PATRICK ETHERTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 21, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001330-MR
PATRICK ETHERTON
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 03-CR-00100
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND STUMBO, JUDGES; ROSENBLUM,1 SENIOR JUDGE.
ROSENBLUM, SENIOR JUDGE: Patrick Etherton appeals from an order of the Pike
Circuit Court denying his motion for post-conviction relief pursuant to RCr2 11.42.
Etherton contends that, for various reasons, he received ineffective assistance of counsel
in connection with his guilty plea to the charges of murder and first-degree robbery.
For the reasons stated below, we affirm.
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580
2
Kentucky Rules of Criminal Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Between 6:30 a.m. and 7:00 a.m. on November 21, 2001, Etherton,
Raymond French, and William Hopkins drove together to Thompson's Market, located in
Raccoon, Kentucky.3 They stopped the car a short distance away. Etherton got out of the
car and entered the store. He was wearing a ski mask and carrying a gun. After entering
the store, he encountered the owner, Charles Thompson. Etherton demanded money, and
Thompson complied. Though the details are not clear, it appears that Etherton shot
Thompson in the stomach while in the store. Thompson followed Etherton out of the
store, pushing him as he went through the doorway toward the parking lot. Etherton fell
to the ground, shot Thompson a second time, this time in the chest, and ran to the car
where French and Hopkins were waiting. Etherton got in the car, and the three men
drove away. Charles Thompson died at the scene.
On April 16, 2003, Etherton and Hopkins were indicted for first-degree
robbery and murder. That same day, French approached the police to make a statement.
He later pled guilty to facilitation of robbery and received a 2.5 year sentence in
exchange for testifying against Etherton and Hopkins at trial. Before trial, the
Commonwealth had indicated its intent to seek the death penalty against Etherton, the
gunman, though not against Hopkins.
3
Portions of the background section are modeled upon the narrative contained in the Supreme
Court's unpublished opinion affirming the conviction of codefendant William Hopkins for
complicity to murder and complicity to first-degree robbery. See Hopkins v. Commonwealth,
No. 2004-SC-0687-MR, 2006 WL 1360889 (Ky. May 18, 2006).
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On June 28, 2003, the first day of the scheduled trial, Etherton pled guilty
to murder and first-degree robbery. Pursuant to the plea bargain, Etherton agreed to
testify against Hopkins in exchange for a sentence of life without the possibility of parole
for twenty-five years. At the Hopkins trial, Etherton testified concerning his participation
in the crime, including that he had fired the shots that killed Thompson.
Etherton's plea agreement with the Commonwealth provided that he would
plead guilty to murder and first-degree robbery. In return, the Commonwealth would
recommend a sentence of life without the possibility of parole for 25 years on the murder
conviction, and a sentence of 20 years on the robbery conviction, to run concurrently.
The plea agreement further provided that “[i]n exchange for this plea the Commonwealth
will do everything possible to assist in obtaining an interstate transfer of the defendant to
a Michigan facility, to include writing a letter to be included with the presentence
investigation report recommending such transfer, both because of the health of Mr.
Etherton's parents and because of a fear for Mr. Etherton's safety if incarcerated in a
facility in Kentucky. If a Michigan facility is not available, the Commonwealth will seek
transfer to a facility in another state. The Commonwealth will also ask the Court to
recommend such a transfer.”
On July 14, 2004, Final Judgment was entered in accordance with the plea
agreement.
On June 1, 2005, Etherton filed a motion for post-conviction relief pursuant
to RCr 11.42. The motion alleged various grounds for relief. On June 17, 2005, the trial
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court entered an order summarily dismissing certain grounds claimed for relief, which
dismissals are not challenged upon this appeal. The trial court scheduled an evidentiary
hearing on the remaining four grounds - failure of trial counsel to communicate a plea
agreement offer of 35 years; failure of the trial court to have held a competency hearing;
misinformation and manipulation of Etherton by trial counsel before he entered his guilty
plea; and the Commonwealth's failure to fulfill its end of the plea agreement by not
transferring Etherton to Michigan to serve his sentence. Counsel was appointed to
represent Etherton at the hearing, but did not supplement his original motion.
On April 17, 2006, an evidentiary hearing was held on the unresolved
issues. At the outset of the hearing Etherton made a statement to the effect that he was
not satisfied with the Department of Public Advocacy attorney who had been appointed
to represent him in the post-conviction proceedings. Presumably for that reason, Etherton
did not testify in defense of his claims of ineffective assistance. As a result, trial counsel
was the only witness who testified at the hearing, and she effectively refuted each of the
alleged claims of ineffective assistance raised by Etherton.
On May 31, 2006, the trial court entered an order denying Etherton's
motion for relief upon the remaining issues. This appeal followed.
DISCUSSION
We first note that there is somewhat of an incongruity between certain of
the arguments as raised in Etherton's RCr 11.42 motion and as presented upon this
appeal. Certain of the arguments have been recast, and others abandoned.
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In its May 31, 2006, order denying the RCr 11.42 claims upon which
hearing was granted, the trial court found that there was no evidence to support Etherton's
claim of incompetency; that there had been no plea offer of 35 years; and that the
Commonwealth had complied with its obligation to request transfer of Etherton to a
prison outside of Kentucky.
Each of the foregoing findings are supported by substantial evidence, and,
accordingly, are not clearly erroneous. CR4 52.01. The testimony of trial counsel
supports the trial court's findings upon all of these issues, and, in addition, a letter from
the Pike County Commonwealth's Attorney documents his efforts in attempting to have
Etherton transferred to Michigan.5
With the aforementioned disposed of, we now turn to Etherton's additional
allegations of ineffective assistance of counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
Before us, Etherton contends that he received ineffective assistance of
counsel because (1) trial counsel failed to explain the effects of mitigation and alternate
sources of mitigation to him; (2) trial counsel pressured and coerced him into accepting
the plea offer; and (3) the cumulative effect of trial counsel's errors resulted in ineffective
assistance of counsel.
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 the standard governing review of
4
Kentucky Rules of Civil Procedure.
5
Trial counsel also sent a letter to the Department of Corrections in support of the transfer.
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claims of ineffective assistance of counsel. Under this standard, a party asserting such a
claim is required to show: (1) that the trial counsel's performance was deficient in that it
fell outside the range of professionally competent assistance; and (2) that the deficiency
was prejudicial because there is a reasonable probability that the outcome would have
been different but for counsel's performance. Id. at 687. This standard was adopted by
the Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
This test is modified in cases involving a defendant who enters a guilty
plea. In such instances, the second prong of the Strickland test includes the requirement
that a defendant demonstrate that but for the alleged errors of counsel, there is a
reasonable probability that the defendant would not have entered a guilty plea, but rather
would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct.
366, 370, 88 L.Ed.2d 203 (1985); Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App.
1986).
A reviewing court must entertain a strong presumption that counsel's
challenged conduct falls within the range of reasonable professional assistance.
Strickland, 466 U.S. at 688-89. The defendant bears the burden of overcoming this
strong presumption by identifying specific acts or omissions that he alleges constitute a
constitutionally deficient performance. Id. at 689-90. The relevant inquiry is whether
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.
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FAILURE TO EXPLAIN MITIGATION EVIDENCE
Etherton contends that he received ineffective assistance because trial
counsel failed to explain the effects of mitigation evidence and alternate ways of
obtaining mitigation to him.6
At the evidentiary hearing trial counsel testified that she, her co-counsel,
and her investigators spent four to five days in Etherton's home state of Michigan seeking
possible mitigation witnesses. Counsel further testified, however, that the trial court's
denial of funds to procure those witnesses frustrated her efforts. She further testified that
she explained the significance to Etherton in avoiding the death penalty.
Trial counsel's testimony concerning her extraordinary efforts in obtaining
mitigation evidence is unrebutted. An evidentiary hearing was held in this cause and
Etherton chose not to testify. Nor did he present any other witnesses in support of his
positions. He was given an opportunity to put on proof concerning trial counsel's failure
to explain mitigation factors to him, but did not do so. As such, we find no evidentiary
support in the record for this claim of ineffective assistance of counsel for failure to
explain mitigation issues to the appellant.
Moreover, in its May 31, 2006, order denying Etherton's motion as to the
issues reserved for hearing, the trial court made no factual findings in this area. Thus, we
have no findings to review for error. Further, CR 52.04 requires a motion for additional
6
In his RCr 11.42 motion Etherton raised mitigation only in the context that the trial court had
erred by denying his request for funding to seek out-of-state mitigating evidence. While
Etherton has now impermissibly recast this argument as an ineffective assistance of counsel
claim, we will nevertheless address the argument as presented upon appeal.
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findings of fact when the trial court has failed to make findings on essential issues.
Failure to bring such an omission to the attention of the trial court by means of a written
request will be fatal to an appeal. Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982).
Because of the foregoing shortcomings, we have little to review. Etherton
presented no evidence concerning this argument at the evidentiary hearing, the trial court
made no findings concerning the argument, and Etherton failed to request additional
findings. As such, we have no basis to conclude that Etherton is entitled to postconviction relief upon the grounds that trial counsel failed to explain the ramifications of
mitigation evidence to him.
COERCION AND PRESSURE TO PLEAD
Etherton contends that he received ineffective assistance of counsel on the
basis that trial counsel coerced and pressured him into pleading guilty by informing him
of the conditions on death row; by requesting that his mother encourage him to plead
guilty; by failing to discuss with him how the transfer to Michigan would be fulfilled; and
by telling him that she was not prepared for trial and if he did not plead guilty, he would
be convicted and sentenced to death.
As previously noted, the trial court found that there was no plea offer of 35
years made by the Commonwealth, and thus this aspect of the argument is without merit.
Similarly, appropriate efforts were made to effect the transfer out-of-state, and there was
no ineffective assistance in this area.
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Trial counsel conceded that she informed Etherton regarding conditions on
death row, talked to the victim's wife in an effort to get her to agree to a penalty less than
death, and asked Etherton's mother to assist in persuading him to accept a sentence of life
without parole for twenty-five years. However, trial counsel further explained that the
evidence was overwhelming that Etherton was guilty of capital murder, that there was a
statutory aggravating factor qualifying him for the death penalty (the armed robbery), and
her primary objective was to save him from the death penalty. However, the foregoing
“pressure” was not ineffective assistance, but, rather, sound trial strategy.
“[A]n attorney may, after making an adequate investigation, in good faith
and in the exercise of reasonable judgment, advise his client to plead guilty.” Quarles v.
Commonwealth, 456 S.W.2d 693, 694 (Ky. 1970). Those elements are met here.
In addition, this argument suffers from the same deficiencies identified in
the previous argument. At the evidentiary hearing Etherton presented no evidence
concerning pressure and coercion, the trial court made no findings in the area, and
Etherton did not request additional findings of fact in the area of coercion and pressure to
plead guilty. There being insufficient evidentiary support concerning this argument, we
find no basis for post-conviction relief.
CUMULATIVE EFFECT
Lastly, Etherton contends that he received ineffective assistance based upon
the cumulative errors of trial counsel as stated above. However, the rule on cumulative
error in RCr 11.42 cases remains as stated in McQueen v. Commonwealth, 721 S.W.2d
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694 (Ky. 1986): “[i]n view of the fact that the individual allegations have no merit, they
can have no cumulative value.” Id. at 701. As such, Etherton is not entitled to relief
under this claim for relief.
CONCLUSION
For the foregoing reasons the judgment of the Pike Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Y. Josephine Layne
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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