Opinion
NO. 2014-CA-001027-MR
06-10-2016
TOMMY YORK SR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Thomas L. York, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 09-CR-00237 OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; COMBS AND JONES, JUDGES. ACREE, CHIEF JUDGE: Tommy York appeals the Kenton Circuit Court's decision summarily denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for post-conviction relief based on a claim of ineffective assistance of counsel.
York was convicted of first-degree burglary, first-degree robbery, and being a second-degree persistent felony offender. He was sentenced to a term of imprisonment of thirty years. He argues to this Court that his attorney was ineffective for advising him to decline a plea offer which would have resulted in a significantly shorter sentence than the thirty years he received following a jury trial. He also reasserts his request for appointment of counsel and an evidentiary hearing. After careful review of the record, we affirm.
I. Factual and Procedural Background
The underlying facts of this case were detailed as follows in an opinion of the Kentucky Supreme Court on direct appeal:
Luther Biggs was watching television at his home in Covington when he heard a knock at the door. He was greeted by three masked men. They pushed the door fully open and shoved Biggs back into the house. One of the men stabbed him in the chest with a knife and he fell to the floor. Another man kicked his head while the third man removed his pants.
Biggs recognized Appellant, Thomas York, Sr., by his voice. York grabbed Biggs and demanded money. Biggs responded that his only cash was in his wallet. After retrieving the wallet from Biggs' bedroom, York was unsatisfied and began poking Biggs with the knife. Biggs observed one of the masked men rummaging through a small bedroom, while another was ransacking the master bedroom. Eventually, the three intruders left the home, taking with them Biggs' prescription medication and $600 in cash.
Covington Police responded to the scene shortly after 10:00 p.m. Biggs identified York to the police, explaining that he recognized his unusual voice and short stature. York had recently been employed by Biggs, who
owned a roofing company. The officers found a mask in the neighbor's yard that evening. The following day, after returning home from the hospital, Biggs found a second mask in his bedroom.York v. Commonwealth, 353 S.W.3d 603, 605-06 (Ky. 2011).
York was arrested about three months later and charged with burglary in the first degree, robbery in the first degree, and being a persistent felony offender in the second degree. The case eventually proceeded to a jury trial. At trial, the defense denied that York was involved in the crime. York presented the testimony of his sister, who claimed that he was at her home on the night of the burglary. York was found guilty of all charges and sentenced to imprisonment for thirty years.
After the Supreme Court affirmed York's convictions, York filed an RCr 11.42 motion in Kenton Circuit Court. He also requested an evidentiary hearing and appointment of counsel.
In his RCr 11.42 motion before the trial court, York claimed the same error he presents on appeal - trial counsel misadvised him about the law and facts causing him to reject a favorable plea agreement - and six other claims of error. He also requested appointment of counsel.
On April 7, 2014, the trial court denied York's motion without an evidentiary hearing. The trial court determined that York had not shown any conduct by his attorney that fell below an objective standard of reasonableness. Further, the trial court concluded that York failed to demonstrate any prejudice from his own refusal to accept the Commonwealth's offer on a plea. York subsequently filed a motion to alter, amend or vacate the trial court's order, which the trial court denied. This appeal followed.
II. Standard of Review
To successfully assert a violation of one's right to effective assistance of counsel, a defendant must demonstrate "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
To qualify as deficient, counsel's performance must fall "below an objective standard of reasonableness" measured "under prevailing professional norms." Id. at 688, 104 S.Ct. at 2065. We recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id. at 689, 104 S.Ct. at 2065. Additionally, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time." Id.
If we determine that counsel's conduct was deficient, we must then consider whether it prejudiced the defendant. The prejudice inquiry assesses whether "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. at 2068.
When reviewing the trial court's denial of an evidentiary hearing on the merits of allegations raised in an RCr 11.42 motion, 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).
III. Analysis
On appeal, York argues that his trial counsel demonstrated his ineffectiveness as counsel when he erroneously advised him to reject a guilty plea offer from the Commonwealth that would have required him to serve only seven years' imprisonment. Instead, York's case proceeded to trial where he was found guilty and received a sentence of thirty years' imprisonment. York claims his counsel advised him that inconclusive DNA evidence and certain surveillance video would exonerate him, and the jury would not be able to find him guilty of the charged offenses. York argues this erroneous information rendered his counsel's representation constitutionally ineffective. We disagree.
A defendant has the right to effective assistance of counsel in considering whether to accept a plea bargain, and that if the right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence. Lafler v. Cooper, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). The inquiry involves "what risks were attendant to trial versus the benefits to be gained vis-à-vis a plea bargain, and counsel's conduct with respect to communicating these factors to the defendant." Osborne v. Commonwealth, 992 S.W.2d 860, 864 (Ky. App. 1998).
The Commonwealth's evidence against York consisted of a lab report regarding DNA from a mask allegedly worn by York during the robbery; a surveillance video purportedly showing York using a coin to cash machine (many coins were taken during the robbery); and the victim's statement in which he implicated York by voice identification.
According to the lab report, the DNA evidence was inconclusive. Further, according to York, he and trial counsel reviewed the surveillance video and concluded that it was not York in the video. The Commonwealth's remaining evidence was the victim's voice identification, which was based on the victim's short working relationship with York. Conversely, York's evidence consisted of a witness who would testify that the victim admitted to him that he was unsure if York was the perpetrator, and the testimony of York's sister who would claim that York was with her on the night of the incident.
Based on counsel's assessment of the Commonwealth's case and in light of York's proclamations of innocence, counsel advised his client that he could potentially be acquitted at trial. We cannot say this was unreasonable. Given the circumstances, perhaps counsel could have presented a persuasive argument to the jury, and York could have been found not guilty. "[A]n erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance." Lafler v. Cooper, 132 S.Ct. at 1391. There is nothing in the record to indicate that the advice given to York by his counsel was not "reasonably competent advice." Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002) (citation omitted).
Additionally, as the trial court points out in its order denying York's motion, York was well aware of the contents of the Commonwealth's offer. He was also aware that if he decided to reject the offer and proceed to trial, he was facing the potential consequence of life in prison if convicted. York made the decision to proceed to trial. This is not a case in which York was unaware of the potential risks or consequences he faced by going to trial nor was this a case in which York's counsel failed to act upon his client's desire to accept a plea offer. See Osborne, 992 S.W.2d at 863-4. Accordingly, we agree with the trial court that York has not shown any conduct by trial counsel which fell below an objective standard of reasonableness.
We need not address the prejudice component of the ineffective assistance inquiry because York has not established deficient performance by counsel. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ("there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.").
York further contends that the trial court erred in denying his motion without a hearing because his claims could not be refuted from the face of the record. He also asserts that he was entitled to the appointment of counsel to assist him with his post-conviction motion. Again, we disagree.
Not every claim of ineffective assistance is entitled to an evidentiary hearing. A trial court may deny an RCr 11.42 motion without any evidentiary hearing when the allegations in the motion can be resolved on the face of the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). However, the court "may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Id. at 452-53. An evidentiary hearing in this instance was unnecessary because York's claim that trial counsel inaccurately predicted York's chances of acquittal of the offenses charged, even if true, was insufficient to invalidate the conviction. Also, the trial court was able to resolve York's allegations by the evidence of record. In such a case, an evidentiary hearing is not required.
As for York's claim that he was entitled the appointment of counsel, we note that the constitutional right to appointed counsel does not generally extend to motions made pursuant to RCr 11.42. Id. at 451. Nonetheless, counsel must be appointed if requested when an evidentiary hearing is required. Id. at 453. Because York was not entitled to an evidentiary hearing on his motion, trial court was not required to appoint counsel.
IV. Conclusion
For the reasons stated above, we affirm the April 7, 2014 order of the Kenton Circuit Court denying York's motion pursuant to RCr 11.42 for relief from his conviction.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas L. York, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky John Paul Varo
Assistant Attorney General
Frankfort, Kentucky