neither shown nor alleged he was probation-eligible. He claims only in an off-the-record conversation, counsel led him to believe he was. That allegation is simply not borne out by the facts. The Commonwealth told him he was ineligible in its offer. Counsel told him he was ineligible throughout her representation and recommended he accept the offer. From the bench, the trial court told him repeatedly he was ineligible for probation and recessed court to give him more time to consider accepting the Commonwealth's offer. To Boone, probation was clearly a strong desire, but his past crimes and current charges made him ineligible as the prosecutor, judge and counsel told him. Boone's grim reality was precisely as counsel told him and the trial court confirmed—only acquittal would allow Boone to escape time in prison. Thus, it is disingenuous for Boone to claim counsel misled him to believe probation was an option. The trial court properly denied relief on this claim.
At no time during this lengthy proceeding did [Boone] state that he was confused or did not understand that he was not probation-eligible under the plea offer. In fact, it is apparent from the record that the lack of an opportunity for probation had been a sticking point for over a year. Under no stretch of the imagination can the words of counsel or the Court be deemed to state or even imply that probation was an option if he accepted the plea offer. This contention is more than adequately refuted by the record.
Boone's other claim is counsel inadequately investigated his mental capacity, suggesting a diagnosis of bipolar disorder with psychosis in 2010 could have affected his decisions or ability to understand his case. We discern no error.
In November 2013, in Indictment 13-CR-001316 which was pending in Division 8, counsel sought and received a competency evaluation for Boone. The court received a competency report and convened a hearing on March 10, 2014. According to the report, Boone disclosed no specific psychiatric conditions and was "extremely vague" in discussing his mental health history. It also appeared he was "purposefully exaggerating his mental condition." The evaluator concluded Boone did not lack capacity to stand trial due to mental illness or intellectual disability. Because the Division 8 proceedings were conducted contemporaneously with the Division 12 case, the factual findings and ruling from Division 8 were adopted by Division 12. The competency report revealed no indication Boone suffered from serious mental illness. The trial court concluded, and we agree, Boone's attorney, "adequately addressed the issue of competency in both cases, and that nothing in the report raises a question of criminal responsibility such that reasonably competent counsel would have pursued that option."
The trial court went on to write,
Movant also intimates, under both arguments, that if evidence of his mental illness had been presented to a jury, he would have been acquitted of the more serious charges. It appears that the first time [Boone] raised the prior mental health treatment and supported it with documentation was this motion to vacate. The attached documents relate to an evaluation performed during [Boone's] application for disability benefits, which occurred several years prior to the offense for which he was charged under these indictments and which related to [Boone's] ability to work. [Boone] failed to disclose most of this information to the evaluator who assessed his competency to stand trial, and it was noted in her report that [Boone] was "vague" about his psychiatric history. There is nothing in the record that suggests a basis for [Boone] being found not guilty by reason of insanity, or would have been convicted of lesser offenses subjecting him to less serious punishments, since the evaluation failed to find any evidence or [sic] mental illness or retardation.The Social Security disability hearing Boone chose to reveal for the first time on this RCr 11.42 motion dates back to 2010, well before the two indictments referenced in this appeal were returned against him. Had Boone been more forthcoming with the evaluator during the competency hearing requested for his benefit on Indictments 13-CR-001316 and 13-CR-003263—something completely within his control—the result might have been different. But he chose to be "vague" and the court ruled based upon the information before it. Boone cannot fault his attorney for his decision to withhold information.
Discerning no error in counsel's performance, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Vaughn D. Boone, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky