Opinion
NO. 2010-CA-000434-MR
04-10-2015
EARL VINCENT, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Earl Vincent, Jr. Green River Correctional Complex Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 05-CR-00065
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND MAZE, JUDGES. COMBS, JUDGE: Earl Vincent, Jr., appeals the order of the Edmonson Circuit Court denying his motion to vacate his conviction. After our review, we affirm.
On March 9, 2007, a jury found Vincent guilty of two counts of first-degree rape, nine counts of sodomy in the first degree, fifteen counts of first-degree sexual abuse, and three counts of incest. He received a sentence of fifty-years' incarceration. The Supreme Court of Kentucky affirmed Vincent's conviction on April 23, 2009. Vincent v. Commonwealth, 281 S.W.3d 785 (Ky. 2009).
On October 16, 2009, Vincent filed a motion to vacate the judgment pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42. He alleged ineffective assistance of counsel and requested an evidentiary hearing. The trial court denied the motion on December 14, 2009. After a lengthy series of procedural events which bear no relevance to the current action, Vincent's appeal is now before us.
In order to prove that he had received ineffective assistance of counsel, a convicted defendant "must show that counsel's performance was deficient" and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The prejudice must be proven by "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.
On appeal, we may only review a trial court's denial of a motion for an evidentiary hearing to determine whether the allegations are not refuted by the record on its face and which, if true, would invalidate the conviction. Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). No evidentiary hearing is required if the record itself contradicts the allegations. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986).
Vincent argues that trial counsel was ineffective by failing to object to allegedly erroneous jury instructions. He contends that instructions 12, 13, and 24 describe one continuous sexual act which the Commonwealth impermissibly separated in order to create additional charges. However, in his motion to the trial court, Vincent argued that his counsel "did not object or challenge 'the sufficiency of the evidence on the 29 written jury instructions . . . although none of the alleged victims could pinpoint an exact number of times for which she was subject to sexual abuse.'"
The salacious nature of the details need not be repeated in this opinion in order for us to resolve the legal issues.
In order to be properly before us, an issue must be first raised to the trial court. Smith v. Commonwealth, 370 S.W.3d 871, 875-76 (Ky. 2012). Vincent argues before us for the first time that counsel erred in failing to object to the three specific instructions: 12, 13, and 24. Yet before the trial court, he merely raised a blanket objection to the 29 jury instructions in general. His generalized objection before the trial court cannot serve as a basis for us now to entertain specific objections to the three specific instructions. We hold that he failed to comply with the rule of Smith, supra, and that we cannot consider this argument.
Vincent also alleges that his appellate counsel was ineffective for not arguing that the jury instructions were erroneous. We have examined Vincent's RCr 11.42 motion presented to the trial court, and he wholly omitted the issue of effectiveness of appellate counsel. He has failed to comply with the clear mandate of Hollon v. Commonwealth, 334 S.W.3d 431, 441 (Ky. 2010), which requires the raising of this issue before the trial judge along with sufficient documentation in support of the claim (i.e., attachment of the appellate brief for review of the trial judge). Therefore, we are again barred from considering his claim of ineffectiveness of appellate counsel.
Vincent next argues that his trial counsel erred by failing to object to hearsay testimony of the investigating police officer, Kentucky State Police Sergeant John Clark. At trial, Sgt. Clark stated that the victims recounted "years of rape, sodomy, and incest" committed by Vincent.
Our Supreme Court addressed this claim of error in Vincent's direct appeal. It held that Vincent was not prejudiced by Sgt. Clark's statement because the victims provided detailed testimony of specific instances of abuse over a long period of time. The jury heard abundant evidence from the victims which detailed "years of rape, sodomy, and incest." Sgt. Clark's statement was merely a recapitulation or summary of the allegations of the victims. We cannot conclude that Vincent's counsel was ineffective by not objecting to a statement which the Supreme Court has held to be admissible. Supreme Court Rule (SCR) 1.030(8)(a) (Court of Appeals is bound by Supreme Court precedent).
Finally, Vincent asserts that his trial counsel should have objected to a portion of the opening statement by the Commonwealth. The Commonwealth told the jury that the original indictment had consisted of nearly three hundred counts. The Commonwealth then commented that the three hundred charges reflected only a portion of the abuse and fell short of accurately conveying the enormity of abuse that the victims had in fact endured.
Again, the Supreme Court has already examined this allegation in Vincent's direct appeal. It noted that although the three victims testified as to many instances (two of them to thirty instances each), the prosecutor was meticulous in instructing the jury only as to instances specifically related by the victims. The Supreme Court concluded that "[a]lthough we would not condone an intentional, baseless tenfold overcharging of criminal counts, the fact that Vincent was initially charged with 294 counts but that only 29 counts were eventually submitted to the jury does not entitle him to relief under the facts of this case." Vincent v. Commonwealth, 281 S.W.3d at 289. Therefore, we cannot conclude that Vincent's counsel provided ineffective assistance by not objecting to a statement which the Supreme Court has held did not prejudice Vincent. SCR 1.030 (8)(a).
Vincent has failed to present any claims of error that are not refuted by the record. Thus, the trial court did not err in denying his motion for an evidentiary hearing.
We affirm the order of the Edmonson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Earl Vincent, Jr.
Green River Correctional Complex
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky