Opinion
NO. 2014-CA-000345-MR
02-27-2015
BROCK RILEY RAMEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brock Ramey, pro se Kentucky State Reformatory LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS FOUST, JUDGE
ACTION NO. 09-CR-00028
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; STUMBO AND TAYLOR, JUDGES. STUMBO, JUDGE: Brock Ramey appeals from an Order of the Calloway Circuit Court denying his RCr 11.42 motion which sought to vacate a Judgment based on ineffective assistance of counsel. After conducting an evidentiary hearing, the circuit court found no basis for concluding that Ramey's trial counsel was ineffective. It also found that most of the issues raised by Ramey in support of his claim were issues raised by counsel at trial and overruled by the court. We find no error, and AFFIRM the Order on appeal.
On June 15, 2010, the Calloway Circuit Court rendered a Judgment reflecting a jury verdict finding Ramey guilty of one count each of murder, first-degree burglary, first-degree assault, second-degree assault, second-degree wanton endangerment, and tampering with physical evidence. The charges arose from a home invasion occurring on October 21, 2008, in Calloway County, Kentucky, when Ramey entered the residence of Jerry Eldridge and fatally wounded him with a handgun. Ramey shot two other adults and attempted to shoot a 6 year-old boy in the head though the gun misfired. Ramey fled the scene and was apprehended by police in 2009.
A full recitation of the facts is set out at Ramey v. Commonwealth, 2011 WL 6826204 (Ky. 2011).
The matter proceeded to trial, which resulted in a finding of guilty on the aforementioned charges. Ramey was sentenced to life in prison on the murder conviction and 20 years in prison on the other charges to be served concurrently with the murder sentence.
In 2011, Ramey prosecuted a direct appeal to the Kentucky Supreme Court, wherein he argued that a pair of gloves introduced at trial were not properly authenticated, that evidence of prior bad acts was improperly admitted, and that the prosecutor made improper assertions during closing arguments. That appeal resulted in an Opinion affirming the conviction.
Thereafter, Ramey, pro se, filed an RCr 11.42 Motion seeking relief from Judgment based on his claim that he did not receive effective assistance of counsel at trial. Ramey asserted 12 areas of alleged ineffective assistance ranging from counsel's failure to adequately investigate the facts and the law, to counsel's failure to adequately conduct cross-examination. Ramey also claimed that his constitutional rights were violated by the Commonwealth's prosecutorial misconduct, which included the intentional leading of witnesses, making improper comments in violation of the ABA code of conduct, making prejudicial statements, violating rules of the Kentucky Supreme Court, and withholding exculpatory information.
Ramey was provided with counsel from the Department of Public Advocacy, and a hearing on Ramey's motion was conducted. On January 23, 2014, the Calloway Circuit Court rendered an Order denying the relief sought. In support of the Order, the court determined that it "simply heard no testimony from any witness which would suggest that defense counsel in this case failed to meet the standards regarding effective assistance of counsel as set out in Strickland v. Washington, 466 U.S. 668 (1984)." The court went on to conclude that though it was asserted that counsel could have conducted the defense differently, nothing even remotely suggested that the outcome of the trial would have been different but for counsel's actions. Finally, the court found that most of the issues raised by Ramey were actually areas in which counsel did address before the court but were overruled. In sum, the Calloway Circuit Court found no basis for granting the Motion to Vacate based on ineffective assistance. Thereafter, the Department of Public Advocacy was granted leave to withdraw its representation of Ramey, who now appeals pro se from the January 23, 2014 Order denying his RCr 11.42 Motion to Vacate.
Ramey now argues that the Calloway Circuit Court erred in denying his RCr 11.42 Motion to Vacate. He asserts a litany of alleged errors centering on the trial court's failure to conclude that Ramey did not receive the effective assistance of counsel to which he was entitled. Ramey claims that counsel failed to locate, interview and present the testimony of witnesses, failed to challenge DNA evidence, and did not investigate whether promises were made in exchange for testimony. Ramey also contends that counsel failed to seek criminal background checks, to move to suppress evidence, and to investigate motives for providing false testimony. He argues that these errors, taken individually or collectively, denied him the right to counsel and a fair trial to which he was entitled and that the Calloway Circuit Court erred in failing to so rule. He seeks an Opinion reversing the Order on appeal, and remanding the matter for another hearing.
To prevail on a claim of ineffective assistance of counsel, a movant 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, 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. (Internal citation omitted).Id. at 691-692. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "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." Id. at 694. 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).
We have closely examined Ramey's claims of error, and find no basis for reversing the Order on appeal. Ramey asserts numerous instances of alleged ineffective assistance, but provides little or no factual basis nor legal authority in support of these claims. For example, though Ramey now contends that his trial counsel failed to interview certain witnesses, such as the Commonwealth's chief witness David Phillips, Ramey did not elicit any testimony at the hearing as to why Phillips was not interviewed. Additionally, Ramey never questioned his counsel as to why several other individuals were not interviewed. Ramey also asserts that his counsel failed to investigate a DNA sample, but never asked his counsel anything at the hearing about the DNA evidence thus rendering the record void of any support on this issue. Finally, Ramey did not produce any factual or legal basis at the hearing which would support his argument that counsel failed to compel complete disclosure of witness backgrounds, whether promises had been made in exchange for testimony, and that counsel should have moved to suppress evidence.
Ultimately, Ramey has produced a litany of unsupported, conclusory allegations which were properly addressed at the hearing and in the Order on appeal. The burden rests with Ramey to demonstrate that counsel made errors so egregious that counsel did not serve as "counsel" for purposes of the Sixth Amendment, Strickland, supra, and that there is a reasonable probability that but for counsel's unprofessional errors the result of his trial would have been different. Id. Ramey has not met this burden, and has not demonstrated that but for the alleged error the outcome of his trial would have been different. The Calloway Circuit Court properly so concluded, and we find no error.
For the foregoing reasons, we AFFIRM the Order of the Calloway Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Brock Ramey, pro se
Kentucky State Reformatory
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky