Opinion
NO. 2015-CA-001694-MR NO. 2015-CA-001695-MR
05-25-2018
ANTHONY S. PEAK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Anthony Scott Peak, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NOS. 10-CR-00001 & 10-CR-00014 OPINION
AFFIRMING
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BEFORE: COMBS, J. LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: Anthony S. Peak, pro se, has appealed from the Edmonson Circuit Court's denial of his motion for post-conviction relief pursuant to RCr 11.42 without first convening an evidentiary hearing. He has also appealed the denial of his motion to hold the Edmonson Circuit Court Clerk in contempt. Following a careful review, we affirm.
Kentucky Rules of Criminal Procedure. --------
Peak was indicted on forty counts of incest, forty counts of unlawful transaction with a minor in the first degree, twenty counts of rape in the first degree and twenty counts of sodomy in the first degree, all Class B felonies. The charges stemmed from an illicit sexual relationship with his biological daughter, resulting in the birth of a child. In a separate indictment, Peak was charged with one count of theft by unlawful taking over $500, a Class D felony.
Following plea negotiations, Peak moved to enter a guilty plea to the theft charge and one count each of the amended charges of rape in the second degree and sodomy in the second degree, both Class C felonies; the remaining counts were dismissed. In exchange for his plea, the Commonwealth recommended sentences of ten years on the rape, seven years on the sodomy, to be served consecutively, and two years on the theft to be served concurrently for a total sentence of seventeen-years' imprisonment.
The trial court conducted a lengthy and thorough plea colloquy in which it explained the charges and recommended sentences, inquired of Peak's satisfaction with his counsel's advice, and confirmed Peak was not being forced or coerced into entering his plea. After a detailed discussion among the trial court, the Commonwealth's Attorney, Peak and defense counsel regarding the theories underlying the charges, Peak was permitted time to confer privately with counsel before admitting his guilt of the charged crimes. The trial court accepted Peak's plea and sentenced him in accordance with the Commonwealth's recommendation.
Nearly three years later, Peak filed motions to vacate his convictions and sentences asserting a myriad of vague and unsupported claims of ineffectiveness of trial counsel. He also requested pauper status, appointment of counsel, and an evidentiary hearing. The trial court summarily overruled Peak's motions, finding none was well taken. Peak's subsequent motion to hold the Edmonson Circuit Court Clerk in contempt "for failure to do her job" was also denied. These consolidated appeals followed.
Initially, we note Peak has presented no argument related to his appeal from the denial of his motion to hold the Edmonson Circuit Court Clerk in contempt. As such, we must conclude he has abandoned any claims related to this denial and no further discussion is warranted.
On his remaining claims, Peak appears to argue the trial court erred in failing to convene an evidentiary hearing and persists in asserting trial counsel was ineffective. Because an evidentiary hearing was not held, "[o]ur review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
In Padilla v. Commonwealth, 381 S.W.3d 322, 328 (Ky. App. 2012), this Court concluded in the context of a guilty plea the proper inquiry for a claim of ineffective assistance of counsel is whether counsel made errors so serious that his performance fell outside the wide range of professionally competent assistance, and whether a reasonable probability exists that, but for those errors, the defendant would not have pled guilty and would have instead insisted on going to trial. "A reasonable probability exists if the defendant convinces the court that a decision to reject the plea bargain would have been rational under the circumstances." Id. (internal citations and quotation marks omitted). "Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have rejected the plea offer and insisted on going to trial." Id. at 329. While "[s]olemn declarations in open court carry a strong presumption of verity[,]" Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990) (citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)), "the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken[.]" Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). A reviewing court must strongly presume counsel's challenged conduct falls within the range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Peak bears the burden of overcoming this strong presumption by identifying specific acts or omissions constituting a constitutionally deficient performance. Id.
After reviewing the record, we agree with the trial court's determination the errors set forth in Peak's motion do not individually or cumulatively rise to the level of ineffective assistance of counsel. Peak has failed to convince this Court counsel's performance was deficient, or that absent those deficiencies, he would have rationally rejected a seventeen-year-sentence and proceeded to trial where he could have been sentenced to seventy years' imprisonment. Peak's assertions of ineffectiveness are self-serving, rambling, conclusory and lack specificity. We will not search the record to make an argument for a party or find support for its contention. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citations omitted). Further, failure to comply with the specificity requirement of RCr 11.42(2) is fatal. "Conclusory allegations that counsel was ineffective without a statement of the facts upon which those allegations are based do not meet the rule's specificity standard and so 'warrant a summary dismissal of the motion.'" Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (quoting RCr 11.42(2)). We discern no error.
For the foregoing reasons, the judgment of the Edmonson Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Anthony Scott Peak, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky