Opinion
NO. 2012-CA-002087-MR
06-27-2014
CURTIS FRANKLIN SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Curtis Franklin Smith, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General W. Bryan Jones Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 09-CR-00195
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. CLAYTON, JUDGE: Curtis Franklin Smith appeals from the Fayette Circuit Court's denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion alleging ineffective assistance of counsel. After careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2008, Charles Holder was shot and killed during an illegal drug transaction at the Coolavin Apartments in Lexington, Kentucky. Two men fled following the shooting. Subsequently, on February 3, 2009, Curtis Franklin Smith, the appellant, was indicted on six counts, including murder, for the above criminal event.
On May 28, 2010, Smith entered a guilty plea on two counts - murder and possession of a firearm by a convicted felon. The final judgment and sentence of imprisonment was entered on July 14, 2010, and Smith was sentenced to twenty years' imprisonment for the murder conviction and five years for the possession of a firearm by a convicted felon. The sentences were to run concurrently for a total sentence of twenty years.
On February 8, 2012, Smith, pro se, filed an RCr 11.42 motion alleging ineffective assistance of counsel as well as requesting the appointment of counsel and an evidentiary hearing. Counsel from the Department of Public Advocacy (hereinafter the "DPA") was appointed and filed a supplemental RCr 11.42 motion. On November 5, 2012, the trial court denied the RCr 11.42 motion without holding a hearing. Smith now appeals this decision and seeks remand for an evidentiary hearing with the appointment of counsel.
After Smith appealed the trial court's denial of his RCr 11.42 motion, the DPA made a motion to our Court for permission to withdraw as counsel and for us to permit Smith to file a pro se brief. In the motion, the DPA stated that it "has reviewed the record in this case and has determined that this 'post-conviction . . . is not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense.'" Kentucky Revised Statutes (KRS) 31.110(2)(c). Our Court granted this motion on April 10, 2013.
In his brief, Smith makes the following arguments: the trial court abused its discretion when it did not grant an evidentiary hearing to determine whether his trial counsel was ineffective when counsel failed to consult, investigate, and prepare a defense before advising him to plead guilty and, further, coerced him into entering a guilty plea; counsel failed to advise him on the defenses of extreme emotional disturbance (EED) and self-defense; counsel failed to obtain a mental evaluation of his competency; and finally, counsel failed to investigate an alternative perpetrator defense. In contrast, the Commonwealth maintains the trial court did not abuse its discretion in denying the RCr 11.42 motion.
STANDARD OF REVIEW
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)). 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, 908-909 (Ky. 1998)(overruled on other grounds).
The standards used to evaluate the ineffective assistance of counsel are set out in 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). In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that but for the deficiency, the outcome would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In addition, 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 proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968).
Courts must also examine counsel's conduct in light of professional norms based on a standard of reasonableness. Strickland , 466 U.S.at 688-89, 104 S.Ct. at 2064-2065. When considering a claim of ineffective assistance of counsel, the reviewing court must consider the totality of evidence before the trial judge to assess the overall performance of counsel and determine whether the alleged acts or omissions proffered by the movant overcame the presumption that counsel rendered reasonable professional assistance. United States v. Morrow, 977 F.2d 222, 229-30 (6th Cir. 1992). Additionally, a reviewing court must be highly deferential in scrutinizing counsel's performance when attempting to determine whether counsel has been ineffective. See Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). With respect to a guilty plea, there is also a requirement that the movant show that counsel's performance so seriously affected the case that, but for the deficiency, the movant would not have pled guilty and would have insisted on going to trial. Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
Finally, since the trial court did not hold an evidentiary hearing, our review is limited 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). With these standards in mind, we will examine the trial court's decision.
ANALYSIS
First, we address Smith's allegation that his counsel failed to adequately investigate whether he should enter a guilty plea. Furthermore, Smith contends that he was coerced into entering an invalid plea of guilty by his trial counsel.
Significantly, the written and video records of the trial court invalidate the claim that he was coerced into entering a guilty plea. The document "Waiver of Further Proceedings with Petition to Enter Plea of Guilty" indicated that Smith was a twenty-year-old high school graduate with one semester of college education. In the document, he acknowledged that he had read the indictment, understood it, and discussed it with his counsel. Smith declared in the document that no one forced him to plead guilty. In addition, Smith admitted that he was pleading "freely, voluntarily, and of his own accord."
The video record of the May 28, 2010 plea also demonstrates that Smith was not coerced. After being placed under oath, he stated that he was satisfied with his attorneys, read the aforementioned "Waiver," and that counsel had advised him at length about the charges and their defenses. Next, the videotape shows the trial judge reviewing with Smith his constitutional rights. In particular, Smith affirms that no threats or promises were made to influence his plea. The trial judge gave him an opportunity to provide his version of the events, which he did. Finally, Smith confirmed that he understood his rights and possible defenses and that he was making his plea knowingly, voluntarily, and intelligently. Thus, the record convincingly demonstrates that Smith was not coerced into making the guilty plea.
The validity of a guilty plea must be determined not only from specific key words uttered at the time the plea was taken, but also from considering the totality of circumstances surrounding the plea. Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990). The evaluation of the totality of the circumstances surrounding a guilty plea is an inherently factual inquiry that requires consideration of "the accused's demeanor, background and experience, and whether the record reveals that the plea was voluntarily made." Id. "The trial court is in the best position to determine if there was any reluctance, misunderstanding, involuntariness, or incompetence to plead guilty." Id. (citations omitted). Solemn declarations in open court carry a strong presumption of verity. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
Moreover, counsel merely advising a client to plead guilty does not demonstrate ineffective assistance of counsel. Russell v. Commonwealth, 992 S.W.2d 871, 875 (Ky. App. 1999). Since pleading guilty may result in a lighter sentence than otherwise might be imposed, such advice to a client is not improper. Osborne v. Commonwealth, 992 S.W.2d 860, 864 (Ky. App. 1998). Here, on the murder charge alone, Smith faced life imprisonment. Instead, he pled guilty to a total sentence of twenty years for murder and possession of a firearm by a felon.
In the case at hand, the trial judge correctly accepted the plea and, hence, later denied the RCr 11.42 motion without a hearing. As noted, the record conclusively refuted that Smith was coerced into making a guilty plea. Moreover, given the totality of the circumstances, counsel did not render ineffective assistance by advising their client to enter into the guilty plea. There was no error and certainly no prejudice.
EED and Self-protection Defenses
Next, we consider Smith's claim that counsel's assistance was ineffective because it did not include advising him about the defenses of EED and self-defense. He claims that had he known about these defenses, he would not have pled guilty. Initially, we observe that both the written and video records support that Smith's counsel explained, prior to the entry of the guilty plea, the defenses to the crimes and, further, that Smith acknowledged that he understood them.
Also pertinent to the lack of efficacy in this claim by Smith is that during his testimony at the plea hearing, he described that he was in the midst of a drug deal and he thought the victim was trying to rob him. A struggle occurred, and he shot the victim. Smith's own description of the events does not support either an EED or a self-protection defense.
Without conceding that an EED defense was available, if it was presented to a jury its impact is unknown. Furthermore, EED is not a complete defense to murder but merely mitigates the murder charge to manslaughter in the first degree charge. The maximum sentence for murder ranges from twenty to fifty years or life. Kentucky Revised Statutes (KRS) 507.020; KRS 532.025(3); KRS 532.030. The maximum sentence for manslaughter in the first degree ranges from ten to twenty years. KRS 507.030. Had Smith gone to trial without pleading guilty, he would still have faced five other counts, four of which were dismissed when he entered a guilty plea. Similar sentencing ramifications also occur with a self-protection defense.
To prevail on an RCr 11.42 motion, Smith must show that he would have gone to trial because of the strength of an EED and/or self-protection defense. The record does not contain evidence sufficient to satisfy the definition of extreme emotional disturbance as set forth in Park v. Commonwealth, 413 S.W.3d 638, 644 (Ky. App. 2012):
To establish EED, a defendant must show a temporary state of mind "so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky.1986). "[T]he event which triggers the explosion of violence on the part of the criminal defendant must be sudden and uninterrupted." Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky.1991).Smith's testimony and actions do not implicate he acted under EED or self-defense. He has failed to show either that he could avail himself of these two defenses, or even more importantly, that it would have been persuasive to a jury. Similarly, the record is devoid of any evidence suggesting that Smith was engaged in self-defense.
Consequently, we concur with the trial court that counsel was not ineffective in advising him to plead guilty rather than proffer these unlikely or even ill-advised defenses at trial.
Mental Competency Examination
The third issue involves whether counsel was ineffective for its failure to obtain a mental evaluation of Smith. Smith contends that because he was diagnosed at a young age as having Attention Deficit Hyperactivity Disorder (ADHD), he did not understand the proceedings against him and was not competent to enter his plea. The trial court disagreed with Smith's argument.
In denying an RCr 11.42 motion, the trial judge noted that "[a] competency determination is based on the preponderance of the evidence standard." Dunlap v. Commonwealth, 2013 WL 3121689, 5 (Ky. 2013). In most scenarios, the test for determining competency to plead guilty is the same as determining competency to stand trial: "whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960); Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky. 2007).
The trial judge articulated in the opinion that when Smith entered his guilty plea, he acquiesced that it was made "knowingly, voluntarily, and intelligently." Moreover, Smith entered the plea with the benefit of counsel who also advised the court that they recommended the plea and in their judgment it was knowingly, voluntarily, and intelligently made. During the plea proceedings, Smith informed the trial judge that he had not suffered from or been treated for a mental illness, disease, or defect. Finally, as the trial judge observed, although Smith may have ADHD, he was able to file not only a motion to vacate his sentence but also prepare a supportive brief. All these actions illustrate that Smith understood the charges and the proceedings.
Irrational behavior, demeanor in court, and prior medical opinion regarding competency are all factors used to determine competency. Padgett v. Commonwealth, 312 S.W.3d 336, 347 (Ky. 2010)(citations omitted). A mere assertion of ADHD by Smith does not counter the evidence on the record that he was competent to enter a guilty a plea or that his counsel rendered ineffective assistance by not requesting a mental examination. We concur with the trial court that Smith had "rational as well as factual understanding of the proceedings against him" and, thus, it did not abuse its discretion by failing to grant the RCr 11.42 motion on this issue. Smith has failed to establish that counsel's performance was inadequate.
Alternate Perpetrator
The fourth issue for our review is Smith's contention that his counsel was ineffective for its failure to investigate an alternative perpetrator defense regarding the possession of a handgun by a convicted felon. In fact, although Smith's heading and description of his argument cite to "an alternative perpetrator defense regarding the possession of a handgun by a convicted felon," his argument relates only to an alternative perpetrator on the murder charge.
Count 3 of Smith's indictment, "possession of a handgun by a felon" was dismissed under the guilty plea.
Smith's argument is rather convoluted, but it is based on statements made to police by a friend of the murder victim, John Saporito, who was with Holder when he was murdered. Smith claims that Saporito's statement establishes evidence that another person committed the crime. We would be remiss if we did not point out that if Smith did not commit the murder, there would be no need for his ostensible EED or self-protection defense.
The origin of Smith's alternate perpetrator theory is Saporito's statement that the shooter was "tall and skinny." However, besides making this statement, Saporito also said that Holder and he were confronted by two black males who were 5'9" and of average height. Smith is 5'10" and weighs 165 pounds. Other evidence also implicated Smith as the person responsible for Holder's murder. The prosecution's theory of the crime also rested on the evidence that Smith's fingerprints were found in the getaway car and his admissions to others that he killed a man at the apartment where the murder took place.
Strickland holds that defense counsel is obligated "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; see also Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001)(overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). Moreover, an alleged failure to investigate must be directly assessed as to reasonableness with a high degree of deference given to counsel's judgments. Id. "A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct." Haight, 41 S.W.3d at 446. In the case at hand, we hold that Smith's counsel made a reasonable investigation of the case and that Smith's protestations to the contrary about an alternative perpetrator are not persuasive.
Evidentiary Hearing
Smith requested an evidentiary hearing on all his various claims of ineffective assistance of counsel and contends that the trial court erred in failing to hold an evidentiary hearing. An evidentiary hearing, however, is not a vested right to which every RCr 11.42 movant is entitled. See Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993).
Instead, to merit an evidentiary hearing, the movant must satisfy a two-part test. "First, the movant must show that the 'alleged error is such that the movant is entitled to relief under the rule.'" Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (citation omitted). Second, RCr 11.42(5) necessitates a hearing only "if the answer raises a material issue of fact that cannot be determined on the face of the record." Accordingly, an evidentiary hearing is not necessary to consider issues already refuted by the record in the trial court.
Further, conclusory allegations which are not supported with specific facts do not justify an evidentiary hearing since the RCr 11.42 process does not serve the function of discovery. Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003) (citation omitted), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
With regard to whether an evidentiary hearing was necessitated by Smith's RCr 11.42 motion, we conclude that, because either the record refutes the allegations raised or the allegations are conclusory and unsupported by specific facts, an evidentiary hearing was not justified. Consequently, the trial court did not err when it denied Smith's motion for an evidentiary hearing. RCr 11.42(5); Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
Trial Court's Opinion
Two minor discrepancies are in the trial court's opinion. First, in describing the history of the case, the trial judge refers to Smith pleading guilty to murder and possession of a handgun by a convicted felon. Rather, Smith pled guilty to murder and possession of a firearm by a convicted felon. Nonetheless, both the video record of the guilty plea and the final judgment reflect that Smith pled guilty to possession of a firearm by a convicted felon. Further, the sentence for the possession of a firearm by a convicted felon ran concurrently with the murder sentence so that the mistaken reference in the opinion does not, in any way, undermine the trial judge's judgment or reasoning in denying the RCr 11.42 motion.
Second, in the section titled "Legal Analysis," the trial judge in two separate places discusses the enhancement of the murder charge because of a persistent felony offender charge. The persistent felony offender charge, however, pertained to the co-indictee, Christopher Edward Taylor. Even though the trial judge discussed a persistent felony enhancement, the trial judge correctly reasoned that had Smith gone to trial on all six counts in the indictment, he was facing a much greater sentence than the twenty years he received when he pled guilty. The dismissed counts included robbery, first-degree, and fleeing or evading police, second-degree. Therefore, the trial court's ultimate point that had Smith not pled guilty and gone to trial, he faced a greater sentence than twenty years and does not ultimately undermine the decision to deny the RCr 11.42 motion.
CONCLUSION
In the case at hand, the record and in particular Smith's guilty plea, refute his claims that counsel was ineffective during the pretrial and guilty plea stages of the proceedings. Therefore, we are of the opinion that the trial court's summary denial of the motion was proper, and we affirm the Fayette Circuit Court's decision denying Smith's RCr 11.42 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Curtis Franklin Smith, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
W. Bryan Jones
Frankfort, Kentucky