Opinion
NO. 2016-CA-001245-MR
01-11-2019
MARK YARMEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Maureen A. Sullivan Louisville, Kentucky BRIEF FOR APPELLEE: Andrew G. Beshear, Attorney General of Kentucky Leilani K. M. Martin Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 08-CR-001191 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: Mark Yarmey argues for post-conviction relief under RCr 11.42 and CR 60.02. Yarmey was convicted of using a minor in a sexual performance. After review, we affirm the Jefferson Circuit Court's order denying the motions.
Judge Debra Hembree Lambert authored this opinion prior to her accepting election to the Kentucky Supreme Court effective January 7, 2019.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
I. BACKGROUND
Most of the facts relevant to this appeal were set forth in Yarmey v. Commonwealth, 2010-CA-000604-MR, 2011 WL 6743294 (Ky. App. Dec. 22, 2011), Yarmey's direct appeal to this Court. A jury convicted Yarmey of the underlying sexual offense after hearing evidence that he took nude photographs of an 11-year-old girl with a Polaroid camera. Yarmey also faced a first-degree sodomy charge based on other allegations, but was not convicted.
At trial, both Yarmey and the alleged victim testified. A Polaroid camera seized from Yarmey's home was also introduced into evidence, along with seven photographs. Yarmey admitted he had taken the photographs using the seized Polaroid camera. Also, while handling the camera in the courtroom, Yarmey's trial counsel apparently discovered for the first time that there was still enough film in the camera to take three more photos. His trial counsel subsequently stipulated that the camera had been loaded with a film pack containing ten photos.
After deliberation, the jury found Yarmey guilty of using a minor in a sexual performance. The jury did not reach a verdict, however, as to the first-degree sodomy count. Rather than proceed to the sentencing phase of the trial, Yarmey entered a conditional plea agreement wherein he accepted a 15-year prison sentence.
In his direct appeal, a panel of this Court affirmed several of the circuit court's evidentiary findings relating to the prosecuting witness's sexual history and to the photographs. This Court held that the evidence relating to the witness's sexual history was properly excluded and that the photographs were properly admitted. The panel also affirmed the circuit court's refusal to give a limiting instruction with respect to the photographs. Yarmey did not file a motion for discretionary review.
Instead, Yarmey filed a pro se CR 60.02 motion, and later, a motion under RCr 11.42. He also requested an evidentiary hearing, which was ultimately granted. Not long thereafter, Yarmey retained new counsel and filed a second RCr 11.42 motion, arguing ineffective assistance by his trial counsel.
In his second post-conviction motion, Yarmey mainly complained that his trial counsel failed to adequately investigate whether the camera still contained film and whether the prosecuting witness required psychological testing due to suspected sexual trauma. Yarmey also claimed his trial counsel was rendered ineffective by the prescription medications he was taking during the trial and because Yarmey testified in his own defense. Finally, Yarmey asserted his plea agreement was not knowingly and voluntarily entered because his counsel failed to adequately explain the consequences of the agreement.
Following the aforementioned evidentiary hearing, the circuit court denied Yarmey's motions. The circuit court held that several of his arguments either were, or should have been, raised on direct appeal. The circuit court also held that the remaining issues did not present a valid claim of ineffective assistance simply because Yarmey's trial strategy did not achieve a desired outcome. This appeal followed.
II. STANDARD OF REVIEW
Whether counsel was unconstitutionally ineffective requires an examination under the two-pronged test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show that his counsel's performance was deficient, and that the deficiency prejudiced him. Id. at 687. In evaluating counsel's performance, reviewing courts must only "look to the particular facts of the case and determine whether the acts or omissions were outside the wide range of professionally competent assistance to the extent that the errors caused the adversarial testing process not to work." Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998) (citations and internal quotations omitted). Second-guessing trial strategy with the benefit of hindsight is to be avoided. Id. at 317.
As for relief under CR 60.02, this is an extraordinary remedy, reserved to raise issues that cannot be raised in other proceedings. McQueen v. Commonwealth, 948 S.W.2d 416. It "is not intended merely as an additional opportunity to relitigate the same issues which could 'reasonably have been presented' by direct appeal or RCr 11.42 proceedings." Id. (quoting RCr 11.42(3) and citing Gross v. Commonwealth, 648 S.W.2d 853, 855-56 (Ky. 1983)).
III. DISCUSSION
On appeal, Yarmey reasserts his arguments from the trial level. He begins by generally claiming his trial counsel failed to adequately investigate the case. Yarmey then presents two reasons why the investigation was insufficient: (1) because counsel did not discover that the Polaroid camera contained additional film until trial; and (2) because his counsel did not thoroughly investigate the prosecuting witness's prior sexual history. Had his counsel thoroughly investigated, Yarmey argues, his counsel might have discovered exculpatory evidence and been able to request that the witness undergo a psychological examination regarding her status as a rape victim. For the following reasons, we disagree.
The prosecuting witness testified by avowal she had been raped by a separate perpetrator while in Florida, years after the encounter with Yarmey.
"[A] constitutionally effective criminal defense requires trial counsel reasonably to investigate the circumstances of the alleged crime." Herp v. Commonwealth, 491 S.W.3d 507, 511-12 (Ky. 2016). The investigation must have been reasonable under the circumstances of the representation rather than under ideal circumstances. Commonwealth v. McGorman, 489 S.W.3d 731, 743 (Ky. 2016).
Here, by testifying that the Polaraid camera seized from his residence and introduced into evidence was the one he used to take seven photographs of the prosecuting witness, Yarmey, by admission, allowed the evidence remaining in the camera to be presented to the jury. See Thomas v. Commonwealth, 153 S.W.3d 772, 780 (Ky. 2004) (testimony from defendant's mother as to residue on a Mountain Dew bottle was sufficient to link the bottle to the crime). Moreover, since the remaining film was expended without producing any exculpatory evidence, there was no demonstrated prejudice to Yarmey's defense. Yarmey's trial counsel did not act unreasonably regarding the Polaroid camera, nor did any prejudice result from counsel's performance, assuming counsel had acted unreasonably. Accordingly, Yarmey's allegations did not entitle him to relief.
Likewise, Yarmey's trial counsel did not act unreasonably with respect to the witness's sexual history. The events in this case occurred before the witness's twelfth birthday. Although she testified by avowal that she was later raped by another perpetrator in another state, that act apparently occurred several years after Yarmey took the photographs. Declining to ask for a court-ordered psychological evaluation based on unrelated events that occurred several years after those at issue is precisely the kind of strategic decision this Court will not criticize on appellate review.
As a second claim on appeal, Yarmey argues his trial counsel should have attempted to bypass Kentucky's Rape Shield Law by relying on the prosecuting witness's avowal testimony that she was raped years after the photographs were taken. From Yarmey's perspective, his counsel's failure to make this argument was unconstitutionally deficient because he could have hired an expert to testify that the prosecuting witness was transferring the emotional injury caused by the rape to the incident with Yarmey. We strongly disagree.
KRE 412(a)(1) generally bars evidence of a victim's prior sexual activity from being introduced to prove that the victim of a sex-related crime engaged in other sexual behavior. The purpose of this evidentiary rule is to avoid improper impeachment of character based on sexual activity. Perry v. Commonwealth, 390 S.W.3d 122, 129 (Ky. 2012). In criminal cases, though, evidence of the alleged victim's sexual behavior may be admitted if offered to show that someone other than the accused was the source of injury or other physical evidence. KRE 412(b)(1)(A).
Kentucky Rules of Evidence
Here, Yarmey cannot demonstrate how his trial counsel acted incompetently or prejudiced his defense by not attempting to admit evidence of the subsequent, unrelated rape. First, he assumes, without citing any supporting authority, that a timely filed attempt to introduce the evidence would have resulted in its admission under KRE 412(b)(1)(A). And then from that flawed premise, he claims evidence of the subsequent, unrelated rape would have given trial counsel the opportunity to prove that the victim was conflating which forcibly compelled sexual act traumatized her. As this position is wholly untethered from logic and the policy underlying Kentucky's Rape Shield Law, it is meritless. See Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002) (failure to perform a futile act is not ineffective assistance of counsel).
For his next argument on appeal, Yarmey claims his trial counsel was ineffective because of the medications he was taking during the trial. He does not list which medications his trial counsel was taking, nor which side effects allegedly caused the deficiency. Instead, he merely criticizes his trial counsel for failing to make certain objections during the trial, and other forms of trial tactics, all while blaming an unspecified "medication." Arguments of this kind lack adequate support. Hence, they do not comply with the specificity requirements of RCr 11.42(2) and warrant summary dismissal.
Regarding his final arguments on appeal, Yarmey claims several errors with respect to the plea agreement he entered after he was convicted, but before he was sentenced. He argues his guilty plea was void because it was not knowingly, intelligently, or voluntarily given and because his trial counsel failed to advise him as to his parole eligibility. And then, while assuming the invalidity of his guilty plea, he argues that the circuit court erred in dismissing his petition for CR 60.02 relief, wherein he claimed the evidence before the jury was insufficient to support a conviction. For the following reasons, none of these arguments is persuasive.
Here, the plea deal Yarmey entered was voluntary. The trial court held a Boykin colloquy in which Yarmey affirmed he was freely accepting the prosecution's offer. These solemn declarations, stated in open court with counsel, are presumed true. See Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)). Furthermore, Yarmey's reliance on an unpublished opinion of this Court, styled Patton v. Commonwealth, No. 2014-CA-001115-MR (Ky. App. July 29, 2016), is misplaced. The Kentucky Supreme Court reversed that decision in Commonwealth v. Patton, 539 S.W.3d 651 (Ky. 2018).
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
The Supreme Court rendered its decision while this appeal was pending. --------
Because Yarmey's plea agreement was voluntarily entered, his claim of ineffective assistance of counsel regarding the guilty plea was properly dismissed. Trial counsel is not ineffective merely because he negotiated a plea deal that his client willingly accepted but later regretted. Instead, the petitioner must show that rejecting the plea deal would have been rational under the circumstances. Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012). Here, Yarmey faced sentencing for a Class B felony, stemming from a sex crime against child, and possible additional proceedings relating to the first-degree sodomy charge. Accordingly, advising Yarmey to mitigate a potentially longer sentence than one of 15 years was not irrational, even though he would serve 85% of it before becoming parole eligibile. See also Commonwealth v. Pridham, 394 S.W.3d 867, 880 (Ky. 2012) (argument as to egregious difference between bargained-for parole eligibility and statutorily-mandated parole eligibility a "red herring" when potential post-conviction sentencing not a factor).
Also, the valid plea agreement renders Yarmey's CR 60.02 motion moot. Any issue relating to the sufficiency of evidence at trial should have been raised on direct appeal. The trial record was available, and not newly discovered. On the contrary, the trial record contained Yarmey's express declaration of guilt. CR 60.02 does not authorize criminal defendants to disregard a valid plea agreement and relitigate known arguments through collateral challenge. Hence, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Maureen A. Sullivan
Louisville, Kentucky BRIEF FOR APPELLEE: Andrew G. Beshear,
Attorney General of Kentucky Leilani K. M. Martin
Frankfort, Kentucky