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Court of Appeals of Kentucky.


NO. 2010–CA–000878–MR

Decided: January 20, 2012

BEFORE:  CAPERTON, NICKELL AND WINE, Double JUDGES. BRIEFS FOR APPELLANT:  Amy Robinson Staples Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky



Brian Charles appeals from the April 6, 2010, order of the Kenton Circuit Court denying his motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing.   Having reviewed the parties' arguments, the record and the applicable law, we agree with Charles that he was entitled to an evidentiary hearing on several claims raised in his motion.   Accordingly, the order is reversed in part and the case is remanded to the Kenton Circuit Court for further proceedings.

According to the account set forth in the opinion of the Kentucky Supreme Court in Charles's direct appeal, Charles and a friend:

[B]roke into the victim's Crescent Springs home in the late evening or early morning hours of January 7. Both had guns and one wore stockings on his hands.   They tied up the female victim and threatened her with the guns until she provided them with her bank account PIN number.   The last thing she remembered was a blow to the head.   She awoke later to discover the men had taken numerous items from her home including two shotguns, consumer electronics, her automobile and several credit and bank cards.   She was not able to identify either of the men who entered her dwelling.

See Charles v. Commonwealth, 2006 WL 1650973 (2004–SC–01020–MR) (Ky.2006).

Charles was convicted by a jury of first-degree burglary, complicity to first-degree robbery, receiving stolen property valued over $300, tampering with physical evidence and being a first-degree persistent felony offender.   He received a prison sentence of twenty years.   His convictions were affirmed on direct appeal to the Kentucky Supreme Court, except for the conviction for receiving stolen property over $300, which was remanded for resentencing.

Following the resolution of his direct appeal, Charles filed a pro se motion pursuant to RCr 11.42 raising numerous claims of ineffective assistance of counsel.   The trial court denied the motion without a hearing, and this appeal followed.

Charles argues that his trial counsel was ineffective for:  (1) failing to advise him to accept a plea offer from the Commonwealth without adequate investigation;  (2) failing to interview and secure alibi witnesses;  (3) failing to object to the use of leg restraints in front of the jury;  and (4) failing to object to the introduction of improper hearsay testimony.   He further argues that the trial court erred in failing to grant an evidentiary hearing.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-part test to be used in determining whether the performance of a convicted defendant's trial counsel was so deficient as to merit relief from that conviction:

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.

Id., 466 U.S. at 687, 104 S.Ct. at 2064.

Under the second, “prejudice” part of the test,

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., 466 U.S. at 694, 104 S.Ct. at 2068.

An evidentiary hearing on an RCr 11.42 motion “is only required when the motion raises an issue of fact that cannot be determined on the face of the record.   To do this, the court must examin[e] whether the record refuted the allegations raised[.]”  Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky.2008) (internal citations and quotation marks omitted).

According to Charles, the Commonwealth offered to recommend a sentence of three years in exchange for a plea of guilty to receiving stolen property.   He claims that his attorney informed him that the Commonwealth had no evidence against him and recommended that he proceed to trial.   Charles argues that his trial counsel failed to conduct a full investigation of his case and had no defense theory, yet advised him to reject the advantageous plea offer.   In his written response to Charles's RCr 11.42 motion, the Commonwealth Attorney stated that Charles's trial counsel had informed him that counsel told Charles of the plea offer but had not offered Charles advice on whether or not to accept it.   It is not clear when this unverified communication between the Commonwealth Attorney and trial counsel occurred.   The trial court denied Charles's claim, stating that Charles “was aware that he had an agreement and chose not to accept it.”

The Third Circuit Court of Appeals has held that “the decision to reject a plea bargain offer and plead not guilty is ․ a vitally important decision and a critical stage at which the right to effective assistance of counsel attaches.”  United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir.1982).   The test for ineffective assistance of counsel is applicable not only when a defendant alleges that he or she was wrongfully induced by counsel to enter a guilty plea, but also when the allegation is that counsel denied the defendant the ability to enter into a guilty plea.

The same inquiry as to whether a defendant would or would not have insisted on going to trial is relevant in the context of one who had entered into a plea arrangement as well as one who had declined the offer.   The bottom line remains what risks were attendant to trial versus the benefits to be gained vis á 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).

Charles does not deny that his attorney informed him of the terms of the plea offer, and, unlike the appellant in Osborne, he does not allege that he wished to plead guilty but was thwarted by his attorney.   His sole allegation is that his attorney advised him to reject the offer without conducting a full investigation of his case and the existence of potentially exculpatory witnesses.   He does not explain with any specificity how an investigation of these witnesses could or should have altered or affected the advice his attorney provided.   Allegations that are “vague and general ․ do not rise to the standards required by RCr 11.42(2).”  Sanders v. Commonwealth, 89 S.W.3d 380, 390 (Ky.2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009).   Indeed, if these were exculpatory witnesses, as he claims, his attorney may have been justified in recommending that Charles proceed to trial.

In a related argument, Charles contends that his counsel failed to investigate several witnesses whom he claims could have provided him with an alibi or discredited the Commonwealth's witnesses.   Charles's trial counsel called no witnesses on his behalf.   Aaron Peeno, a witness for the prosecution, testified that he had a conversation with Charles in which Charles admitted that the stolen items were his and gave details about his participation in the robbery.   According to Charles, three of his cousins—Timmy Charles, Johnny Baker and Brandon Baker—could have testified that Charles was in Fort Wayne, Indiana, staying and working with them at the time Peeno claimed that Charles admitted his involvement in the robbery.   Another potential witness, Kevin Charles, could also allegedly have testified that Charles was in Fort Wayne.   Charles's father allegedly could have testified that Peeno committed perjury and could have provided mitigation evidence.

The Commonwealth argues that Charles's claims regarding these witnesses are unsupported by affidavits and lack specific dates.   The Commonwealth also refers to an untitled handwritten document in the record which it identifies as a police report.   The document states that on February 1, 2004, a police officer tried to serve a warrant on Charles but was informed by “Jessica's brother” that he was not there and that Jessica had gone to Fort Wayne to pick him up.   The residence was searched and Charles was not found.   Jessica's brother asked the officer if Charles “was in trouble for robbing someone again.”   The Commonwealth contends that counsel could not be faulted for not wanting to draw attention to Jessica's brother's damaging remark nor to the fact that Charles had fled to Fort Wayne.   The Commonwealth contends that no connection has been established between Charles's presence in Fort Wayne in February and the robbery in January.   According to Peeno's trial testimony, the meeting at which Charles made the incriminating remarks occurred at some time after mid-January.   Thus, it is possible that the witnesses named by Charles could have impeached Peeno's testimony.   The record does not establish whether trial counsel ever investigated these witnesses, or, if counsel decided as a matter of trial strategy that these witnesses should not be used to impeach Peeno.   Therefore, an evidentiary hearing must be held on this issue to determine whether counsel's decision was “trial strategy or an abdication of advocacy.”  Hodge v. Commonwealth, 68 S.W.3d 338, 345 (Ky.2001).

Charles also argues that his attorney neglected to investigate another potential witness, Lucy Gordon, an individual whose home was also broken into on January 7 and who was able to give a detailed description of the intruders (neither of whom resembled Charles) and the car they were driving.   There is absolutely no indication that Lucy Gordon's assailants were the same individuals that committed the robbery in this case.   This allegation lacks the specificity required under RCr 11.42(2), and the trial court did not abuse its discretion in denying this claim.

Thirdly, Charles argues that his counsel was ineffective for failing to object when he was forced to wear leg restraints in front of the jury during the course of the trial.  RCr 8.28(5) provides that “Except for good cause shown the judge shall not permit the defendant to be seen by the jury in shackles or other devices for physical restraint.”   This right to be free from restraints “relates closely to an accused's constitutional right to be presumed innocent until proven guilty.”  Hill v. Commonwealth, 125 S.W.3d 221, 233 (Ky.2004), holding modified by Depp v. Commonwealth, 278 S.W.3d 615 (Ky.2009).   Furthermore, even if shackles are deemed to be necessary for reasons of security “[t]o maintain the presumption of innocence, an admonition of some kind is a virtual necessity[.]”  Id. at 236.

The trial court denied this claim on the grounds that Charles only “speculated” that the jury might have seen the restraints and that “mere speculation is an insufficient basis for an allegation of ineffective assistance of counsel.”   We have reviewed the trial tapes but are unable to discern whether Charles was actually wearing restraints, or, if he was, whether the jury could see them.   Because Charles's claim regarding the leg restraints cannot be resolved from the record, an evidentiary hearing is required to determine what the jury could see and whether his counsel's alleged failure to object to the restraints or to request an admonition was professionally deficient.

Finally, Charles argues that his attorney was ineffective for failing to object to two instances of hearsay testimony.   On direct appeal, the Kentucky Supreme Court reviewed several instances of improper hearsay testimony that were unpreserved by objection and held that none rose to the level of palpable error.   The Supreme Court observed that it was “difficult to single out the cause when a trial judge permits a prosecutor to introduce so many errors into a trial because defense counsel has raised no objections.”

The trial court addressed Charles's claim that his attorney was ineffective for failing to object to hearsay evidence by stating that “[t]his issue was addressed on direct appeal and won't be addressed in this order.”   Charles correctly argues that the trial court applied the wrong standard of review to this claim because “an unsuccessful attempt to prevail upon a palpable error claim and an adverse ruling from the Court on direct appeal does not preclude the same claim of error from being considered again as ineffective assistance of counsel.”  Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006).

The Kentucky Supreme Court has provided the following guidance in distinguishing between the standards of palpable error and ineffective assistance of counsel:

When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.   However, on collateral attack, when claims of ineffective assistance of counsel are before the court, the inquiry is broader.   In that circumstance, the inquiry is not only upon what happened, but why it happened, and whether it was a result of trial strategy, the negligence or indifference of counsel, or any other factor that would shed light upon the severity of the defect and why there was no objection at trial.   Thus, a palpable error claim imposes a more stringent standard and a narrower focus than does an ineffective assistance claim.   Therefore, as a matter of law, a failure to prevail on a palpable error claim does not obviate a proper ineffective assistance claim.

Id. at 5.

Thus, this claim must be remanded for consideration of the hearsay under this standard and in light of the other allegations of ineffective assistance of counsel.

The order of the Kenton Circuit Court denying Charles's RCr 11.42 motion is affirmed as to the claims that Charles's trial counsel was ineffective for advising him to reject the Commonwealth's plea offer and for not investigating the potential witness Lucy Gordon.   The order is reversed as to the claims that his attorney was ineffective for failing:  (1) to investigate potentially exculpatory witnesses;  (2) to object or request an admonition regarding Charles appearing before the jury in leg restraints;  and (3) to object to the admission of hearsay testimony.   These claims are remanded for an evidentiary hearing and further consideration in accordance with this opinion.