Opinion
NO. 2017-CA-000501-MR
03-30-2018
STEPHON SLONE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PERRY CIRCUIT COURT
HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 12-CR-00220 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND JONES, JUDGES. JOHNSON, JUDGE: Stephon Slone, ("Slone") appeals from the Perry Circuit Court's Order of February 15, 2017, denying his motion pursuant to Kentucky Rules of Criminal Procedure ("RCr") 11.42 alleging ineffective assistance of trial counsel. Slone also argues that he is entitled to relief pursuant to RCr 11.42 because his appellate counsel ineffectively represented him on his appeal to the Kentucky Supreme Court in Slone v. Commonwealth, 2013-SC-000446-MR, 2014 WL 5410289 (Ky. Oct. 23, 2014). After reviewing the record in conjunction with the applicable legal authorities, we AFFIRM.
BACKGROUND
Slone was tried and found guilty of rape in the first degree of a minor child. He was also convicted on a charge of being a persistent felony offender, second degree. Subsequent to his jury trial Slone was sentenced to a term of twenty years' imprisonment. He appealed his conviction to the Kentucky Supreme Court. On October 23, 2014, the Court issued an unpublished opinion affirming Slone's convictions. Slone, supra. In October 2015, Slone filed a pro se motion seeking to overturn his conviction pursuant to RCr 11.42, citing ineffective assistance of counsel. The Perry Circuit Court held an evidentiary hearing on December 2, 2016, at which only two witnesses testified, Slone and his attorney at the original trial, David Johnson ("Johnson").
Kentucky Revised Statutes ("KRS") 510.040.
KRS 532.080. --------
After hearing all evidence and arguments by both counsel, the court issued a ruling on February 15, 2017, in which it denied Slone's motion to set aside his conviction. It is from that order that Slone now appeals. In addition, Slone raises for the first time on appeal another RCr 11.42 issue, ineffective assistance of appellate counsel ("IAAC").
STANDARD OF REVIEW
A successful petition for relief under RCr 11.42 for ineffective assistance of counsel must survive the twin prongs of "performance" and "prejudice" provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
A "deficient performance" contains errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Second, the appellant must show that counsel's deficient performance prejudiced his defense at trial. "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." An appellant must satisfy both elements of the Strickland test in order to merit relief.Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). "A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance." Commonwealth v. York, 215 S.W.3d 44, 48 (Ky. 2007) (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). Appellate review of counsel's performance under Strickland is de novo. McGorman, 489 S.W.3d at 736 (citing Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky. 2007)).
ANALYSIS
Slone raises three issues on appeal. The first issue raised by Slone is based on his allegation that his attorney would not allow him to testify at trial. "The right of a defendant to testify on his own behalf is firmly established by the Fifth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution." Crawley v. Commonwealth, 107 S.W.3d 197, 199 (Ky. 2003). The court, after hearing from both Slone and his attorney, noted that Johnson was aware that Slone wanted to testify. But, Johnson testified he advised him not to do so more than once. Johnson also testified that he was aware that the decision was Slone's and not his. Johnson stated that his advice to Slone rested on Johnson's concern that he did not want Slone on the stand and subject to cross-examination about his previous felony conviction, and he felt the trial was going well for Slone at the time.
Kentucky courts have stated unequivocally that the right to testify is personal to the defendant in a case, and that it is the accused, not counsel, who must be "informed of the nature and cause of the accusation," and who ultimately decides whether to testify. Id. The court noted that Slone testified that his lawyer would not allow him to testify, but when considering the testimony of both Slone and Johnson, the court found that Slone had agreed with his attorney not to testify. Slone stated that if he were to testify at trial, his testimony would have been that he was good to all the children in the hollow, and that he did not commit the crime. Neither statement demonstrates that his testimony would have altered the final outcome of the trial.
While it is a fundamental right to testify in one's defense, the courts also recognize that in appropriate cases, one's right to testify may bow to accommodate other legitimate interests in the criminal trial process. Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987). His attorney's concerns as to Slone's prior felony conviction and the way in which the trial was proceeding were more than adequate to satisfy Johnson's trial strategy. It is not the function of a reviewing court to usurp or second guess counsel's trial strategy in an RCr 11.42 motion. York, 215 S.W.3d at 48. We decline to second-guess counsel's trial strategy here.
The second issue raised by Slone on appeal is his claim that he was seen by jurors in shackles and chains in a jail van while being transported after court back to jail in Leslie County. The court determined from testimony at the hearing that it was uncertain if Slone had informed his attorney of this at the time of the trial and what response, if any, his attorney had to the alleged occurrence. Regardless, Kentucky courts have "repeatedly held that the inadvertent viewing of the defendant in either handcuffs or another restraint for the sole purpose of being taken to or from the courtroom is not automatically reversible error." Moss v. Commonwealth, 949 S.W.2d 579, 583-84 (Ky. 1997). In addition, we have held that "a brief sighting by jurors of a defendant in restraints, shackles, or handcuffs, especially outside the courtroom, does not rise to the level of a constitutional violation." Harris v. Commonwealth, 2005-CA-000682-MR, 2006 WL 2033881 (Ky. App. July 21, 2006). The Kentucky Supreme Court noted that "it would be impossible as a practical matter to conduct a trial without the jury seeing some sign that the defendant [is] not entirely free to come and go as [he] please[s]." Shegog v. Commonwealth, 142 S.W.3d 101, 109 (Ky. 2004) (quoting Davis v. Commonwealth, 899 S.W.2d 487, 491 (Ky. 1995), overruled on other grounds by Merriweather v. Commonwealth, 99 S.W.3d 449 (Ky. 2003)).
The court found that it was questionable whether any juror actually saw Slone in shackles because any shackles would have been below the windows of the van. "[T]he trial court's factual findings and determinations of witness credibility are granted deference by the reviewing court." McGorman, 489 S.W.3d at 736. We decline to find error on this issue.
As the final issue raised by Slone concerning the IAAC, this issue was not presented to the trial court below and was only raised in Slone's supplemental and post-hearing brief. Under the dictates of Hollon v. Commonwealth, 334 S.W.3d 431, 439 (Ky. 2010), an issue of IAAC must first be raised before the trial court. Since the trial court has not ruled on Slone's claim of IAAC, this matter is not properly before us. Therefore, we are without authority to rule on Slone's IAAC claim. See Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011).
CONCLUSION
Based upon the foregoing, we AFFIRM the Opinion of the Perry Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky