Opinion
NO. 2017-CA-000354-MR
05-04-2018
KENYON POLLOCK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kelsey Doren Assistant Public Advocate LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van de Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 07-CR-003666 OPINION
AFFIRMING
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BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES. CLAYTON, JUDGE: Kenyon Pollock appeals from the Jefferson Circuit Court's February 16, 2016, and the October 24, 2016, orders denying his motion for post-conviction relief under Kentucky Rules of Criminal Procedure (RCr) 11.42. Kenyon's motion is based on a claim of ineffective assistance of trial counsel.
In the February 16th order, the trial court denied an evidentiary hearing on the issues of trial counsel's failure to object to a Persistent Felony Offender Second Degree charge and trial counsel's failure to investigate and prepare mitigating evidence at sentencing. But the trial court did allow an evidentiary hearing on the failure of Kenyon's trial counsel to object, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the Commonwealth's peremptory strike of a juror. After the hearing, the trial court denied Kenyon's RCr 11.42 motion on the Batson issue.
We affirm.
BACKGROUND
On November 13, 2007, Kenyon was indicted by a Jefferson County grand jury for murder and tampering with physical evidence. Kenyon was charged with murder for allegedly shooting Depeitro Bell in the back of the head with a handgun and causing his death. Further, the Commonwealth claimed that Kenyon hid the murder weapon, which was never recovered, and thus, also charged him with tampering with physical evidence.
Initially, Kenyon was represented by a public defender, but during the pendency of the case, he requested new counsel claiming that the public defender made racially-offensive remarks to him. The trial court appointed new counsel. Before the trial, the parties were unable to reach a resolution even though the Commonwealth offered Kenyon a plea deal of 25 years. Further, the day before the trial commenced, Kenyon was arraigned on the charge of PFO II.
The trial began on April 20, 2010, and the parties selected a jury. But after one day of trial, Kenyon asked to plea and entered a plea of guilty to murder and tampering with physical evidence. In exchange for the plea, the Commonwealth agreed to dismiss the PFO II charge and eliminate a life sentence from the range of sentencing options. The plea was an open one, that is, the parties agreed to give the trial court the discretion to impose a sentence between 20 and 50 years. The trial court conducted a colloquy pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and accepted Kenyon's plea of guilty.
Prior to the final sentencing, the parties tendered motions in support of a recommended sentence. In addition, Kenyon provided four letters in support of his motion for a sentence of 25 years. After hearing arguments and considering the written motions, the trial court sentenced Kenyon to a total of 50 years - 49 years for murder and one year for tampering with physical evidence - to run consecutively.
Next, Kenyon filed an appeal contesting his sentence and the payment of court costs. The Kentucky Supreme Court affirmed the sentence but remanded the issue of court costs to ascertain whether Kenyon was a "needy person."
This action culminated on May 14, 2013, when Kenyon filed, pro se, an RCr 11.42 motion. In the memorandum attached to the motion, he alleged nine complaints supporting the ineffective assistance claims. Kenyon also filed a motion for an evidentiary hearing. An assistant public advocate with the Kentucky Department of Public Advocacy was appointed to represent Kenyon.
The public advocate filed a supplemental RCr 11.42 motion and memorandum. Specifically, it alleged that Kenyon's counsel was ineffective for failure to object to the PFO II charge; ineffective for failure to investigate and prepare mitigation evidence for sentencing; and, ineffective for not making a timely Batson objection during voir dire. After review, the trial court, in its February 16, 2016, order, denied an evidentiary hearing on the first two claims but granted a hearing on the Batson issue, which concerned the Commonwealth's peremptory strike of an African American juror (Juror Number 21).
The hearing was held on July 28, 2016. Kenyon's trial counsel, the attorney for the Commonwealth, and Kenyon testified. On October 24, 2016, the trial court entered an order holding that the Commonwealth had provided a race-neutral, rational, and non-pretextual basis for striking Juror 21 and that Kenyon did not show any identifiable prejudice or that "but for" the alleged error, he would have gone to trial. Therefore, the trial court denied RCr 11.42 relief on the Batson issue. Further facts will be provided as necessary.
Kenyon appeals both the February 16, 2016, and the October 24, 2016, orders.
STANDARD OF REVIEW
The denial of an RCr 11.42 motion is reviewed for an abuse of discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted). Further, an RCr 11.42 motion is limited to the issues that were not and could not be raised on direct appeal. Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky. 1998), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Appellate courts examine counsel's conduct considering professional norms based on a standard of reasonableness. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Moreover, if the trial court held an evidentiary hearing, the reviewing court must determine whether the trial court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983). However, if an evidentiary hearing is not held, as in the PFO II enhancement in this case, our review is limited 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).
ANALYSIS
All defendants in criminal cases are constitutionally guaranteed effective assistance of counsel under the Sixth Amendment of the United States Constitution. To succeed on a claim of ineffective assistance of counsel, a movant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. To show such prejudice, a defendant must prove that counsel's errors were so serious that defendant was deprived of a fair and reliable trial. Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). The burden is on Kenyon to convincingly prove that he was deprived of this right. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968).
On appeal, Kenyon argues two instances in which his defense counsel was ineffective: when counsel failed to object to the PFO II charge and when counsel failed to make a timely Batson objection during voir dire. Additionally, Kenyon contended that the trial court should have conducted an evidentiary hearing on the PFO II.
In the matter at hand, Kenyon pled guilty. Consequently, to satisfy the claim of prejudice, he must demonstrate that "but for" counsel's performance, he would not have pled guilty and gone to trial instead. Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). A guilty plea is valid only when it is entered intelligently and voluntarily. Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001). Here, the record supports that the plea was both knowing and voluntary. Kenyon is not challenging the voluntariness of the plea but rather claiming that counsel's deficient performance affected the outcome of the plea process.
To assess the legitimacy of a guilty plea in an RCr 11.42 matter, the same two-part test found in Strickland applies. As explained, by the Kentucky Supreme Court,
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.Id. at 486-87 (citations omitted). Thus, Kenyon's burden is to prove that "but for" the actions of the counsel in the plea matter, he would have not have pled but insisted on going to trial. Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012).
We will first review Kenyon's challenges regarding the PFO II. Because the trial court did not grant an evidentiary hearing on this issue, the review is limited 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 (Ky. 1967).
PFO II
Kenyon maintains that the trial court erred by failing to provide an evidentiary hearing on his counsel's effectiveness based on his counsel failure to object to the institution of a PFO II charge the day before the trial was to begin. A hearing is required under RCr 11.42 only when there is an issue of fact that cannot be determined on the record alone. Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
The trial court decided that issues regarding the PFO II charge and counsel's effectiveness may be determined on the record itself. The record shows that the PFO II charge had no impact on the murder charge, which was the main charge, Kenyon faced. If he had not pled, he faced a potential sentence of life on the murder charge, which was not affected by the PFO II charge. A PFO is only applicable to the sentence for the tampering with physical evidence. The PFO II charge potentially could enhance a one-year sentence to an increase of five to ten years. By pleading, Kenyon erased any impact of the PFO II charge because, as part of his plea agreement, it was withdrawn. The terms of his plea also allowed the withdrawal of a possible life sentence. Kenyon's argument that had he gone to trial he might have received a lesser-included offense on the murder charge is purely speculative and not relevant to counsel's failure to object to the PFO II charge.
The Kentucky Supreme Court has interpreted the PFO statute as only requiring notice by the Commonwealth before the trial of the underlying substantive offense. Price v. Commonwealth, 666 S.W.2d 749, 750 (Ky. 1984). In other words, a defendant is only entitled to know of such a charge prior to the beginning of trial. Id. Kenyon received such notice. Furthermore, while the PFO II indictment occurred the day before the trial, Kenyon certainly had knowledge that such a charge was possible. Indeed, prior to the trial, his counsel proffered a motion in limine to preclude mention of his four felony convictions. After a hearing on the matter, it was stated on the record that the four felony convictions would be admissible at the sentencing hearing.
Moreover, although Kenyon's counsel could have objected or moved to dismiss this charge, nothing in the record provides any certitude that the trial court would have granted such a motion. Even if trial counsel had moved for a continuance, the trial court had discretion to grant or deny it. At this juncture, the trial court was aware that Kenyon was indicted in 2007, was being represented by his second counsel, and already had two continuances granted. It seems unlikely the trial court would have granted another continuance.
Additionally, Kenyon's claim that he would have immediately accepted the original 25-year plea had he known about the PFO II charge is pure conjecture and self-serving. His argument that the PFO charge changed everything is not persuasive. Kenyon was originally offered a plea of 25-years in 2009 and that plea was still available prior to the start of the trial. Keep in mind, he had no right to a plea or to a specific plea. The purview of plea agreements is under the discretion of the Commonwealth. Even after the original plea offer was not accepted, the Commonwealth made him a 35-year offer on the murder charge after the first day of the trial. He expressly rejected it. This rejection belies that knowledge of the PFO II would have caused him to plea immediately. In fact, Kenyon changed his mind and agreed to plead guilty only after jury selection, opening statements, and the testimony of three witnesses. This change of heart occurred not upon the PFO II indictment but only after a significant time to listen to the evidence against him.
In sum, Kenyon has not established under Strickland that counsel's performance was ineffective or prejudicial. First, in terms of the necessity of an evidentiary hearing on the PFO issue, we conclude that the issue was resolved by the record. Moreover, counsel is not ineffective for failing to make a motion that a trial court has the discretion to grant or deny. Although technically the PFO II indictment was issued just before the trial, the trial court determined that Kenyon had reasonable notice of his PFO status since the inception of the case. He knew about his prior felony convictions.
Further, in terms of the second prong of Strickland, prejudice to the defendant, the failure to object, make a motion for dismissal or continuance did not prejudice Kenyon because the outcome of Kenyon's case was unchanged. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish such prejudice requires much more evidence than mere self-serving statements by the defendant. Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012). Kenyon has not proven that "but for" counsel's actions on the PFO II charge, he would have insisted on accepting the original plea. Neither Kenyon's decision to plead guilty nor the terms of the guilty plea were prejudiced by his counsel's handling of the PFO indictment.
Batson challenge
Kenyon contends that his trial counsel's failure to raise a timely Batson challenge and to put the challenge on the record amounts to ineffective assistance of counsel, for which, he was prejudiced and ultimately compelled his guilty plea. An RCr 11.42 motion is limited to issues that were not and cannot be raised on direct appeal. Sanborn, 975 S.W.2d at 909. The burden is upon Kenyon to convincingly prove that he was deprived of a substantial right. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968).
Apparently, after voir dire, defense counsel accepted the jury, the remaining venire was dismissed, and the jury was sworn. But following jury instructions, counsel attempted to make a Batson objection. However, the trial court observed that the objection was not timely, and it would not consider it. Nonetheless, the trial court stated it would permit trial counsel to explain the reasons for its Batson challenge for the record. Kenyon's counsel did not put its reasons for such a challenge on the record.
The jury panel of 31 potential jurors consisted of eight African Americans. Kenyon is an African American. The Commonwealth moved to strike for cause seven African Americans, and the trial court denied the motion as to four jurors. The Defense struck three African Americans. The only African American juror not struck for cause by the Commonwealth, but instead struck by Commonwealth with a peremptory strike, was Juror Number 21.
The trial court granted the RCr 11.42 motion for an evidentiary hearing on counsel's ineffectiveness on the failure to make a Batson challenge. The hearing was held on July 28, 2016. Kenyon's trial counsel testified that his memory concerning the voir dire portion of the trial was not strong. He remembered that no minorities sat on the jury and that he made a Batson challenge after the jury was seated but, as noted, the challenge was untimely.
Next, Kenyon testified that although his recollection of the jury selection was "hazy," he became nervous when an all-white jury was seated. He maintained that if a Batson challenge had been made, even if denied, he would have still proceeded to trial.
The former Assistant Commonwealth Attorney, who represented the Commonwealth on the case, stated that he reviewed the trial tape prior to the evidentiary hearing as to the peremptory strike of Juror Number 21. The reasons for the peremptory strike were twofold. First, he testified that this juror was one of two potential jurors who had been seated on a jury the prior week, which had found a defendant "not guilty" on felony charges and convicted on misdemeanor charges. The Commonwealth also noted that another juror, who was white, was also peremptorily struck from this jury. Additionally, the Assistant Commonwealth Attorney explained that as a trial tactic, he preferred to use people who had not already served on criminal juries.
The trial court in its November 15, 2016, order observed that trial counsel's failure to raise a Batson challenge or put his reasons on the record may be ineffective or may be simply strategic. It noted that if counsel's assistance was ineffective, then Kenyon must confirm that the deficiency prejudiced him. The trial court reported that during voir dire, both parties questioned the panel as to prior service and verdicts reached in those trials. The Commonwealth would have known of jurors' service the prior week and results of those trials including an acquittal on felony charges. In this case, Juror Number 21 had served on a jury for a trial where the defendant was acquitted of felony charges and convicted of misdemeanor charges.
At the evidentiary hearing, the former Assistant Commonwealth Attorney clarified that he wanted jurors without prior experience on a criminal jury and that he knew about Juror Number 21's service in the previous trial wherein the defendant was acquitted on felony charges. Accordingly, the former Assistant Commonwealth Attorney moved peremptorily to strike this juror. Continuing, the trial court noted in its order that had the defense attorney challenged this juror at trial, the Commonwealth would have responded with this same information.
Ultimately, the trial court held that the proffered reason was race-neutral, and therefore, not pretextual. Further, the trial court determined that such reasoning was rational and contrasted this reasoning with Kenyon's assertion that he would have proceeded to trial even if the trial court had denied the Batson challenge. The trial court believed Kenyon's assertion was not rational because if convicted, Kenyon faced a life sentence. Further, the trial court opined that given his prior extensive criminal history and the weight of the evidence, removal of the option of a life sentence was significant. Consequently, the trial court held that Kenyon had not established that trial counsel's performance was deficient to the point of prejudice or that "but for" this claimed error, he would not have pled guilty.
Initially, we detect that Kenyon's two examples of ineffective assistance of counsel have a different impact on the actions he would have taken. He maintains that if he had known of the PFO II indictment sooner, he would have accepted the Commonwealth's original plea offer of twenty-five years. But regarding the claim of ineffective assistance of counsel in the failure to make a Batson claim, Kenyon vociferously maintains, regardless of outcome, he would have gone to trial.
Kenyon now argues that the trial court erred in holding that the use of the peremptory strike of Juror Number 21 was pretextual. He contends that the trial court did not explain its reasoning that it was not pretextual. Nonetheless, the trial court does note that the Commonwealth's reasoning was rational, and this explains the trial court's holding that the peremptory strike was not pretextual. Kenyon does not demonstrate that the reason was a pretext.
Further, Kenyon does not explain how he was clearly prejudiced by counsel's performance nor provide substantial evidence to support this claim. To succeed in demonstrating that he was prejudiced by counsel's deficient performance the errors must be so egregious as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Indeed, prejudice is found under this standard when the defendant has shown that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct 2052.
We believe that Kenyon has not met this burden and that the trial court did not err in its denying RCr 11.42 relief. Kenyon made conclusory claims that he would have gone to trial but never established that he would have fared better, or the outcome would have been substantially different. Nor does Kenyon show that had a Batson challenge been made, he would have succeeded in a direct appeal. To prevail in a RCr 11.42 action, Kenyon must provide more than speculative and conclusory statements. See Stiger, 381 S.W.3d at 230.
The record provides that there is overwhelming proof to support the charges against Kenyon in this egregious murder. Indeed, the murder was captured on a business surveillance camera video where two individuals are seen exiting a mini-van and one shoots the other in the back of the head. Kenyon owned a mini-van like the one in the video. And in the opening statement at the trial, Kenyon's counsel asserted that Kenyon did shoot the victim because he feared for his life and the safety of his family. Kenyon has a significant criminal history including four felony convictions. It is extremely unlikely that because of the actions of counsel in this matter, victory was snatched away. See Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000), overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005).
In sum, Kenyon did not have a viable defense to the serious charges against him, and no reason was provided that "but for" his counsel's actions, he would have fared better by going to trial rather than pleading guilty. If he had gone to trial, he faced the possibility of a life sentence and an even longer sentence for the tampering with physical evidence. The trial court did not abuse its discretion in denying Kenyon RCr 11.42 relief.
CONCLUSION
First, the record clearly refutes that Kenyon was prejudiced by his counsel's failure to object to the PFO II charge. And further, the trial court, after holding an evidentiary hearing, did not erroneously find that while the defense counsel's failure to make a Batson challenge may have been ineffective, its impact did not prejudice the defendant. There is no abuse of discretion.
We affirm the decision of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kelsey Doren
Assistant Public Advocate
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van de Rostyne
Assistant Attorney General
Frankfort, Kentucky