KY COA July 6 - Denny - IAC of PC Counsel

Denny v. Commonwealth, 2011-CA-1232 (Decided July 6, 2012; unpublished)

             Brad Denny pled guilty to murder and was sentenced to LIFE in prison.  He filed a pro se RCr 11.42 motion which the circuit court denied without holding an evidentiary hearing.  His case was reversed by the Court of Appeals and remanded for a hearing.  The circuit court held a hearing and again denied his RCr 11.42 motion. 

In the instant action, Denny claimed in a CR 60.02 motion that he received ineffective assistance of post-conviction counsel due to failure to raise substantial issues in the RCr 11.42 motion.  The Court of Appeals denied the claim, stating that he should have raised the claims in his RCr 11.42 action.  While the Court did give lip service to the United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), it ultimately refused his claim based on the holding of the Kentucky Supreme Court in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010) that Kentucky has held that there cannot be a valid claim for ineffective assistance of post-conviction counsel because by Kentucky law, he has no right to the assistance of post-conviction counsel.

In essence, as the Court of Appeals stated, “Because Denny’s ineffective assistance of trial counsel claims could have been asserted in his RCr 11.42 motion, the law in Kentucky states that his CR 60.02 motion fails.”

In a dissent, Justice Stumbo stated, “I would reverse and remand for appointment of counsel so that the trial court can determine whether Appellant can demonstrate ‘that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.’”  Martinez, 132 S.Ct. at 1318.

 Contributed by Karen Maurer

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

Lawyer erred by not calling psychologist, Missouri appellate court holds

from Forensic Psychologist Blog

180-year sentence overturned over lack of mental health testimony

A trial counsel’s failure to call a psychologist to testify at the sentencing hearing of a Missouri man with borderline intelligence constitutes reversible error, an appellate court has ruled.

The court upheld a trial court decision that the attorney's performance was deficient, and that the failure to present psychological evidence may have prejudiced the defendant.

A jury deliberated for just a little over an hour at the sentencing hearing of 24-year-old Skylor Radmer before recommending a prison sentence of 180 years. Earlier, the jury had convicted him of two counts of statutory sodomy for molesting his 5-year-old niece.

In upholding the lower-court ruling reversing the sentence, the Court of Appeals for the Western District of Missouri said that psychological testimony about Radmer's borderline intelligence might have resulted in a different outcome.

Radmer's attorney, Bert Godding, knew about Radmer's intellectual handicap because he had represented him in a prior case in which his comprehension of a police Miranda warning was at issue. In that case, he retained psychologist Bill Geis, who testified at an evidentiary hearing that Radmer was functioning at the borderline intellectual level, with an IQ score of 75.

At a hearing on the ineffective assistance claim, Dr. Geis testified that Radmer's low intelligence might have been relevant to explaining his sex offending as a product of poor judgment rather than pedophilia.

The trial attorney also testified at the hearing, admitting that he had no strategic reason for not calling a mental health expert to testify at the sentencing phase of the trial: "I don't believe that I necessarily had a reason not to or to do that," he testified. "I don't know why I didn't call someone like that."

The appellate court rejected the prosecution’s argument that the jury would have found Dr. Geis biased because he had worked for the public defender in the past. Geis is a research professor at the University of Missouri-Kansas City.

The defense lawyer's "failure to call Dr. Geis or a similar expert during the sentencing phase fell below an objective standard of reasonableness," the appellate court unanimously held.

Featured Case - Tigue - Absense of Counsel for Withdraw of Guilty Plea

Tigue v. Commonwealth, 2009-CA-000080 & 2009-CA-001279 – rendered September 9, 2011

Reversing and Remanding

 The defendant filed RCr 11.42 and CR 60.02 motions and the Court of Appeals granted relief when it held that the defendant was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw his guilty plea.  The Court found that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and the absence of counsel at a critical stage of the proceeding is a per se Sixth Amendment violation warranting reversal of a conviction or sentence without analysis for prejudice or harmless error.

In light of the importance of counsel’s assistance in properly framing the issues and presenting those issues to the court, as well as developing any factual support and being knowledgeable about the requirement of a written motion and the elements considered by a trial court on a motion to withdraw a guilty plea, we agree with these state and federal courts. Thus, we hold that Tigue was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw Tigue’s guilty plea.

We find that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and it is well-established that the “absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error.”

Contributed by Steven Buck