Opinion
NO. 2016-CA-001126-MR
05-04-2018
CHRISTOPHER JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christopher Johnson, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 11-CR-002918-002 OPINION
AFFIRMING
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BEFORE: CLAYTON, JOHNSON, AND NICKELL, JUDGES. NICKELL, JUDGE: A jury convicted Christopher Johnson of first-degree robbery, sentencing him to serve twenty years, enhanced to thirty-three years by virtue of being a first-degree persistent felony offender (PFO I). The Jefferson Circuit Court imposed the sentence which was consistent with the jury's recommendation and the conviction was affirmed by the Supreme Court of Kentucky on direct appeal. Johnson now appeals denial of an RCr 11.42 motion without benefit of an evidentiary hearing. Johnson primarily alleges counsel coerced him into rejecting the Commonwealth's offer on a guilty plea. Before trial, the Commonwealth had offered Johnson twenty years if he pled guilty to first-degree robbery, but on the morning trial was to begin, reduced its offer to eighteen years—with eighty-five percent parole eligibility and dismissal of the PFO charge. Johnson claims he wanted to accept the offer but counsel prevented him from doing so. Following review of the record, the briefs and the law, we affirm.
Johnson v. Commonwealth, 2012-SC-000650-MR, 2014 WL 2809860 (Ky. June 19, 2014).
Kentucky Rules of Criminal Procedure.
ANALYSIS
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 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 the 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. 2003) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)).
Because Johnson'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) overruled on other grounds by Leonard, 279 S.W.3d at 159).
For context, Johnson entered a Louisville convenience store, pointed a gun at the clerk and robbed the store of cash, lottery tickets, and cigarettes. He and his girlfriend were arrested a few hours later, after police were alerted to them attempting to cash the stolen lottery tickets. The clerk was unable to positively identify Johnson, but surveillance video captured the entire incident on film. When located by police, Johnson confessed. Johnson stood trial and was convicted. The direct appeal raised two jury instruction issues. The conviction was affirmed unanimously.
Johnson's first claim is he wanted to plead guilty, but trial counsel convinced him to stand trial. In reality, the record shows the opposite to be true. Trial counsel advised Johnson to plead guilty, but Johnson knowing all his options, rejected two lenient offers. The record easily establishes Johnson was well aware of and chose to reject both offers. In hindsight, Johnson now seeks a different outcome.
At a pretrial hearing two weeks before trial, counsel stated to the trial court on the record an offer of twenty years had been made on the charge of first-degree robbery with an eighty-five percent parole eligibility requirement. With Johnson in the courtroom, counsel also stated Johnson had rejected the offer. Johnson said nothing; he certainly did not object.
On the morning of trial, the following exchange occurred: Trial counsel: Judge, I did want to place on the record the offer that was made to Mr. Johnson for this case. The offer, for quite some time, has been twenty years on a robbery 1st conviction and eighty-five percent time. Mr. Johnson and I have discussed that several times and for lengthy periods of time. The offer this morning, pretrial, was eighteen years at eighty-five percent. I spoke to Mr. Johnson about that. As his counsel, I have advised Mr. Johnson, based on how I anticipate this case going, and the proof being presented by the Commonwealth, it is in his best interest to attempt to resolve this case through a guilty plea and not proceed to trial. However, he is aware of his rights, and despite the advice I have given him about it, he does wish to proceed to trial. But, we have discussed at length, several times, what the offer is from the Commonwealth. Judge: Let's see, Mr. Johnson, just for the record, will you confirm that you are turning this offer down of eighteen years? Johnson: Yes, sir. Judge: Okay. I like to do that just so there is nothing said later on that they were never advised of it. But, you've been advised of at least the offer was eighteen years. That's, I guess, not with the PFO, right? Commonwealth: I would dismiss, the Commonwealth would dismiss the persistent felony indictment against him. And, just go with . . . Judge: I presume he understands that he could get twenty to life. Trial counsel: I've informed him, Judge, he could get a life sentence for this if convicted of robbery first-degree, PFO offender in the first degree, if he is convicted by a jury. He understands that he can get that conviction, and he understands that he would be eligible for parole after twenty calendar years in the event he's convicted and given a sentence of that length. Judge: I suppose you've got a package deal with [co-defendant's counsel]. Is that right? Commonwealth: Yeah, we do. Judge: I mean, an offer has been made. Commonwealth: No, I did not. I've been waiting for the co-defendant to settle. Judge: Okay. Summarizing the above, Johnson was well aware he faced a life sentence if he stood trial. He was also aware of the terms of two offers extended to him by the Commonwealth. He never objected to trial counsel's statement of either offer or the advice counsel had given him—take the plea. When the judge asked him whether he was rejecting the offer of eighteen years, Johnson responded, "Yes, sir."
Contrary to Johnson's RCr 11.42 motion, there was simply no truth to his assertion he wanted to plead guilty, but counsel goaded him into going to trial, where conviction was a foregone conclusion in light of his confession and the surveillance video. He portrays the result—ending up with an enhanced sentence of thirty-three years as a PFO I, when he could be serving eighty-five percent of an eighteen-year sentence before becoming parole eligible—as counsel's fault, but counsel encouraged him to take the deal and plead guilty. Johnson's own words refute his current claim. The trial court did not err in denying the RCr 11.42 hearing without an evidentiary hearing.
Without factual support or definition, Johnson also accuses counsel of "utilizing a defacto [sic] contingent fee agreement to convince him to stand trial." Johnson makes the assertion without providing any details. RCr 11.42(2) requires claims to be made with specificity. This claim does not qualify. We do not search the record to find support for undeveloped arguments. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). A vague allegation justifies summary dismissal without an evidentiary hearing. Mills v. Commonwealth, 170 S.W.3d 310, 330 (Ky. 2005) overruled on other grounds by Leonard, 279 S.W.3d at 159.
Johnson raised other claims in the RCr 11.42 motion filed in the trial court, but did not expand on those arguments in his brief to this Court. As a result, those arguments are waived. See Smith v. Commonwealth, 567 S.W.2d 304, 306 (Ky. 1978).
Discerning no error in counsel's performance or the trial court's order denying RCr 11.42 relief, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher Johnson, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky