Opinion
NO. 2018-CA-000894-MR
09-20-2019
JOHN CALVIN BUCKLEY IV APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Daniel J. Canon Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 10-CR-00930 OPINION
AFFIRMING
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BEFORE: GOODWINE, NICKELL, AND SPALDING, JUDGES. GOODWINE, JUDGE: John Calvin Buckley IV appeals from a Fayette Circuit Court order denying his motion for relief pursuant to CR 60.02 and RCr 11.42. His arguments on appeal pertain only to ineffective assistance of counsel pursuant to RCr 11.42. After careful review, finding no error, we affirm.
Kentucky Rules of Civil Procedure.
Kentucky Rules of Criminal Procedure.
BACKGROUND
Prior to Buckley's indictment on multiple charges involving the victim, he had an ongoing relationship with her until the day prior to the offenses. The victim accused Buckley of forcibly compelling her to participate in sexual acts on or about May 29, 2010. On July 26, 2010, Buckley was indicted on the following: (1) one count of first-degree rape, (2) two counts of first-degree sodomy, (3) one count of fourth-degree assault, and (4) one count of second-degree unlawful imprisonment.
Kentucky Revised Statutes (KRS) 510.040 (Class A felony).
KRS 510.070 (Class B felony).
KRS 508.030 (Class A misdemeanor).
KRS 509.030 (Class A misdemeanor).
At a pretrial hearing, the court heard argument on the Commonwealth's notice of intent to introduce evidence pursuant to KRE 404(b) and motion in limine. By order entered July 9, 2012, the trial court granted, in part, and denied, in part, the Commonwealth's KRE 404(b) notice and granted the Commonwealth's motion in limine. Specifically, the trial court permitted testimony pursuant to KRE 404(b) regarding Buckley's military training and combat, testimony that Buckley possessed guns that he kept loaded in his bedroom closet, and that he kept a handgun in a safe by his bed. The trial court prohibited testimony regarding Buckley's prior fights and assault charges and testimony regarding specific instances of the victim's conduct. The trial court also prohibited any reference to Buckley's charge for wanton endangerment arising from an incident with a police officer.
Kentucky Rules of Evidence.
Buckley's case proceeded to trial on July 10-12, 2012, and the jury found him guilty on all counts. He absconded before the sentencing phase of his trial and was found approximately one year later in Wyoming. After being returned to Kentucky, Buckley pled guilty to first-degree bail jumping and tampering with a prisoner monitoring device. On September 19, 2013, Buckley was sentenced to a total of thirty-four years of imprisonment.
KRS 520.070 (Class D felony).
KRS 519.070 (Class D felony).
Buckley then appealed as a matter of right. The Supreme Court of Kentucky affirmed his conviction. Buckley v. Commonwealth, 2013-SC-000749-MR, 2015 WL 2339921 (Ky. May 14, 2015).
On January 12, 2016, Buckley filed a pro se motion for relief from judgment and conviction pursuant to CR 60.02(f), a motion for appointment of counsel, and a motion to proceed in forma pauperis. The trial court denied Buckley's motion for appointment of counsel and granted his motion to proceed in forma pauperis, in part, and ordered him to pay a $25.00 filing fee. Buckley then retained private counsel who filed a motion to vacate, set aside, or correct judgment and sentence pursuant to RCr 11.42 and supplement to the CR 60.02 motion. The Commonwealth filed a supplemental response. The trial court denied Buckley's motion by order entered May 30, 2018. This appeal followed.
On appeal, Buckley argues (1) counsel failed to adequately present a defense regarding his history of alternative sexual practices with the victim; (2) counsel failed to move to suppress evidence and statements that were unduly prejudicial; (3) counsel failed to investigate and prepare for trial and raise procedural objections; (4) counsel failed to provide mitigating evidence during the sentencing phase of trial; (5) cumulative error; and (6) he was entitled to an evidentiary hearing.
STANDARD OF REVIEW
"[W]e apply the de novo standard when reviewing counsel's performance under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984)]." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citation omitted). To succeed on a claim of ineffective assistance of counsel pursuant to RCr 11.42, a movant must fulfill two requirements:
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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As such, the trial court's inquiry is whether "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, 104 S.Ct. at 2068.
ANALYSIS
First, Buckley argues counsel failed to adequately present a defense regarding his history of alternative sexual practices with the victim. More specifically, he takes issue with counsel's failure to prepare video clips of his previous sexual encounters with the victim and failure to, at a minimum, review clips selected by the Commonwealth before they were played at trial. Buckley raised a similar issue on direct appeal, and our Supreme Court held a video depicting a sexual encounter between Buckley, the victim, and another woman was inadmissible.
Buckley's current argument is conclusory and baseless. Although Buckley alleges counsel's failure to prepare its own clips or review the Commonwealth's clips before they were played at trial was prejudicial, he fails to explain how the result of the trial would have differed had counsel done so. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Although he "is obviously dissatisfied with the trial court's decision, threadbare recitals of the elements of a legal theory, supported by mere conclusory statements, form an insufficient basis upon which this Court can grant relief." Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018). Aside from reciting the facts of his case and citing a case regarding trial strategy, Buckley advances nothing of substance in support of his contention. We will not scour the record to construct Buckley's argument, "nor will we venture to find support for his underdeveloped arguments." Prescott v. Commonwealth, 572 S.W.3d 913, 924 (Ky. App. 2019).
Buckley also argues that counsel failed to adequately present a defense by failing to retain an expert witness in the field of alternative sexual practices to explain the dynamics of his sadomasochistic relationship with the victim. Again, Buckley's argument is conclusory. The trial court's order points out that Buckley failed to show "how this would have affected the result of the trial. Even if an expert were obtained and had testified as to Buckley's sexual proclivities, such expert could not have testified as to whether the victim in this case consented or that Buckley's actions concerning the rape were otherwise lawful." R. at 861. Buckley again fails to meet the Strickland standard, and we decline to attempt to construct his argument for him. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Prescott, 572 S.W.3d at 924.
Second, Buckley argues counsel failed to move to suppress evidence and statements that were unduly prejudicial. Specifically, he argues counsel failed to move to suppress evidence that he owned guns, the emergency response unit (ERU) arrest video, testimony regarding his military service, and testimony that he had multiple sexual partners. He argues such evidence was irrelevant or was unduly prejudicial under KRE 401.
Buckley raised three of these issues on direct appeal, and the Supreme Court of Kentucky found no reversible error. Buckley, 2015 WL 2339921 at *1. There, Buckley argued that the evidence was inadmissible under KRE 404(b) because the evidence was irrelevant pursuant to KRE 401. Id. at *6. Our Supreme Court held the trial court's admittance of evidence of Buckley's guns was harmless error, held the admittance of the ERU arrest video did not constitute palpable error, and held the trial court did not abuse its discretion in admitting testimony regarding Buckley's military service. Id. at *6-*8.
Buckley "cannot raise issues which were raised and decided on direct appeal" again in his RCr 11.42 proceeding. Wilson v. Commonwealth, 975 S.W.2d 901, 903 (Ky. 1998). "It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues . . . that were raised in the trial court" and addressed on direct appeal. Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972). Because our Supreme Court addressed these issues on direct appeal, the law of the case stands, and Buckley cannot raise these issues again. Id.
Buckley also argues counsel failed to object to testimony regarding his multiple sexual partners. We note that the Supreme Court of Kentucky did not address this issue on direct appeal. Buckley asserts that testimony regarding his multiple sexual partners was irrelevant under KRE 401 and that he was unduly prejudiced pursuant to KRE 403 because the jury was not allowed to know that the victim also had multiple sexual partners. Again, Buckley fails to articulate how the result of his trial would have differed had his counsel objected to this testimony and the court excluded it. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. As such, we decline to construct Buckley's argument for him and decline to address this argument. See Prescott, 572 S.W.3d at 924.
Third, Buckley argues counsel failed to investigate and prepare for trial and failed to raise procedural objections. More specifically, he argues that counsel should have requested a continuance prior to trial to adequately prepare. He asserts counsel failed to call any fact witness and adequately prepare Buckley himself for trial. Buckley fails to identify what witnesses counsel should have called to testify in his defense and does not state what counsel should have done to prepare Buckley for trial. "[T]o be entitled to relief under RCr 11.42, the movant must 'state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds.'" Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (quoting RCr 11.42). Buckley's argument is conclusory and fails to "meet the rule's specificity standard." Id.
Buckley further argues he was prejudiced by counsel's failure to use peremptory strikes to remove two jurors. "Counsel's decisions during voir dire are generally considered to be matters of trial strategy." Hodge v. Commonwealth, 17 S.W.3d 824, 837 (Ky. 2000). The Supreme Court's opinion affirming the trial court's judgment points out that "he used his peremptory strikes on another juror 'for reasons determined to be necessary' and, but for the exhaustion of his peremptory strikes, would have removed" one of the jurors. Buckley, 2015 WL 2339921, at *11. Buckley has not proven that counsel's decision was not strategic and does not demonstrate how the result of his trial would have differed had counsel removed these two jurors via peremptory strikes. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. As such, we decline to construct Buckley's argument for him and decline to delve further into this argument. See Prescott, 572 S.W.3d at 924.
Fourth, Buckley argues counsel was deficient in failing to provide mitigating evidence during the sentencing phase of the trial. He argues that treating physicians, expert witnesses, and personal friends should have been called to testify on his behalf. The Commonwealth points out that "Buckley failed to identify these witnesses . . . or to provide sufficiently detailed substance to their testimony, as required by RCr 11.42." Again, Buckley fails to "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." Roach, 384 S.W.3d at 140 (quoting RCr 11.42). Buckley's argument is conclusory and fails to "meet the rule's specificity standard." Id. Furthermore, Buckley fails to allege how the result of the trial would have differed had counsel presented mitigation evidence. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. As such, we decline to construct Buckley's argument for him and decline to further address this argument. See Prescott, 572 S.W.3d at 924.
Fifth, Buckley argues that these alleged errors amount to cumulative error. "'We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial.' If the errors have not 'individually raised any real question of prejudice,' then cumulative error is not implicated." Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012) (quoting Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)). "[T]he absence of prejudice plus the absence of prejudice" cannot add up to prejudice. Id. Having found no prejudice in the issues addressed above, we cannot say that the alleged errors amount to cumulative error.
Finally, Buckley argues he was entitled to an evidentiary hearing. A "trial court must conduct an evidentiary hearing 'if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record.'" Knuckles v. Commonwealth, 421 S.W.3d 399, 401 (Ky. App. 2014) (quoting Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001) (citing RCr 11.42(5)). We agree with the trial court that "Buckley's claims can be resolved by examination of the record." R. at 863. Thus, the trial court correctly concluded an evidentiary hearing was unnecessary.
CONCLUSION
For the foregoing reasons, we affirm the order of the Fayette Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Daniel J. Canon
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky