Opinion
NO. 2015-CA-000108-MR
08-19-2016
RAY BELL, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ken Garrett Glasgow, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 11-CR-00047 OPINION
AFFIRMING
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BEFORE: CLAYTON, LAMBERT, D., AND NICKELL, JUDGES. CLAYTON, JUDGE: Ray Bell, Jr. appeals from an order of the Hancock Circuit Court denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Bell asserts that the trial court erred in denying this motion, which was based on his claim of ineffective assistance of counsel. For the reasons explained below, we affirm.
Bell was indicted by the Hancock County Grand Jury for first-degree rape, first-degree sodomy (three counts), and first-degree sexual assault (ten counts). Before trial, Bell entered a guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to two counts of first-degree sexual assault. Bell was formally sentenced on February 11, 2013, and received a sentence of ten years.
Thereafter, Bell filed the RCr 11.42 motion complaining about ineffective assistance of counsel. He asserted primarily that trial counsel failed to advise him about the sexual offender treatment program and did not properly investigate the matter. The trial court held a hearing on December 12, 2014, and from the bench, denied the RCr 11.42 motion holding that, pursuant to Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012), failure to inform of the sexual offender treatment program did not rise to the level of ineffective assistance of counsel and that trial counsel appropriately investigated the matter. Thereafter, on December 22, 2014, the trial court entered a written order confirming its holding. Bell now appeals this order.
On appeal, Bell maintains that because trial counsel did not advise him properly about the sexual offender treatment program, counsel provided ineffective assistance of counsel and, thus, the trial court erred when it did not find a factual basis for Bell's claim of ineffective assistance of counsel. Furthermore, Bell contends that since trial counsel did not properly investigate a defense for him, the trial court also erred in not making a finding supporting a claim of ineffective assistance of counsel. The Commonwealth disagrees and posits that the trial court properly denied Bell's motion.
Ordinarily, a defendant who enters a voluntary guilty plea waives all defenses. Centers v. Commonwealth, 799 S.W.2d 51, 55 (Ky. App. 1990). But to be entitled to relief under RCr 11.42 from a guilty plea, the movant must allege, with particularity, specific facts, which, if true, would render the plea involuntary under the Fourteenth Amendment's Due Process Clause. The rationale is that the plea is so tainted by counsel's ineffective assistance as to violate the Sixth Amendment and, otherwise, clearly renders the plea invalid. Pridham, 394 S.W.3d at 874 (citing Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 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). Moreover, counsel is constitutionally ineffective only if the performance falls below professional standards to the extent that a defendant loses a case that he or she would probably have won otherwise. United States v. Morrow, 997 F.2d 222, 229 (6th Cir. 1992). Therefore, in a case asserting ineffective assistance of counsel concerning a guilty plea, the prejudice prong is satisfied by proof "that there is a reasonable probability that, but for counsel's errors [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
The party filing the RCr 11.42 motion 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). Notably, the Court uses the word "extraordinary" to describe the relief provided in a post-conviction proceeding.
"A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). And the Court reviews the trial court's application of legal standards and precedents de novo. Brown v. Commonwealth, 253 S.W.3d 490 (Ky. 2008). Keeping in mind the aforementioned two-pronged test for ineffective assistance of counsel, that is, whether counsel made errors so serious that counsel was not functioning in a manner guaranteed by the Sixth Amendment and whether such a performance prejudiced the defense, we consider trial counsel's actions in this action.
Bell first argues that he received ineffective assistance of counsel because trial counsel did not inform him about the sexual offender treatment program and the three-year conditional discharge. At the evidentiary hearing, Bell's trial counsel testified that he did not recall whether he told Bell about the sexual offender treatment program. Bell, however, did not ask the trial counsel if he remembered discussing the three-year conditional discharge.
Whether failure to provide information about sexual offender treatment program meets the standard necessary to establish ineffective assistance of counsel and relief under RCr 11.42, was addressed in Commonwealth v. Pridham by the Kentucky Supreme Court. See Pridham, 394 S.W.3d 867 at 882-85. The Court held that trial counsel's failure to inform defendant about the sexual offender treatment program did not establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court deemed that a sexual offender treatment program is not a punishment or penalty but a rehabilitative measure that does not affect defendant's underlying sentence or enhance his punishment. Pridham, 394 S.W.3d 867 at 882.
The Court's reasoning flows from the distinction between direct and collateral consequences of sentencing. Significantly, a guilty plea is involuntary if the defendant lacked full awareness of the direct consequences of the plea or relied on a misrepresentation by the Commonwealth or the trial court. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006)(citing Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)).
Attorneys are constitutionally required to warn their clients about direct consequences of a guilty plea, which typically relate to the nature of the criminal charge and sentencing. By contrast, attorneys are not always required to warn their clients about collateral consequences, which are usually noncriminal in nature.
In Pridham, the Court explained the impact of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Prior to Padilla, an attorney's failure to inform a defendant about collateral consequences of sentencing did not rise to the level of ineffective assistance of counsel. But Padilla invalidated this legal holding regarding the impact of an attorney's failure to inform about some collateral consequences and its relationship to appropriate legal representation. For collateral consequences, such as deportation, because of their punitive effect, their severity, and their intimate relationship to the direct criminal penalties and where the consequences are easily determined from a clear and explicit statutory language, failure to inform a defendant about these consequences constitutes ineffective assistance of counsel. Indeed, the United States Supreme Court concluded the Kentucky Supreme Court improperly classified deportation as a collateral consequence without any impact on the effectiveness of counsel. Id. at 366, 130 S.Ct. at 1482. However, although the United States Supreme Court in Padilla rejected the direct collateral distinction with respect to deportation, it declined to address or clarify the distinction more generally. See Pridham, 394 S.W.3d at 881.
Recognizing the United States Supreme Court's decision to not delineate any distinction to the collateral consequences rule other than deportation, Pridham explained that the deferral of [the defendant's] parole eligibility until he or she completes sex offender treatment is not like "deportation." As stated by the Court:
To begin with, sex offender treatment is not a punishment or a penalty. It is a rehabilitative measure the General Assembly has deemed important enough to make mandatory. As then-Judge, now Justice, Schroder observed for the Court of Appeals in Garland v. Commonwealth, 997 S.W.2d 487 (Ky. App. 1999), the fact that sex offender treatment has been made a condition precedent to parole does not affect a defendant's underlying sentence and does not enhance his punishment, even where the effect of the condition precedent is to delay his parole eligibility.Id. at 882.
During the evidentiary hearing, Bell maintained that because he had entered an Alford plea, he would be unable to successfully complete a sexual offender treatment program since he has not acknowledged guilt for the charged offenses. Nonetheless, contrary to Bell's contention that he could not complete the sexual offender treatment program because of his Alford plea, our Court stated that "[t]he entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty. By entering such a plea, a defendant may be able to avoid formally admitting guilt at the time of sentencing, but he nonetheless consents to being treated as if he were guilty with no assurances to the contrary." Wilfong v. Commonwealth, 175 S.W.3d 84, 102 (Ky. App. 2004)(quoting State v. Faraday, 268 Conn. 174, 842 A.2d 567, 588 (2004)). The trial court's acceptance of an Alford plea does not imply that a defendant may unconditionally maintain his innocence for all purposes. Id. Therefore, Bell's Alford plea does not excuse him from the completion of the sexual offender treatment program.
In sum, the trial counsel's failure to inform Bell about the necessity to complete a sexual offender treatment program does not support a claim of ineffective assistance of counsel since it is not a direct consequence of sentencing and as a collateral consequence of sentencing does not require the same handling as deportation or similar consequences, which are seen as punitive rather than rehabilitative. Hence, the trial court did not err in finding that trial counsel's failure to inform about the sexual offender treatment program did not render counsel's performance ineffective.
Bell's second major assertion regarding ineffective assistance of counsel is that his trial counsel failed to investigate. In particular, he alleges that his trial counsel did not perform any witness interviews or obtain his work records from his employment. It is significant that the time period covered by the Indictment was fourteen months and that the crimes occurred at night rather than during Bell's work. For the most part, Bell and his parents' allegations against trial counsel were vague and non-specific. His school records and work records had no direct link to the time period of the victim's allegations.
Further, trial counsel testified at the hearing that he did interview witnesses; that his paralegal tried to find some of the suggested witnesses and was unable; that he had records provided by Bell and his parents but that the records did not correspond with the time period of the alleged illegal activity; and, that he developed several theories of the case. Further, one theory of the case was unlikely to be allowed into evidence because of the rules of evidence, which he explained to Bell and his family. Regarding the victim, trial counsel obtained all her written and audio-recorded statements and had a forensic expert examine her cell phone seeking exculpatory evidence.
Bell and his parents testified at the evidentiary hearing, but as stated by the trial judge, they did not and could not understand legal requirements for preparing a case for trial. The trial court determined that trial counsel had done an adequate job of investigation. Therefore, Bell did not prove that he was prejudiced by the action of this trial counsel.
Bell has two requirements to establish ineffective assistance of counsel, that is, counsel's performance was deficient and the deficient performance prejudiced the defense. And, to reiterate, he must show "that there is a reasonable probability that, but for counsel's errors [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 58, 106 S.Ct. at 370. Bell's counsel negotiated a sentence of ten years. If Bell had gone to trial, he faced the possibility of a term of seventy years of imprisonment, or, even life if it was established the victim was under twelve when the sexual abuse occurred. (On the face of the indictment, it appears she was under eleven when some of the alleged sexual crimes occurred.) Bell provided no evidence or information that if trial counsel had performed differently, he would have gone to trial and been exonerated. Thus, Bell has not established that trial counsel performed ineffectively. Further, even if Bell did know about the sexual offender treatment program and the conditional discharge, he likely would have still not gone to trial. Consequently, he has not met the Hill and Strickland requisite standards to establish ineffective assistance of counsel.
The record indicates Bell's trial counsel advised him of all the foreseeable consequences of a guilty plea and effectively negotiated a reduced charge. Thus, in light of the relevant facts and applicable case law, we find no error in the trial court's order. We affirm the decision of the Hancock Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Ken Garrett
Glasgow, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky David B. Abner
Assistant Attorney General
Frankfort, Kentucky