Opinion
NO. 2017-CA-000998-MR
04-27-2018
RONNIE WHALEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ronnie Whaley, pro se Fredonia, Kentucky BRIEF FOR APPELLEE: Andrew Graham Beshear Attorney General of Kentucky Thomas Allen Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NOS. 09-CR-00372 & 10-CR-00368 OPINION
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE: DIXON, D. LAMBERT AND MAZE, JUDGES. DIXON, JUDGE: Appellant, Ronnie Whaley, appeals pro se from an order of the Christian Circuit Court denying his RCr 11.42 motion seeking to set aside his convictions due to ineffective assistance of counsel. For the reasons set forth herein, we vacate several of Appellant's convictions and remand for a new trial in accordance with this opinion.
On November 29, 2011, Appellant was convicted by a Christian County jury of first-degree trafficking in a controlled substance (cocaine) while armed, possession of a handgun by a convicted felon, using restricted ammunition during a felony, possession of drug paraphernalia while armed, trafficking in marijuana under eight ounces while armed, first-degree wanton endangerment, and tampering with physical evidence. After the jury returned a guilty verdict on all charges, Appellant entered into a plea agreement wherein he agreed to waive his right to jury sentencing and to appeal the convictions in exchange for the Commonwealth's recommendation of a total thirty-year sentence as follows: twenty (20) years for first-degree trafficking in cocaine while in possession of a firearm; ten (10) years for possession of a handgun by a convicted felon; ten (10) years for using restricted ammunition during a felony; five (5) years for possession of drug paraphernalia in possession of a firearm; five (5) years for trafficking in marijuana under eight ounces while in possession of a firearm; five (5) years for first-degree wanton endangerment; five (5) years for tampering with physical evidence; and five (5) years for first-degree bail jumping All sentences were to run concurrently and were enhanced by virtue of Appellant being a first-degree persistent felony offender. Prior to the sentencing date, Appellant filed a pro se motion to withdraw his guilty plea on the grounds he was "actually innocent." Following a hearing, the motion was denied, and Appellant was sentenced accordingly.
We would note that although the record indicates that Appellant was convicted by a jury of possession of a handgun by a convicted felon, there was no instruction given to the jury on this offense and no finding of guilt.
Appellant was indicted for first-degree bail jumping and for being a first-degree felony offender in a separate indictment, 10-CR-00368.
On December 10, 2014, Appellant filed an RCr 11.42 motion alleging eleven instances of ineffective assistance of counsel. The motion was denied without an evidentiary hearing. Appellant thereafter appealed to this Court, raising only three of the eleven claims asserted in the trial court. Specifically, Appellant argued that his counsel was ineffective for failing to object to inadequate jury instructions, failing to properly prepare for the case to know the relevant law surrounding his charges and tender instructions accordingly, and failing to argue the "immediate control test" in relation to the firearm he was charged with possessing. This Court noted that the trial court, in denying Appellant's RCr 11.42 motion, only addressed seven of the eleven issues presented in that motion, with the three raised on appeal being among those not resolved. As such, this Court concluded that the trial court was required to rule on the three issues before we could undertake appellate review; therefore, we reversed and remanded for further proceedings. Whaley v. Commonwealth, 2015-CA-000774-MR (January 15, 2016).
Appellant did file a motion in the trial court to reconsider, wherein he brought to the trial court's attention its failure to rule on the three issues. Nevertheless, the motion was denied. --------
On May 8, 2017, the trial court entered an order denying Appellant RCr 11.42 relief on the remaining three issues, finding that he had failed to demonstrate that his counsel rendered ineffective assistance. Appellant again appeals to this Court as a matter of right.
In an RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of substantial rights that would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). An evidentiary hearing is warranted 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, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994); RCr 11.42(5). See also Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed2d 778 (1999). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), cert. denied, 540 U.S. 838, 124 S.Ct. 95, 157 L.Ed.2d 69 (2003), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Ineffective assistance of counsel is evaluated under the standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), adopted by this Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Strickland first requires that Appellant "must show that counsel's performance was deficient." 466 U.S. at 687, 104 S.Ct at 2064. This is done by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," or "that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S.Ct. at 2064. In applying the Strickland test, the Supreme Court noted, "Judicial scrutiny of counsel's performance must be highly deferential.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2065. Appellant is not guaranteed errorless counsel or counsel that can be judged ineffective only by hindsight, but rather counsel rendering reasonably effective assistance at the time of trial. Id.; see also Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001).
Next, Appellant "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, 466 U.S. at 687, 104 S.Ct at 2064. Or, as noted later in Strickland, "[t]he 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, 104 S.Ct. at 2068. A reviewing court must consider the totality of the evidence before the jury and assess the overall performance of counsel throughout the case to determine whether the specifically complained-of acts or omissions are prejudicial and overcome the presumption that counsel rendered reasonable professional assistance. Id. at 695, 104 S.Ct. at 2069; see also Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
Finally, "[u]nless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
There is a second aspect of review in this case in that Appellant did enter a guilty plea, albeit after the jury found him guilty of all charges. As such, any claim that he was afforded ineffective assistance of counsel requires him to show: (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 pled guilty. Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As he did in his prior appeal, Appellant argues in this Court that his counsel was ineffective for failing to (1) object to inadequate jury instructions; (2) properly prepare for the case, know the relevant law surrounding his charges and tender proper instructions; and (3) argue the "immediate control test" in relation to the firearm he was charged with possessing. Because we agree that counsel rendered ineffective assistance with respect to the jury instructions, we need not address counsel's failure to argue the "immediate control test." Having reviewed the record and instructions herein, we are compelled to agree with Appellant that that the jury instructions herein were prejudicially defective, and that counsel rendered ineffective assistance by failing to either object to the instructions or tender proper instructions.
It is a well-settled principle that in a criminal case, it is the duty of the trial court to instruct the jury on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony. RCr 9.54(1); Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954). A defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions. Hayes v. Commonwealth, 870 S.W.2d 786 (Ky. 1993). However, where the ineffective assistance of counsel claim is that counsel erred by failing to object to jury instructions, it must first be shown that the jury instructions were given in error. Parrish v. Commonwealth, 272 S.W.3d 161, 171 (Ky. 2008); Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999).
One of the instructions at issue provided:
INSTRUCTION NO. 7
FIRST-DEGREE TRAFFICKING IN A CONTROLLED SUBSTANCE, COCAINE, WHILE ARMED
You will find the Defendant guilty of First-Degree Trafficking in a Controlled Substance under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about the 15th day of April 2009, and before the finding of the Indictment herein, the Defendant had in his possession a quantity of cocaine;
B. That he knew the substance so possessed by him was cocaine;
AND
C. That he had the cocaine in his possession with the intent of selling, distributing, or dispensing it to another person;
OR
The language of Instruction No. 8, pertaining to trafficking in marijuana, was identical to that contained in Instruction No. 7. In addition, Instruction No. 9 was entitled, "Possession of Drug Paraphernalia, while armed."
D. That he solicited, commanded, aided, counseled, or attempted to aid or engaged in a conspiracy with Leah Torian to traffic in cocaine.
The Commonwealth sought to have Appellant's drug offenses enhanced under KRS 218A.992, the so-called "firearm enhancement statute," which provides:
Other provisions of the law notwithstanding, any person who is convicted of any violation of this chapter who, at the time of the commission of the offense and in furtherance of the offense, was in possession of a firearm, shall:The "in furtherance of" language was added to the statute following the Kentucky Supreme Court's decision in Commonwealth v. Montaque, 23 S.W.3d 629 (Ky. 2000), wherein the Court held that there must be a nexus between the underlying offense and the possession of the firearm:
(a) Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony; or
(b) Be penalized as a Class D felon if the offense would otherwise be a misdemeanor.
First, whenever it is established that a defendant was in actual possession of a firearm when arrested, or that a defendant had constructive possession of a firearm within his or her "immediate control when arrested," then, like under the federal sentencing guidelines, the Commonwealth should not have to prove any connection between the offense and the possession for the sentence enhancement to be applicable. However, the defendant should be allowed to introduce evidence to the contrary, which would create an issue of fact on the issue. Next, when it cannot be established that the defendant was in actual possession of a firearm or that a firearm was within his or her immediate control upon arrest, the Commonwealth must prove more than mere possession. It must prove some connection between the firearm possession and the crime.Id. at 632-33 (footnotes and citations omitted).
In Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003), our Supreme Court again enunciated the nexus requirement established in Montaque. In addition, the Court held that the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 2356, 147 L.Ed.2d 435 (2000), established that the Constitutional requirement that one must be found guilty by a jury of every element of the crime with which he was charged beyond a reasonable doubt, "applies to every fact, with the exception of a prior conviction, that increases the penalty for a crime beyond the statutory maximum." Johnson, 105 S.W.3d at434 (citing Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). Finding that KRS 218A.992(1) works such an increase in the statutory maximum, the Johnson Court noted,
The separate instructions on each of the controlled substance and paraphernalia possession charges correctly authorized the jury to find Appellant guilty only if it "believe[d] from the evidence, beyond a reasonable doubt" that Appellant committed the charged offense. However, the separate instruction on possession of a firearm contained no such provision. It only instructed the jury that:
You, the jury, will determine whether or not the Defendant was in possession of a handgun on July 18, 2000.
Appellant asserts that this instruction was inadequate to secure his constitutional right to be found guilty beyond a reasonable doubt. We agree. Apprendi, supra, required that the jury be instructed to find the facts necessary to apply KRS 218A.992(1) beyond a reasonable doubt just as they were instructed to find the existence of the elements necessary to prove the underlying offenses. Compare 1 Cooper, Kentucky Instructions to Juries (Criminal) § 9.34D, at 629 (4th ed. Anderson 1993) ("If you find the Defendant guilty under this Instruction, you will so state in your verdict and further state whether you believe from the evidence beyond a reasonable doubt that the Defendant was in possession of a firearm when he committed the offense.") (emphasis added).
The instruction also failed to allude to the "nexus" requirement. In Commonwealth v. Montaque, Ky., 23 S.W.3d 629 (2000), we held that KRS 218A.992(1) "requires a nexus between the crime committed and the
possession of a firearm." Id. at 632. "Mere contemporaneous possession of a firearm is not sufficient to satisfy the nexus requirement." Id. Here, however, the instruction simply required the jury to find that Appellant had possessed a handgun "on July 18, 2000." Thus, the jury could have found Appellant guilty on this open-ended count if it believed, e.g., that he had possessed a handgun at a target shooting range on the morning of his arrest. A proper instruction would have required the jury to find beyond a reasonable doubt the existence of some nexus between Appellant's possession of the pistol and each of the individual drug and paraphernalia possession charges; i.e., that Appellant possessed the firearm "in furtherance of" the underlying offenses. Compare Cooper, supra, at 629 (requiring the jury to also find beyond a reasonable doubt that the firearm was possessed by the defendant "when he committed the offense").Johnson, 105 S.W.3d at 435.
Subsequently, in Campbell v. Commonwealth, 260 S.W.3d 792 (Ky. 2008), the Kentucky Supreme Court, in concluding that the trial court properly denied the appellant's motion for a directed verdict on firearm enhancement, observed that the instruction at issue comported with the requirements of Apprendi:
We also note that the jury was properly instructed that it must find the elements of the firearm enhancement provision beyond a reasonable doubt. The jury instructions explicitly asked whether the jury found Campbell guilty of each drug offense and, in regard to each offense, whether the jury "believe[d] from the evidence beyond a reasonable doubt that the Defendant was in possession of a firearm when he committed the offense and in furtherance of the offense." This "in furtherance" language properly tracks the statute and, certainly, is more than adequate to fulfill the requirement
that a nexus between the firearm possession and the drug offense be shown. Furthermore, the jury was also instructed on the definition of a firearm with the exact language of KRS 237.060(2). So we find no fault with the jury instructions as to the firearm enhancement.Id. at 805 (footnotes omitted).
The fatal flaw in the instructions at issue herein is that while the phrase "while armed" appears in the heading of each instruction, nowhere within the language of the instructions was the jury required to find beyond a reasonable doubt that Appellant was in possession of a firearm at the time he committed the offense and in furtherance of the offense. In fact, there is absolutely no reference to Appellant being armed at the time of the offenses other than in the heading of each instruction.
Without question, an erroneous jury instruction can sometimes be an unfortunate, yet ultimately harmless error. See, e.g., Neder v. United States, 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (finding omission of element of offense in jury instruction harmless error); RCr 9.24. However, a party claiming that an erroneous jury instruction, or an erroneous failure to give a necessary jury instruction, bears a steep burden because we have held that "[i]n this jurisdiction it is a rule of longstanding and frequent repetition that erroneous instructions to the jury are presumed to be prejudicial; that an appellee claiming harmless error bears the burden of showing affirmatively that no prejudice resulted from the error." McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997). In McKinney, the Supreme Court cited to the decision in Louisville Railway Co. v. Lenehan, 253 Ky. 489, 69 S.W.2d 1017 (1934), which held:
The decided weight of authority is to the effect that the giving of erroneous instructions will be presumed to be prejudicial to appellant, and that the burden of proof rests on appellee to show affirmatively from the record that no prejudice resulted, and when an appellate court cannot determine from the record that a verdict was not probably influenced by an erroneous charge, the judgment will be reversed.Id at 1018 (citations omitted). Of course, that presumption can be successfully rebutted by showing that the error "did not affect the verdict or judgment." Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008) (citing 5 C.J.S. Appeal and Error § 968 (2008)). See also Emerson v. Commonwealth, 230 S.W.3d 563, 570 (Ky. 2007) (stating that an error is harmless if there is "no reasonable possibility it affected the verdict...."). But viewed through the proper procedural lens, it would be impossible to conclude that the erroneous instructions in the case at hand were harmless. The tainted instructions affected all of Appellant's convictions except for the first-degree wanton endangerment and tampering with physical evidence.
However, this action is before us on the denial of an RCr 11.42 motion. Although we are certainly persuaded that Appellant did not receive a fair trial because of the failure to instruct the jury on the whole law of the case, the question is whether counsel's representation fell below an objective standard of reasonableness and whether such failure prejudiced Appellant's case. We are compelled to answer both in the affirmative. Even viewing this case in the ineffective assistance of counsel standard applicable to guilty pleas, we must conclude that counsel made errors so serious that his performance fell outside the wide range of professionally competent assistance, and 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 Appellant would not have pled guilty and waived jury sentencing. See Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). Thus, under the circumstances presented to us in this case, we hold that the record establishes that Appellant's "conviction[s] . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Finally, unrelated to the merits of his RCr 11.42 motion, Appellant argues that the trial court erred in assessing him a $25 fee to file his first appeal and $100 fee to file the instant appeal. The Commonwealth concedes that both fees were required in error and that Appellant should be reimbursed. We agree. In fact, in our prior opinion, we noted that CR 3.02(1)(a) states that "[t]here shall be no filing fees for . . . proceedings under RCr 11.42," and ordered the trial court to refund Appellant the $25 filing fee. Accordingly, on remand, Appellant is entitled to a refund of both the $25 and $100 fees he was assessed to appeal his RCr 11.42 motion.
For the reasons set forth herein, Appellant's convictions for first-degree trafficking in a controlled substance (cocaine) while armed, using restricted ammunition during a felony, possession of drug paraphernalia, while armed, and trafficking in marijuana under eight ounces while armed are vacated and this matter is remanded for a new trial on those charges in accordance with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Ronnie Whaley, pro se
Fredonia, Kentucky BRIEF FOR APPELLEE: Andrew Graham Beshear
Attorney General of Kentucky Thomas Allen Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky