Gallman v. Commonwealth

Full title: CARLTON TODD GALLMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Feb 15, 2013

NO. 2011-CA-001767-MR (Ky. Ct. App. Feb. 15, 2013)

Opinion

NO. 2011-CA-001767-MR

02-15-2013

CARLTON TODD GALLMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Linda D. Bullock Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky

STUMBO

NOT TO BE PUBLISHED

APPEAL FROM BOYD CIRCUIT COURT

HONORABLE C. DAVID HAGERMAN, JUDGE

ACTION NO. 02-CR-00079

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Carlton Gallman appeals from an order of the Boyd Circuit Court denying a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion alleging ineffective assistance of trial counsel. We find no error and affirm.

This case has previously been before this Court; therefore, we will use the prior panel's recitation of relevant facts.

Shortly after midnight on February 11, 2002, Trooper Greg Virgin pulled in behind a 1986 Ford Mustang traveling about 45 miles per hour in a 35 mile-per-hour zone on a rainy night in a residential area. After Trooper Virgin fell in behind the car, it began to increase speed to about 50 miles per hour. When the vehicle turned, Trooper Virgin activated his blue lights, and the car then sped up to about 55 miles per hour. As Trooper Virgin continued behind the car with his blue lights on, the car did not stop. Instead the driver crossed some railroad tracks and turned again, this time onto a winding road with a speed limit of 25 miles per hour. According to Trooper Virgin, the car then, while traveling at about 45 or 50 miles per hour, "flew" through a stop sign and made a quick left turn. At this point, other police were called as backup to pursue the vehicle. With Trooper Virgin continuing to give chase, the car "blew" through another stop sign at a three-way intersection and thereafter crashed into a ditch. Trooper Virgin testified that the driver of the car immediately got out of the car and began running away. Trooper Virgin then began chasing the driver on foot.
As Trooper Virgin ran after the driver, he suddenly felt a sharp pain in his left upper thigh and fell to the ground, no longer able to chase the man. A second police officer, Deputy Howard, arrived on the scene and witnessed the car plow into the ditch and Trooper Virgin falling to the ground in his attempt to catch the fleeing driver. The driver ultimately got away.
After the crash, the police discovered that two passengers had been in the car during the chase. Roger Wilson was found in the back floor of the car and later taken to the hospital for a head injury, although there was no evidence adduced at trial regarding the seriousness of that injury. A second passenger, Richard Grubb, was apprehended by Deputy Howard at the scene.
On March 9, 2002, appellant, Carlton Gallman, was arrested and charged with first-degree fleeing or evading police and PFO I. Gallman thereafter gave a statement admitting he was the driver of the car on the night in
question. Pursuant to a jury trial, Gallman was convicted of both charged offenses and sentenced to ten years' imprisonment.

Gallman v. Commonwealth, 2004 WL 2011401, 1 (Ky. App. 2004). This conviction was affirmed on direct appeal.

After the criminal complaint was filed and prior to trial, Brian Hewlett of the Boyd County Public Defender's Office was appointed to represent Gallman. Hewlett began negotiating a plea agreement with the Commonwealth, but before the agreement could be finalized, the relationship between Hewlett and Gallman broke down. Gallman became paranoid and believed Hewlett was working as an agent for the Commonwealth. Gallman refused to cooperate with Hewlett. Hewlett then moved to withdraw as counsel. Gallman was appointed a new attorney, Jerry Vincent, who did not work for the Public Defender's Office.

On August 21, 2006, Gallman filed the underlying RCr 11.42 motion alleging that he received ineffective assistance of counsel when his trial counsel did not pursue a mental evaluation of his competency to stand trial. Gallman alleged Vincent should have realized Gallman had mental problems and may not have been competent to stand trial. As evidence to support this argument, he cites to the fact that while awaiting trial, he threatened to beat his head against the wall of his cell at the Boyd County Detention Center. He began acting out to the point that he was transferred to a behavioral unit at the King's Daughters Medical Center where he was released the next day.

An evidentiary hearing was held on the motion. Gallman's trial counsel had died prior to the hearing and was unable to testify. Hewlett testified at trial, along with Gallman and the Commonwealth Attorney who prosecuted the case. The trial court ultimately denied the motion. This appeal followed.

To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Strickland, 466 U.S. at 691-692, 104 S.Ct. at 2066-2067 (citations omitted). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. "The 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." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Additionally, "a hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-744 (Ky. 1993).

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Strickland, 466 U.S. at 689-690, 104 S.Ct. at 2065-2066 (citations omitted).

The prosecution of a criminal defendant who is incompetent to stand trial is a violation of due process of
law under the Fourteenth Amendment. Thompson v. Commonwealth, 56 S.W.3d 406, 408 (Ky. 2001). Further, the competency to plead guilty and the competency to stand trial are identical. Id. Incompetency to stand trial is defined as where, because of a mental condition, the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him or to participate rationally in his own defense. KRS 504.060(4).

Smith v. Commonwealth, 244 S.W.3d 757, 760 (Ky. App. 2008).

Gallman alleges his counsel was deficient for not having his competency evaluated. He claims there were warning signs as to his competency, such as his time in the King's Daughters Medical Center behavioral unit and his paranoid behavior toward Hewlett, his public defender. We find this is insufficient to hold Gallman's trial counsel ineffective for not requesting a mental competency evaluation.

Even if Gallman's paranoia toward his public defender was irrational, mental impairment or disorders do not per se render someone incompetent to stand trial. Bray v. Commonwealth, 177 S.W.3d 741 (Ky. 2005) (overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)); Sands v. Commonwealth, 358 S.W.3d 9 (Ky. App. 2011). Additionally, there was sufficient evidence presented at the RCr 11.42 hearing to show that Gallman was competent. Hewlett testified that it was not uncommon for defendants to be suspicious of their public defenders. Hewlett also testified that even though Gallman was acting paranoid, he understood what was going on and knew the role of the participants of the trial. Hewlett also testified that Gallman was formulating his defense and had ideas as to whom to call as witnesses. This testimony shows that Gallman was capable of assisting counsel with his own defense, but was unwilling to specifically cooperate with Hewlett.

Gallman's own testimony also supports our belief that he was competent to stand trial. He testified that he understood the participants and the criminal trial process. He also testified that his behavior was due to his being an "idiot kid" and taking the advice of other inmates who told him that the plea deal Hewlett was working out with the Commonwealth was bad and not in his best interest.

Lastly, as the trial court pointed out in its order, Gallman testified on his own behalf at the criminal trial. Gallman testified that when the police car pulled behind him, he got scared and sped away. For a time, he did not explain why he was too scared to pull over for the police officer. Finally, he admitted that he did not stop for the police because he had consumed two or three beers and the tags on the car did not go to the car. During his cross-examination at trial, Gallman answered every question in a manner that tried to deflect responsibility from him. Gallman's ability to testify on his own behalf is very illustrative of his competence.

For the foregoing reasons, we find that the trial court properly denied Gallman's RCr 11.42 motion. Gallman's trial counsel was not ineffective for failing to request a competency evaluation. The evidence shows that Gallman understood the nature of the proceedings against him and was able to participate in his own defense. Gallman's counsel did not have reasonable grounds to believe Gallman's competency was at issue; therefore, we affirm the trial court's judgment.

ALL CONCUR. BRIEF FOR APPELLANT: Linda D. Bullock
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky