KY COA March 30th - Robbins- Possible Ineffective assistance of counsel for failing to investigate and giving misadvice leading to a guilty plea

Robbins v. Commonwealth – 2009-CA-2178 & 2010-CA-1969, Ordered Published March 30, 2012

Robbins pleaded guilty of wanton abuse or neglect of an adult; wanton exploitation of an adult over $300; theft by unlawful taking over $300; and persistent felony offender, second degree.  He filed two RCr 11.42 motions to set aside his plea, conviction, and sentence.  The trial court denied both motions without an evidentiary hearing.  The Court of Appeals held that the trial court abused its discretion by denying the first RCr 11.42 motion without an evidentiary hearing.  The second motion was properly dismissed as being successive.

Robbins was charged on June 25, 2007 of taking over $114,000 from his mother’s bank account and letting her medical condition worsen without seeking medical care for her.  He entered a Alford plea on September 11, 2007 and was sentenced on November 15, 2007.

Two years later, Robbins filed his RCr 11.42 motions alleging ineffective assistance of trial counsel.  The Court of Appeals faulted the trial court’s finding that no evidentiary hearing was necessary because the record was “apparent” that trial counsel conducted a proper investigation on behalf of Robbins.

First, Robbins complained that he pleaded on the advice of counsel, but was never given the opportunity to review the evidence against him.  In fact, the Commonwealth had not provided any of the required discovery (approximately 1,600 pages) when Robbins entered his guilty plea.  Without reviewing the information in the discovery, it was impossible for Robbins to evaluate the soundness of counsel’s advice.  The Court of Appeals held that without an evidentiary hearing, it is not possible to evaluate the effectiveness of trial counsel’s representation.

Second, the Court of Appeals was concerned that the Commonwealth’s theory of guilt
was based on a standard not authorized by the protection of adults statute (KRS 209.020) for “Abuse, ” “Neglect,” and “Exploitation.”  Apparently, the victim, Robbins’ mother, suffered a hereditary condition, that causes her legs to swell and blister.  And the police officer’s observation of the mother’s legs formed the basis of the abuse/neglect charges, despite the mother informing medical personnel that her condition was not caused by her son.  The Court of Appeals held there was no duty for a healthcare surrogate to force a person to seek medical treatment unless that person lacked the capacity to make health-care choices.  Since trial counsel never spoke with the mother, there is an issue of fact whether trial counsel reasonably advised Robbins to accept the guilty plea.

Third, the exploitation and theft charges were based on allegations that Robbins used his mother’s assets for his own benefit, even though the mother consented to Robbins’ withdrawals from her bank account.  The trial court should have considered the mother’s consent as being decisive in the presentation of a successful defense.

The trial court’s failure to order an evidentiary hearing is problematic for two reasons.  First, if counsel’s advice was based on a failure to fully investigate the evidence supporting the charges and the defenses to the charges, then counsel’s advice was deficient. Furthermore, given the questionable factual and legal support for the charges, there is a reasonable implication that Robbins would not have pleaded guilty but for counsel’s deficient advice.  Accordingly, an evidentiary hearing is warranted in this case.

Trial practice tip:  When defending Neglect/Exploitation cases, it is a proper and winning defense if the victim (if mentally competent) refuses medical treatment or consents to the defendant’s withdraw of victim’s money.

Contributed by Robert Yang