Opinion
NO. 2011-CA-001039-MR
01-18-2013
BILLY MASH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 08-CR-00179
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: The issue before us is whether the McCracken Circuit Court erred in denying Appellant Billy Mash's motion to vacate his criminal conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without conducting an evidentiary hearing. Finding no error, we affirm.
Mash was indicted on April 25, 2008, for possessing drug paraphernalia and trafficking cocaine. Shortly thereafter, Mash moved to suppress evidence recovered pursuant to a warrantless search. At the suppression hearing, the Commonwealth called as witnesses two detectives - Matt Carter and Jesse Riddle; Mash did not call any witnesses.
Detective Matt Carter testified Mash's arrest was instigated by tips received from two incarcerated informants. The first informant, Brenda Taylor, was a drug dealer who had previously provided police with information leading to another arrest. She informed Detective Carter that Mash had sold her cocaine approximately fifty times in the past year; the most recent sale was in the previous week. The next day, a second informant, Olivia Dike, came forward with an independent yet corroborating tip. Dike informed Detective Carter that an African-American man named "Billy" was a cocaine trafficker who had sold her drugs on approximately fifty occasions. Dike positively identified a photograph of Mash as the man who had sold her drugs. Detective Carter confirmed Taylor and Dike did not know each other, and were held in separate jail cells.
As part of a sting operation, [Detective Carter] asked Dike to call [Mash] and place an order for cocaine to simulate an illegal drug transaction. Deputies from the police department taped the phone conversation in which the order was placed, and the [defense] played it for the [judge at the suppression hearing]. The recording begins with Dike greeting "Billy" and asking him to bring her an "eight ball." During the phone conversation, Dike did not explain what she meant by an "eight ball," nor did [Mash] ask what it was. [Detective Carter clarified] that an "eight ball" is slang for a 3.5 gram portion of cocaine.Mash v. Commonwealth, 2008-SC-000951-MR, 2010 WL 1005903, at *1 (Ky. Mar. 18, 2010). The circuit court ultimately denied Mash's motion to suppress. The case proceeded to trial.
[Mash] asked the caller who she was and Dike responded that she was "Olivia." He then asked where she was located and Dike simply responded that she was at her home. [Mash] said he could be there in 30 to 40 minutes.
Two police detectives were charged with tracking the delivery. Detective David Knight immediately went to [Mash's] home, where he reported a white Ford Ranger parked outside and identified Mash from a photograph he had been shown. Meanwhile, Detective Jesse Riddle headed to Dike's residence, where the transaction was agreed to take place. By the time Detective Riddle arrived at Dike's trailer park residence, there was already a white Ford Ranger moving toward Dike's trailer. Detective Riddle recognized the truck as resembling the one Detective Knight reported outside [Mash's] home and confirmed that the license plate matched as well. Detective Riddle was also able to identify [Mash] from photographs he had seen.
When [Mash] exited his truck and walked toward the trailer, Detective Riddle, without activating his blue lights, got out of his vehicle and identified himself. [Mash] appeared nervous and stated he was there to see Dike. Detective Riddle asked [Mash] if he had any weapons on him and [Mash] responded that he did not. Detective Riddle did not have his handcuffs [on his person], but told [Mash] to place his hands behind his back so Riddle could pat him down. . . . In patting [Mash] down, Riddle felt a large plastic baggie, along with an object that he perceived to be a wad of currency. He could not feel for certain what was in the plastic baggie, but . . . testified there was "a ninety-nine percent that it was going to contain cocaine based on the totality of the circumstances." Upon emptying [Mash's] pockets, Riddle turned out to be correct. The baggie contained 2.9 grams of cocaine and in the same pocket was $2,250 in cash. There was an additional $380 in another pocket. Detective Riddle then arrested [Mash], read him his Miranda rights, and took him to jail.
A jury convicted Mash of first-degree trafficking in a controlled substance, second offense, and possession of drug paraphernalia. He was sentenced to 365 days imprisonment on the possession conviction, and twenty-years imprisonment on the trafficking conviction, to be served concurrently for a total of twenty years. Mash filed a direct appeal to the Supreme Court as a matter of right. The Supreme Court affirmed the conviction. Mash v. Commonwealth, 2010 WL 1005903, at *8.
On April 21, 2011, Mash moved, pro se, to vacate his conviction pursuant to RCr 11.42 alleging ineffective assistance of counsel. Mash asserted his trial counsel was deficient in failing to: (1) file a motion to suppress an illegal wiretap; (2) subpoena favorable witness Brenda Taylor to testify in Mash's defense and, in turn, object to Detective Carter's hearsay testimony during the suppression hearing; and (3) object to an erroneous jury instruction. He also moved for an evidentiary hearing on his RCr 11.42 claims and for appointment of counsel. The Commonwealth opposed the motion. On May 6, 2011, the circuit court denied Mash's motion without conducting an evidentiary hearing. With respect to the Mash's claim that trial counsel failed to call Taylor as a favorable witness, the circuit court noted this claim "has not been substantiated or explained [and] [i]t is difficult to see how Brenda Taylor's imagined testimony would have affected the outcome of the case." This appeal followed.
Mash contends the trial court improperly ruled on his motion seeking RCr 11.42 relief without conducting an evidentiary hearing. He maintains his trial attorney's performance was deficient when counsel failed to subpoena Taylor to testify at the suppression hearing and trial, and he was prejudiced by counsel's ineffectiveness. Mash further asserts this claim of error could not be refuted by a simple review of the case file and record, but could only be determined by holding an evidentiary hearing. We disagree.
In his brief, Mash does not take issue with the circuit court's rulings regarding the wiretap and jury instruction.
A defendant is entitled to competent trial representation. U.S. Const. amend. VI; Fraser v. Commonwealth, 59 S.W.3d 448, 451 (Ky. 2001). A defendant who received ineffective assistance of trial counsel, and was thus deprived of this right, may collaterally attack his sentence pursuant to RCr 11.42. In so doing, RCr 11.42 demands the petition seeking relief "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." RCr 11.42(2).
To succeed on an ineffective assistance of counsel claim, the movant must first show his trial counsel's performance was deficient. Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). This requires "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[.]" Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Next, the movant must demonstrate trial counsel's deficient performance prejudiced the defense, i.e., but for counsel's errors, "the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068; Parrish, 272 S.W.3d at 169 (explaining the prejudice element requires a showing "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose results is reliable" (citation omitted)).
The crux of Mash's argument to this Court is that the circuit court denied his RCr 11.42 motion, and specifically his claim that counsel failed to subpoena a favorable witness, without an evidentiary hearing. A defendant seeking RCr 11.42 relief, however, does not have an unalienable right to an evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). Instead, a circuit court need only conduct an evidentiary hearing if (1) the movant shows the alleged error(s) is such that the movant would be entitled to relief under RCr 11.42, and (2) the motion raises an issue of fact that cannot be determined on the face of the record. Parrish, 272 S.W.3d at 166; RCr 11.42(5).
Further, to be entitled to an evidentiary hearing, the movant must articulate specific facts in support of his or her ineffective assistance of counsel claim(s). Stanford, 854 S.W.2d at 748 (emphasizing RCr 11.42 requires a specific statement of the facts on which a movant relies in support of a claim). This requires more than a mere "shotgun allegation of complaints." Id. Instead, the movant "must set out all of the facts necessary to establish the existence of a constitutional violation and the court will not presume facts omitted from the motion[.]" Sanders v. Commonwealth, 89 S.W.3d 380, 393 (Ky. 2002) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Where [an a]ppellant has failed to allege sufficient facts to constitute a deprivation of a substantial right, then the trial court should dismiss the claim. This is the essence of Stanford's command that "[w]ithout a minimum of factual basis, contained in the verified RCr 11.42 motion, the motion should be summarily overruled." In such instances, a movant clearly would not be entitled to an evidentiary hearing.Mills v. Commonwealth, 170 S.W.3d 310, 326-27 (Ky. 2005) overruled on other grounds by Leonard, 279 S.W.3d at 158-59. In sum, a conclusory allegation of ineffectiveness, i.e., an allegation lacking a supporting factual basis, regardless of whether the record, in fact, refutes that allegation, may be summarily dismissed without an evidentiary hearing. See Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011) ("The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977))); Haight v. Commonwealth, 41 S.W.3d 436, 443 (Ky. 2001) overruled on other grounds by Leonard, 279 S.W.3d at 158-59 (explaining "conclusory allegations which are not supported by particular facts do not justify an evidentiary hearing" and may be summarily dismissed).
Here, Mash asserts the grounds on which he is seeking RCr 11.42 relief - i.e., trial counsel failed to subpoena Brenda Taylor, a favorable witness, to testify at the suppression hearing and trial - but fails to assert any facts in support of that allegation. This claim was simply not presented with the degree of particularity required by RCr 11.42(2). Because Mash failed to establish a "minimum factual basis" in support of this ineffective assistance of counsel claim, he was not entitled to a hearing on this issue, and he was not denied a full and fair opportunity to present his claim. Stanford, 854 S.W.2d at 748. The circuit court did not err in disposing of this claim without an evidentiary hearing.
In any event, we are not persuaded that Mash can establish his trial counsel's decision not to subpoena Taylor to testify at the suppression hearing or trial would indeed entitle Mash to relief under RCr 11.42. See Parrish, 272 S.W.3d at 166 (explaining an evidentiary hearing is only mandated if the movant shows, inter alia, "the alleged error(s) is such that the movant would be entitled to relief under RCr 11.42"). As explained, a defendant is only entitled to RCr 11.42 relief if he or she establishes trial counsel's performance was deficient and such deficiencies prejudiced the defendant. Parrish, 272 S.W.3d at 168-69. If either element is lacking, the defendant's RCr 11.42 must be denied. See id. at 169.
Here, even accepting as true Mash's argument that his trial counsel was deficient in failing to call Taylor to testify at the suppression hearing, Mash failed to show a reasonable likelihood that Taylor's testimony would have changed the outcome of that hearing. That is, Mash failed to explain the basis upon which the circuit court would have suppressed evidence obtained by Detective Riddle following his pat down of Mash. On direct appeal, our Supreme Court, in affirming the denial of Mash's suppression motion, examined the propriety of Detective Riddle's warrantless pat down of Mash and, in turn, whether Detective Riddle had probable cause to arrest Mash. Mash, 2010 WL 1005903, at *2-3. In so doing, the Court, in discussing the probable cause element, noted "[t]he corresponding nature of the tips from two separate informants, that [Mash] had engaged in many cocaine transactions with each of them, served to verify one another's tip." Id. at 3. The Court further explained that:
Most importantly, Dike's claim to have regularly bought cocaine from [Mash] was strongly corroborated by their revealing telephone conversation. Through that conversation, [Mash] confirmed, albeit tacitly, that he (1) was familiar with the informant on a first-name basis, (2) knew where the informant lived, (3) knew what an "eight ball" was, and (4) was readily able and willing to deliver an "eight ball" to her. Dike's account of frequent transactions with [Mash] was further endorsed by [Mash's] quick arrival at her trailer and his admission to Detective Riddle that he was there to see "Olivia."Id. (emphasis added). In affirming the circuit court's denial of Mash's suppression motion, the Supreme Court seemingly afforded more weight to Dike's tip and subsequent involvement than the tip provided by Taylor. To that end, presuming Taylor would have testified at the suppression hearing and repudiated her statements to Detective Carter, in light of all the evidence presented, we are convinced sufficient evidence still existed from which the circuit court could conclude Detective Riddle had probable cause to arrest Mash and, in turn, conduct a warrantless pat down. Accordingly, trial counsel's alleged error, namely failing to subpoena Taylor to testify at the suppression hearing, would have made no difference in the outcome.
Moreover, Mash asserts, if properly subpoenaed, Taylor "would have given the jury [at trial] an account different than what was explained by Detective Carter who has testified to what he was allegedly told by Brenda Taylor." A review of the trial record, however, reveals Detective Carter made no mention of Taylor, her "tips" to law enforcement concerning Mash, or her role in this case. There was simply no testimony by Detective Carter at trial for Taylor to dispute. As a result, we cannot say trial counsel's decision not to call Taylor to testify at trial constituted ineffective assistance of counsel. See Williams, 336 S.W.3d at 50 (emphasizing "contentions that in the face of the record are wholly incredible" are "subject to summary dismissal").
For the foregoing reasons, we affirm the McCracken Circuit Court's May 6, 2011 order denying Mash relief pursuant to RCr 11.42.
ALL CONCUR. BRIEFS FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky