Opinion
NO. 2012-CA-001179-MR
01-17-2014
HOSEA CHATMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Margaret Ivie Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 10-CR-00112
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES. MOORE, JUDGE: Hosea Chatman appeals the McCracken Circuit Court's order denying his RCr 11.42 motion to vacate his sentence and his CR 60.02 motion for relief from the judgment against him. After a careful review of the record, we affirm because the circuit court properly denied Chatman's claim that he was not provided a proper Faretta hearing; Chatman's ineffective assistance of counsel claims lack merit; the circuit court did not err in failing to hold a hearing concerning his RCr 11.42 claims; and Chatman's claims were not properly brought under CR 60.02.
Kentucky Rule of Criminal Procedure.
Kentucky Rule of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Chatman was indicted on the following charges: (Count 1) First-degree robbery; (Counts 2 and 3) kidnapping; (Count 4) second-degree fleeing/evading police (on foot); (Count 5) criminal attempt to disarm a peace officer; (Count 6) third-degree assault; (Count 7) third-degree criminal mischief; (Count 8) resisting arrest; and (Count 9) of being a first-degree persistent felony offender.
Chatman moved for the court to appoint him as co-counsel "with leave to file motions [on] his own behalf." His motion was initially denied because Chatman's counsel had advised the court that Chatman had withdrawn his motion. However, Chatman renewed his motion and following a brief hearing on the matter, the court granted his request for hybrid representation.
The Commonwealth moved to amend the language in count one of the indictment that charged Chatman with first-degree robbery. The court granted the Commonwealth's motion to amend the indictment.
Thereafter, the Commonwealth provided Chatman an offer on a plea of guilty, which stated that the Commonwealth offered to amend the first-degree robbery charge to second-degree robbery and to amend the PFO-1st charge to PFO-2nd in exchange for Chatman's guilty plea. The Commonwealth's offer also provided that if Chatman entered a guilty plea, the Commonwealth would recommend the following sentences: (1) ten years of imprisonment on the amended count one; (2) twenty years of imprisonment each on counts two and three; (3) twelve months of imprisonment each on counts four, five, and eight; (4) five years of imprisonment on count six; and (5) ninety days of imprisonment on count seven. The Commonwealth would recommend that the sentences on counts one through eight run concurrently with each other. Additionally, the Commonwealth proffered that it would recommend a sentence of forty years of imprisonment on the amended count nine, to run in lieu of the sentence on counts one through eight, for a total of forty years of imprisonment, plus the forfeiture of all items seized except Chatman's eyeglasses, which the Commonwealth said would be returned to Chatman. The Commonwealth further stated that it would recommend that Chatman serve twenty percent of his sentence prior to becoming eligible for parole, and that he would be ineligible for probation and shock probation because he was on felony parole at the time he committed these offenses.
Chatman moved to enter a guilty plea regarding counts one, four, five, six, seven, eight, and nine in accord with the Commonwealth's offer. Chatman also moved to enter an Alford plea regarding counts two and three in accord with the Commonwealth's offer. During the plea colloquy, the circuit court stated that it did not want to accept Chatman's guilty plea unless he not only waived his right to challenge the court's prior rulings in the case on suppression and other issues, but also waived his right to claim in post-conviction proceedings that his counsel was ineffective. Chatman agreed to do so, after opining that the odds of winning on an RCr 11.42 claim were about "10%." The circuit court accepted Chatman's guilty plea and sentenced him in accord with the Commonwealth's recommendations specified in its offer on a plea of guilty.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea "permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence." Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004). "The 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, 175 S.W.3d at 102 (internal quotation marks omitted).
Chatman subsequently moved to alter, amend or vacate the judgment against him, pursuant to RCr 11.42 and CR 60.02. The circuit court denied his motion.
Chatman now appeals, contending that: (1) the circuit court erred in concluding that the court held a proper hearing under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and that Chatman was not prejudiced by any deficiency in the hearing; (2) the circuit court erred in finding that trial counsel did not render ineffective assistance of counsel; and (3) the circuit court erred in denying Chatman's RCr 11.42 motion without holding an evidentiary hearing.
In Faretta, the United States Supreme Court held that a criminal defendant is entitled to represent himself at trial if, after conducting a hearing, the circuit court finds that the few exceptions to this rule of law do not apply.
II. ANALYSIS
A. RCr 11.42 ASPECTS OF CLAIMS
1. FAILURE TO HOLD FARETTA HEARING
Chatman moved to vacate the judgment against him pursuant to RCr 11.42. In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [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). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
Chatman first claims that the circuit court erred in concluding that the court held a proper Faretta hearing, and that Chatman was not prejudiced by any deficiency in the hearing. Chatman notes that when his motion for hybrid representation was initially granted, it was based upon Chatman's assertion that he just wanted to be able to file motions that he thought were necessary. The court warned Chatman of the dangers of self-representation and suggested that Chatman show his proposed motions to his attorney for approval and advice before filing them. The court then granted Chatman's motion for hybrid representation. However, Chatman claims that he filed fifteen motions without his counsel's signature prior to trial, and he also alleges that he "actively participated in or completely handled the hearings held in his case after he was appointed as co-counsel" on three different dates. He further asserts that on the opening day of trial, he gave an opening statement, although trial counsel questioned the witnesses that day. Chatman entered a guilty plea the next day.
Because, as part of his plea, Chatman waived his right to appeal, his RCr 11.42 proceeding was the first opportunity Chatman had to raise his claim regarding the Faretta hearing. Accordingly, this claim was properly brought in his RCr 11.42 motion.
Chatman alleges that the circuit court failed to hold a proper Faretta hearing and, therefore, the judgment against him should be vacated, pursuant to Faretta, McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L.Ed.2d 122 (1984), and Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).
In Grady v. Commonwealth, 325 S.W.3d 333 (Ky. 2010), the Kentucky Supreme Court discussed the cases cited by Chatman and the current state of the law concerning Faretta hearings:
The Sixth Amendment of the United States Constitution and Section Eleven of the Kentucky Constitution provide a defendant with the right to counsel. However, this Court and our federal counterpart have recognized that neither constitution prohibits the defendant from waiving this right. See Tovar, 541 U.S. 77, 124 S.Ct. 1379; Faretta, 422 U.S. 806, 95 S.Ct. 2525; Depp [v. Commonwealth], 278 S.W.3d 615 [(Ky.2009)]; [Commonwealth v.] Terry, 295 S.W.3d 819 [(Ky.2009)]. However, when a defendant exercises his right to waive the assistance of counsel, Faretta advisory obligations are triggered and a trial court must ensure that the defendant makes his waiver knowingly, intelligently, and voluntarily. Depp, 278 S.W.3d at 617 (citing Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004)). TheGrady, 325 S.W.3d at 341-42 (Italicization changed).
Faretta advisory obligations are likewise activated when a defendant invokes his right to hybrid counsel. Wake v. Barker, 514 S.W.2d 692, 697 (Ky.1974). In circumstances involving sole or hybrid pro se representation, the right to be warned of the general dangers that one will face when choosing to proceed pro se is a separate and independent right that accompanies the right to represent oneself in front of his jury in any manner. See Depp, 278 S.W.3d at 618 (where we recognized "that [the right to self-representation is] accompanied by the right to be informed by the trial court of the dangers inherent in doing so."); See also Wake, 514 S.W.2d at 697 (where we recognized a defendant's right to limited assistance of counsel per Section Eleven of the Kentucky Constitution). Thus, a trial court may honor a defendant's right to self-representation, but may then violate the defendant's right to be informed of the general dangers by failing to take the requisite steps mandated by Tovar, Faretta, and Depp.
The actions required of a trial court addressing a defendant's waiver of counsel, however, are not rigidly defined. In fact, as a result of the United States Supreme Court's holding in Tovar, 541 U.S. at 90, 124 S.Ct. 1379, this Court abandoned the brightline approach we embraced in Hill, reasoning that its strict requirements were antithetical to judicial economy and common sense. Depp, 278 S.W.3d at 618-19. Indeed, we supplanted Hill's inflexible requirements with a pragmatic approach whereby we simply question on appeal, in light of the entire record and on a case-by-case basis, whether the defendant's waiver of counsel was done knowingly, intelligently, and voluntarily. Terry, 295 S.W.3d at 820. Notwithstanding our abrogation of Hill's rigid approach, we have maintained and recognized that there are certain minimal determinations required of a court that faces an invocation of Faretta. See Depp, 278 S.W.3d at 619 (where we acknowledged that the United States Supreme Court requires constitutional minimums for determining whether a waiver is knowing and intelligent).
In particular, we noted in Terry that the trial court must ensure that the defendant is proceeding with "eyes open," and to do so "he must be warned specifically of the hazards ahead" and of the possible consequences of a decision to forgo the aid of counsel. See Terry, 295 S.W.3d at 822 (quoting Tovar, 541 U.S. at 88, 124 S.Ct. 1379) (emphasis added). Implicit in this determination of whether a defendant is proceeding with eyes open is the requirement that the court hold a Faretta hearing, as such a determination can rarely be made in passing or without consideration of case-specific factors such as the defendant's education, experiences, sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. Depp, 278 S.W.3d at 617 (quoting Tovar, 541 U.S. at 88, 124 S.Ct. 1379). To do less will result in structural error and will merit appellate correction. See Hill, 125 S.W.3d at 229 (citing Faretta, supra). See also McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). More importantly, a finding that the defendant is proceeding with eyes open cannot be made without sufficiently advising him of the dangerous grounds he asks to tread. Only when the defendant has been warned may a court determine that he proceeds with knowledge, intelligence, and of his own volition. But, again, we reiterate that a Faretta hearing, while required when a defendant invokes his Faretta rights, does not mandate that a court follow a script or employ magic words, but it does necessitate a finding that the defendant is proceeding with "eyes open"—that he gets a general warning of the dangers.
Based upon Grady, we find that Chatman was provided a proper Faretta hearing and that Chatman was proceeding with "eyes open." After Chatman filed his motion for hybrid representation, the circuit court discussed his reasons for the motion during a hearing. Chatman stated that he wanted to be able to file his own motions because his prior counsel refused to file certain motions on Chatman's behalf. The court asked Chatman's new counsel whether he had any objection to Chatman acting as co-counsel, and counsel stated that he did not. The court asked Chatman if he only wanted to file certain motions on his behalf, or if he also wanted to argue his case in court. The court informed Chatman that in the past, it had seen a pro se defendant do things and state things during trial that alienated the jury. Chatman replied that he just wanted to file motions and he wanted defense counsel to do everything else. The court suggested that Chatman ask his counsel to review any motions Chatman wished to file before filing them, to get counsel's advice and ensure that Chatman did not reveal anything or make some statement in his motions that could be used against him. Chatman responded that he would ask his counsel to review his motions. The court then granted his motion for hybrid representation.
Because Chatman was warned of the dangers of proceeding pro se, including warnings that he would run the risk of alienating the jury if he argued his case in court, and that statements he made in his motions could be used against him, Chatman proceeded with his hybrid representation with "eyes open." Therefore, the circuit court did not err in denying Chatman's RCr 11.42 claim that he was not provided a proper Faretta hearing.
Alternatively, we note, without deciding, that Chatman's Faretta hearing claim may nevertheless be moot. Although Chatman proceeded through the first day of trial with hybrid representation, he informed the trial court that he had consulted with his defense counsel about his guilty plea prior to entering it. Additionally, defense counsel signed the plea agreement with Chatman. Consequently, although Chatman filed and argued motions on his own behalf and gave an opening statement on the first day of trial, he subsequently was counseled regarding the entry of his guilty plea.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Chatman next alleges that the circuit court erred in finding that defense counsel did not render ineffective assistance of counsel. He bases this claim on his assertions that defense counsel failed to request or object to the court's failure to hold a Faretta hearing, and failed to seek a ruling from the circuit court regarding the kidnapping charges before advising Chatman to plead guilty.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (quotation marks omitted).
As for Chatman's first allegation that counsel rendered ineffective assistance in failing to request or object to the court's failure to hold a Faretta hearing, this claim lacks merit. As previously discussed, a proper Faretta hearing was held. Therefore, counsel could not have performed deficiently in the manner alleged by Chatman in this claim. Consequently, this claim lacks merit.
Chatman also contends that counsel rendered ineffective assistance in failing to seek a ruling from the circuit court regarding the kidnapping charges before advising Chatman to enter an Alford plea to those charges. Specifically, Chatman alleges that counsel should have sought a ruling regarding whether the "kidnapping exemption" was applicable to his case. The "kidnapping exemption" is set forth in KRS 509.050, and it provides:
Kentucky Revised Statute.
A person may not be convicted of . . . kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim's liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.
To the extent that Chatman argues in this claim that the kidnapping exemption applied and, accordingly, the evidence was insufficient to support his kidnapping convictions, "[t]he general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense." Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994) (citation omitted). Additionally, "an attack upon a verdict of conviction on the ground that it was not supported by the evidence is not one that can be presented by RCr 11.42." Boles v. Commonwealth, 406 S.W.2d 853, 855 (Ky. 1966).
Alternatively, to the extent Chatman's claim may be interpreted as a challenge to the validity of his Alford plea based upon the allegation that the plea was not voluntarily and intelligently entered, we disagree. Chatman's motion to enter an Alford plea stated that he had "fully discussed [with his attorney], and [Chatman understood] the charges and any possible defenses to them." The motion specified all of the rights Chatman was waiving by entering the plea and it stated that his attorney had fully discussed the charges and defenses thereto with Chatman.
Then, during his plea colloquy, the court asked Chatman if he had been coerced into entering an Alford plea, to which Chatman responded in the negative. The circuit court inquired whether Chatman had any "mental problems" at the time of his plea colloquy or in his past that would prevent him from making a good decision about whether to enter his plea, to which Chatman responded in the negative. The court asked if there was "anything else" that would prevent him from making a good decision about whether to enter an Alford plea, to which he responded in the negative. The court inquired whether Chatman was entering an Alford plea to the kidnapping charges because he believed that, at the trial's conclusion, it was likely the jury would find him guilty of the kidnapping charges, to which Chatman responded affirmatively. Finally, the circuit court noted that by entering an Alford plea, Chatman was waiving his right to appeal, and Chatman stated that he understood. Thus, based upon the plea colloquy and Chatman's motion to enter an Alford plea, we find that Chatman's Alford plea was entered voluntarily, intelligently, and knowingly. Consequently, his Alford plea was valid, and he cannot show that his counsel rendered ineffective assistance by allowing Chatman to enter the plea to the kidnapping charges. Thus, his ineffective assistance of counsel claim fails.
The circuit court also told Chatman that the court would not accept his guilty plea unless Chatman agreed to waive his right to bring an RCr 11.42 claim alleging that his attorney had rendered ineffective assistance. Chatman orally agreed to this, and the court accepted his guilty plea. In the present appeal, the Commonwealth contends that Chatman therefore waived his right to assert the present ineffective assistance of counsel claim. However, Chatman notes in his reply brief as follows:
The Kentucky Bar Association Board of Governors adopted KBA E-435, a formal advisory ethics opinion, that was published in the March 2013 edition of Kentucky Bar Association, Bench & Bar, Volume 77, Number 2. That ethics opinion addressed the ethical constraints on a defense attorney and prosecutor where the waiver of post-conviction claims is a part of the plea agreement. That opinion is not final and is currently pending before the Kentucky Supreme Court. See U.S., by and through the U.S. Attorneys for the E. and W. Dist. Of Ky. v. Ky. Bar Ass'n, Number 2013-SC-000270.
3. FAILURE TO HOLD EVIDENTIARY HEARING
Chatman also alleges that the circuit court erred in failing to hold an evidentiary hearing concerning his RCr 11.42 motion. Specifically, he contends that the court should have held a hearing concerning the claim that he raised in his motion (but he does not assert again on appeal) that trial counsel rendered deficient performance in refusing to impeach the main eyewitness's identification and description of the perpetrator. Chatman asserts that he claimed in his RCr 11.42 motion that
the main eyewitness gave a conflicting statement to the police right after the robbery that was inconsistent with her testimony at the suppression hearing. This statement
lis on a CD, tendered with discovery, which is not present in the record. Chatman assert[ed] in his pleading that the difference was that the eyewitness told the police just after the robbery in her audio-recorded statement that she could not see his nose, that it was covered by a mask. . . . Chatman contrast[ed] this with the testimony [the eyewitness] provided at the suppression hearing, where she testified she could see the perpetrator's nose and that was part of her basis for identifying Chatman. . . . The court specifically questioned the witness as to the ability to see the nose during the suppression hearing. . . . In the order denying the motion to suppress, the court found that the witness was able to see the perpetrator's nose. . . . Despite trial counsel having receiv[ed] a copy of this statement through discovery, [counsel] failed to use it to impeach the witness. The record does not contain a copy of this audio recording, so there is insufficient basis for the court to determine whether or not trial counsel was deficient in failing to impeach the witness, without holding an evidentiary hearing and providing Chatman the opportunity to present this evidence to the court for consideration.
Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ." However, in the context of this appeal, this issue is moot because Chatman does not challenge the circuit court's holding concerning the merits of this ineffective assistance of counsel claim; rather, he only alleges that the court should have held an evidentiary hearing concerning it. Thus, because Chatman did not appeal this claim on the merits he could not obtain any relief even if we were to remand for an evidentiary hearing concerning it. Therefore, it is moot.
As for the remainder of Chatman's RCr 11.42 claims that we addressed previously, because there were no material issues of fact that could not be determined from the face of the record, the circuit court was not required to hold a hearing regarding those claims.
B. CR 60.02 ASPECTS OF CLAIMS
Chatman also filed his motion to vacate in the circuit court pursuant to CR 60.02. On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id. "A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further alleges special circumstances that justify CR 60.02 relief." White, 32 S.W.3d at 86 (internal quotation marks and citation omitted).
In the present case, because all of Chatman's claims were raised in the RCr 11.42 part of his motion, they were not properly brought under CR 60.02. Therefore, we will not consider them under CR 60.02.
Accordingly, the order of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret Ivie
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
Because we find that Chatman's ineffective assistance of counsel claim nevertheless lacks merit, we need not address the alleged procedural bar to this claim.