Opinion
NO. 2012-CA-001721-MR
06-06-2014
DARRELL WAYNE SHELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Darrell Wayne Shelton, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 10-CR-00092
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Darrell Wayne Shelton, pro se, appeals from the McCracken Circuit Court's denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion wherein he alleged ineffective assistance of counsel. After careful consideration, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On November 29, 2010, Shelton was tried by a jury in McCracken Circuit Court and convicted of assault in the first degree. His conviction stemmed from an attack he made against David Feezor at the Veterans of Foreign Wars Post in Paducah, Kentucky, on January 2, 2010. Following the trial, a final judgment was entered that imposed a sentence of ten years' imprisonment in accordance with the jury's verdict.
Shelton then appealed the judgment to our Court. The appeal was based on the sole claim of error that the trial court abused its discretion when it answered a jury question during the jury's deliberations. Our Court affirmed the decision of the trial court in Shelton v. Commonwealth, 372 S.W.3d 433 (Ky. App. 2012).
Next, on August 3, 2012, Shelton filed a pro se RCr 11.42 motion and supporting memorandum to vacate his conviction. In this motion, Shelton argued that his conviction and sentence should be vacated because he received ineffective assistance of counsel.
In his memorandum supporting the RCr 11.42 motion, Shelton gave these reasons to support his claim: counsel failed to conduct an adequate pretrial investigation to properly defend him; failed to preserve meritorious issues including, in particular, two evidentiary issues under Kentucky Rules of Evidence (KRE) 404(b); failed to call mitigating witnesses, besides Shelton's family members, to testify on his behalf; and failed to raise meritorious issues on appeal. Besides the RCr 11.42 motion, Shelton also filed motions to proceed in forma pauperis, for an evidentiary hearing, and for the appointment of counsel.
After receiving the Commonwealth's response to the motions, the trial court entered an order denying Shelton relief under the RCr 11.42 motion. The trial court held, citing Strickland v. Washington, that Shelton failed to demonstrate that defense counsel's performance was deficient or that he was prejudiced as a result of counsel's representation. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, the trial court found that an evidentiary hearing and appointment of counsel were not necessary since Shelton's claims were conclusively resolved by the record.
Shelton now appeals from this order. On appeal, the Department of Public Advocacy (DPA) was appointed to represent him, but it responded to the appointment by observing that this post-conviction proceeding was not one that a reasonable person, with adequate means, would be willing to bring at his or her own expense. Thereafter, our Court granted the DPA's motion to withdraw as counsel and to allow Shelton to file a pro se brief, which he has done.
STANDARD OF REVIEW
On an appeal from an order overruling an RCr 11.42 motion without an evidentiary hearing, "[o]ur review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth., 411 S.W.2d 321, 322 (Ky. 1967). Thus, a hearing is only required if an RCr 11.42 motion raises an issue that cannot be determined on the face of the record. RCr 11.42(5); Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993).
In an RCr 11.42 motion, the movant has the burden "to 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). Further, 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. Failure to comply with this section shall warrant a summary dismissal of the motion." RCr 11.42(2). Further, an RCr 11.42 motion is limited to the issues that were not and could not be raised on direct appeal. Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky. 1998) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).
To prevail on an ineffective assistance of counsel claim, a movant must show both that counsel's performance was deficient and also that, but for the deficiency, the outcome would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. "A 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., 466 U.S. at 694, 104 S.Ct. at 2068. Courts examine counsel's conduct in light of professional norms based on a standard of reasonableness. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
ANALYSIS
Now turning to this appeal, we note that the arguments found in Shelton's brief are somewhat different than those found in his original RCr 11.42 motion and memorandum. He provides four grounds in the headings of his brief to support his collateral attack on the judgment. He alleges that counsel committed errors outside the prevailing professional norms, that counsel did not adequately advise him as to what plea should be entered, that counsel did not raise meritorious issues already preserved for appeal, and finally, that the trial court abused its discretion in denying the motion to introduce evidence about PTSD, which was his defense against the intentional assault charge.
This argument is somewhat puzzling since a jury trial was held and no plea was entered.
A review of the language under the headings, however, indicates a mismatch between the headings and the arguments. Instead, in the language under the headings, Shelton maintains that counsel failed to object to or seek an interlocutory appeal of the trial court's exclusion of evidence of his purported PTSD, which, according to Shelton, falls outside the professional norms of defense counsel; that counsel failed to raise the trial court's exclusion of PTSD evidence and other meritorious claims on direct appeal (although Shelton provides no other claims); and that counsel failed to adequately investigate the case.
Moreover, Shelton now proffers certain errors on the part of the trial court. He contends that the trial court abused its discretion by improperly denying him the ability to defend himself when it disallowed him the opportunity to present evidence of his PTSD. Shelton further argues that the trial court judge abused his discretion by failing to recuse himself from the case. While Shelton acknowledges that these issues were not preserved, he argues that the trial court's actions were palpable error and, therefore, subject to consideration on appellate review.
Regarding Shelton's assertions that his trial counsel did not investigate the case or prepare adequate defenses, a review of the record confirms that defense counsel actively investigated the case in order to defend Shelton. Shelton's trial counsel proffered notices of an expert witness on a psychological evaluation of his client, responses to the Commonwealth's 404(b) notices, a notice of appeal, and a designation of the record, plus afforded Shelton representation at both the trial and appellate level.
Moreover, other than providing conclusory statements that his trial counsel's actions were deficient, Shelton provides no specific acts that counsel should have done or information that he should have discovered, or, for that matter, demonstrates any prejudice on the part of his counsel that resulted from a lack of assiduousness on his part. Pursuant to RCr 11.42, if the motion does not state specific grounds on which the sentence is being challenged, such failure "shall warrant summary dismissal of the motion." RCr 11.42(2).
As explained in Strickland, in a case alleging an ineffectiveness claim based on counsel's performance, the inquiry must be whether counsel's assistance was reasonable under the circumstances to ensure that the criminal defendant receives a fair trial. Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. Here, we are confident that counsel adequately investigated the case and properly defended Shelton. Even more significant, no prejudice occurred to Shelton based on action or inaction by his counsel. Counsel's representation was within the professional standards for an attorney.
Next, we address Shelton's contention that he did not receive effective representation by his counsel because counsel did not object to the exclusion of PTSD evidence at trial nor proffer it as an error by the trial court on appeal. Unfortunately, we are not able to address these issues because they were not properly preserved. The failure to object to the exclusion of the PTSD evidence was not raised to the trial court in the RCr 11.42 motion or its accompanying memorandum. In fact, the only mention of the exclusion of this evidence in the record is found in a motion in limine proffered by the Commonwealth and granted by the trial court before the trial. Thus, Shelton's discussion of the issue in his brief is not supported by the record. Since the matter is in the brief but not supported by the record, we cannot consider it. Ray v. Ashland Oil, Inc., 389 S.W.3d 140, 145 (Ky. App. 2012). Furthermore, in Bowling v. Commonwealth, 80 S.W.3d 405, 419 (Ky. 2002), the Kentucky Supreme Court noted that an issue not raised in movant's RCr 11.42 motion is not properly before the Court and could not be considered on appeal.
Although Shelton did allege and preserve the issue of whether counsel was ineffective for failure to preserve meritorious issues for appeal, his memorandum only discussed counsel's failure to object to the introduction of KRE 404(b) evidence, not the PTSD issue. But the memo not only does not give any factual support for the exclusion of the PTSD evidence but also does not even mention the PTSD issue. Accordingly, the issue involving KRE 404(b) evidence was answered by the trial court in its order denying the RCr 11.42 motion.
Shelton also contests the trial court's decision to not grant him an evidentiary hearing. When an RCr 11.42 motion for an evidentiary trial is made, a trial court's decision about whether an evidentiary hearing is necessary rests on whether a material issue of fact exists that cannot be determined on the face of the record. Wilson v. Commonwealth, 975 S.W.2d 901, 904 (Ky. 1998). Kentucky courts have consistently held a hearing is not necessary when a trial court can resolve issues on the basis of the record or when "it determine[s] that the allegations, even if true, would not be sufficient to invalidate [the] convictions." Id. Here, since Shelton either did not provide specific examples or preserve the aforementioned issues, these matters could conclusively be resolved by an examination of the record and, hence, no evidentiary hearing was warranted.
Two additional issues raised in Shelton's brief concerned the trial court's acts, which he suggests were palpable error. First, he states that the trial court erred by its prohibition of PTSD evidence during the trial. Shelton maintains that exclusion of this evidence prevented him from putting forth an adequate defense. Second, he proffers that the trial court judge abused his discretion by not recusing himself from the trial.
Initially, we observe that neither issue related to actions by the trial court was preserved. Shelton never articulates in the RCr 11.42 motion or its supporting memorandum that the trial court's exclusion of PTSD evidence prevented him from defending himself or that the trial court judge presiding over the civil case involving Shelton's victim and Veterans of Foreign Wars was an act of bad faith, which warranted recusal. As noted above, if an issue is not preserved, the claims cannot be considered for the first time on appeal. Bowling, 80 S.W.3d at 419.
In addition, Kentucky courts have provided an explicit procedure that permits a graduated series of steps by which a prisoner may attack his criminal conviction. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Indeed, this mechanism is neither haphazard nor overlapping. Id. According to the high court,
RCr 11.42 provides a procedure for a motion to vacate, set aside or correct sentence for "a prisoner in custody under sentence or a defendant on probation, parole or conditional discharge." It provides a vehicle to attack anId. Therefore, an RCr 11.42 motion is limited to issues that were not and could not be raised on appeal.
erroneous judgment for reasons which are not accessible by direct appeal.
Shelton's claims of error by the trial court are issues that should have been raised on direct appeal. The denial of the right to present a defense and failure to recuse are issues to be brought on direct appeal. See McGuire v. Commonwealth, 368 S.W.3d 100, 105 (Ky. 2012) (denial of a right to present a defense on direct appeal); Matthews v. Commonwealth, 371 S.W.3d 743, 752 (Ky. App. 2011)(recusal of judge on direct appeal). Without making any comment on the validity of Shelton's argument of palpable error on the trial court's part, we note that these issues concerning the trial court should have been raised in a direct appeal. Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010).
CONCLUSION
Consequently, the McCracken Circuit Court did not abuse its discretion in denying Shelton's RCr 11.42 motion since he was unable to prove that he was prejudiced by any errors of trial counsel. Furthermore, the trial court did not err in denying Shelton's motion for an evidentiary hearing because the issues articulated by him were able to be resolved based on the record. Finally, the allegations of errors on the part of the trial court are not viable under an RCr 11.42 motion and should have been made by direct appeal.
In sum, the denial of Shelton's RCr 11.42 motion is affirmed on all grounds. The decision of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Darrell Wayne Shelton, pro se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Frankfort, Kentucky