Opinion
NO. 2012-CA-001668-MR
01-10-2014
EARL LEE CHANLEY, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Earl Lee Chanley, Jr., Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NOS. 10-CR-00031
OPINION
AFFIRMING
BEFORE: CAPERTON, CLAYTON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Earl Lee Chanley, Jr., brings this appeal from an August 21, 2012, Order of the Kenton Circuit Court denying his motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. We affirm.
Chanley was indicted by a Kenton County Grand Jury upon one count of second-degree burglary (Kentucky Revised Statutes (KRS) 511.030) and with being a persistent felony offender in the first degree (KRS 532.080). The charges stemmed from a burglary that occurred near the home of Chanley's father while Chanley was living there. Following a jury trial, Chanley was found guilty upon both indicted offenses and was sentenced to a total of twenty years' imprisonment. Chanley's conviction was affirmed by direct appeal to the Kentucky Supreme Court (Appeal No. 2010-SC-000473-MR). Chanley subsequently filed the instant motion to vacate sentence pursuant to RCr 11.42 alleging ineffective assistance of trial counsel. The circuit court denied the RCr 11.42 motion without an evidentiary hearing by order entered August 21, 2012. This appeal follows.
Chanley contends the circuit court erred by denying his RCr 11.42 motion without an evidentiary hearing. Chanley specifically asserts his trial counsel rendered ineffective assistance, thus entitling him to relief under RCr 11.42. We disagree.
To prevail upon a claim of ineffective assistance of trial counsel, Chanley must demonstrate that trial counsel's performance was deficient and that such deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Prejudice is found to exist where there is a reasonable probability that but for trial counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. 668, Bowling v. Commonwealth, 981 S.W.2d 545 (Ky. 1998). And, it is well-established that a hearing is required upon an RCr 11.42 motion if a material issue of fact exists that cannot be resolved upon the face of the record. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
Chanley specifically contends his trial counsel was ineffective for failing to file a motion to dismiss the indictment against him as "police presented false testimony" to the grand jury. Chanley's Brief at 8. Chanley asserts that Detective Bart Beck testified before the grand jury that a cordless phone from the home of Chanley's father was found inside the victim's home. Chanley points out that the phone was actually discovered inside the window well of a broken basement window and not inside the home. Chanley further asserts that the Commonwealth knew or should have known that Detective Beck's testimony was false.
It is well-established that a court must proceed with extreme caution when scrutinizing grand jury proceedings as a "strong presumption of regularity" attaches to such proceeding. Commonwealth v. Baker, 11 S.W.3d 585, 588 (Ky. App. 2000). The presumption of regularity may be overcome "only if the violation substantially influenced the grand jury's decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations." Id. at 588 (citations omitted). And, it is recognized that a court may exercise its supervisory authority to dismiss an indictment if a "prosecutor knowingly or intentionally presents false, misleading or perjured testimony to the grand jury that results in actual prejudice to the defendant." Id. at 588.
In this case, Chanley complains that Detective Beck falsely testified before the grand jury that the cordless phone from the Chanleys' residence was found inside the victim's home when it was, in fact, found inside a window well. At trial, Detective Beck admitted the error in his previous testimony. However, there is no evidence that the Commonwealth knew or should have known that Detective Beck's jury testimony before the grand jury was false or misleading. See Baker, 11 S.W.3d 585. Chanley simply makes a conclusory allegation regarding the testimony but does not support his allegation with any evidence that the Commonwealth knowingly or intentionally presented false or misleading testimony. Considering the facts, we do not believe that trial counsel was ineffective for failing to move to dismiss the indictment.
Chanley next argues that trial counsel was ineffective for advising the jury during the opening statement at trial that Chanley "had an alibi . . . when in fact he did not." Chanley's Brief at 11. Specifically, Chanley asserts that during the opening statement trial counsel stated Chanley's father would provide an alibi for Chanley. At trial, during Chanley's case-in-chief, Chanley's father testified that when the crime occurred Chanley was at his father's house. Chanley argues that trial counsel was ineffective for introducing testimony that placed Chanley in the vicinity of the crime as Chanley's father lived in close proximity to the victim's home.
A decision by trial counsel to assert a particular argument is considered trial strategy. When analyzing trial counsel's strategy, we afford great discretion, and the burden is on defendant to overcome the presumption that counsel's action "might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted). If a defendant overcomes the presumption that trial counsel's strategy was sound, he must still satisfy the prejudice inquiry of Strickland. Strickland, 466 U.S. 668. Mere speculation that a different strategy may have been more advantageous is insufficient. Hodge v. Commonwealth, 116 S.W.3d 463 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
In this case, Chanley has failed to demonstrate prejudice. At trial, the Commonwealth presented more than sufficient evidence to convict Chanley of the burglary. In particular, police received a report that one of the items stolen from the victim's home came from Chanley. The recipient of the stolen item, McGuire, told police Chanley gave it to her and told her that he had stolen it from a woman's home. There was also testimony that the cordless phone from the Chanleys' residence was discovered in the window well of the basement window used to access the victim's house. Considering the evidence presented at trial, we are of the opinion that the jury's verdict would not have been different absent counsel's remark during opening statement. We, thus, reject this contention.
Chanley also asserts that trial counsel was ineffective for failing to submit a jury instruction upon criminal trespass in the third degree as a lesser included offense to second-degree burglary. Essentially, Chanley argues the jury could have believed he was on the victim's property illegally (as demonstrated by discovery of the cordless phone) but the jury could have possessed reasonable doubt upon whether Chanley entered the dwelling. Thus, Chanley asserts that the evidence presented at trial supported an instruction upon third-degree criminal trespass as a lesser included offense to second-degree burglary.
Burglary in the second degree is codified at KRS 511.030 and provides:
(1) A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.And, criminal trespass in the third degree is codified at KRS 511.080 and provides:
(2) Burglary in the second degree is a Class C felony.
(1) A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.Whether criminal trespass is a lesser included offense of burglary was addressed by the Kentucky Supreme Court in Colwell v. Commonwealth, 37 S.W.3d 721 (Ky. 2000). The Court specifically stated:
(2) Criminal trespass in the third degree is a violation.
[A] lesser included offense is one which "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." KRS 505.020(2)(a). Stated otherwise, if the lesser offense requires proof of a fact not required to prove the greater offense, then the lesser offense is not included in the greater offense, but is simply a separate, unchargedId. at 726-27 (emphasis added).
offense. Commonwealth v. Day, Ky., 983 S.W.2d 505, 509 (1999). To prove guilt of criminal trespass in the third degree, the Commonwealth is required to prove that the defendant entered upon the victim's unimproved land. Proof of that fact is not necessary to convict of any degree of burglary; thus criminal trespass in the third degree is not a lesser included offense of burglary.
"Premises" as used in Kentucky Revised Statutes 511.080 has been interpreted as meaning unimproved land. Colwell v. Commonwealth, 37 S.W.3d 721 (Ky. 2000).
Simply put, our Supreme Court clearly held in Colwell, 37 S.W.3d 721, that criminal trespass in the third degree is not a lesser included offense of burglary. Accordingly, we conclude that Smith's contention that counsel was ineffective for failing to submit a jury instruction upon third-degree criminal trespass as a lesser included offense to burglary in the second degree is without legal merit. See Colwell, 37 S.W.3d 721.
Chanley next argues that trial counsel was ineffective for failing to present the defense that an "alternate perpetrator" committed the burglary. Chanley specifically argues that trial counsel should have presented evidence to demonstrate that McGuire actually committed the burglary.
The Supreme Court of Kentucky recently addressed the admissibility of evidence of an alternate perpetrator in Smith v. Commonwealth, ___ S.W.3d ___ (Ky. 2012). In Smith, the Court stated:
[W]hile a defendant has the right to present exculpatory evidence in his defense, a trial court may exclude that evidence if it tends to show a person as an alternate perpetrator and is speculative, unsupported, or far-fetched and thereby may confuse or mislead a jury. Id. at 207 (citing Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky.1997)). Evidence of an alternateId. at ___. Applying the principles of Smith to this case, Chanley failed to produce any evidence that McGuire had the opportunity to commit the burglary. In the absence of demonstrating both motive and opportunity, we believe Chanley's contention is without merit.
perpetrator showing that he or she had both motive and opportunity is generally admissible. However, "evidence of motive alone is insufficient to guarantee admissibility."
Chanley finally contends that trial counsel was ineffective for failing to object to the trial court's instructions to the jury. Specifically, Chanley asserts that the trial court erroneously advised jurors they could not ask questions of the trial court during deliberations.
In this case, the trial court stated the following before dismissing the jury for deliberation:
If you have any questions, write your questions on a piece of paper, knock on the door, hand your question to the sheriff who'll be stationed outside the door leading to the hallway. If your question calls for additional information or facts, we will not be able to satisfy you. You've heard all of the evidence that you're allowed to hear to make your decision. You have to make your decision on the evidence presented, we can't give you any additional facts or information. If your question is for something other than more information, we again will try to satisfy you, but even then it's not always, uh, possible.Commonwealth's Brief at 15.
Chanley's entire argument on this issue is less than one page and cites no authority for his contention. The trial court merely told jurors that they could ask questions during deliberations but could not ask for "additional information or facts." This statement was a correct recitation of the law, thus, we perceive no error. Therefore, we do not believe trial counsel was ineffective for failing to object to the trial court's instructions to the jury.
In sum, we hold that Chanley was not entitled to an evidentiary hearing as his claims were refuted upon the face of the record and that the circuit court properly denied his RCr 11.42 motion as being without merit.
For the foregoing reasons, the Order of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Earl Lee Chanley, Jr., Pro Se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky