GEARY (RICHARD ALLEN) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: OCTOBER 2, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001116-MR RICHARD ALLEN GEARY v. APPELLANT APPEAL FROM UNION CIRCUIT COURT HONORABLE C. RENÉ WILLIAMS, JUDGE ACTION NO. 04-CR-00036 COMMONWEALTH OF KENTUCKY APPELLEE OPINION VACATING AND REMANDING ** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE. HENRY, SENIOR JUDGE: On March 28, 2005, Richard Allen Geary was convicted by a Union County jury of conspiracy to theft of anhydrous ammonia with intent to manufacture methamphetamine and of being a second-degree persistent felony offender. He now appeals from the Union Circuit Court’s denial 1 Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for postconviction relief. Geary argues that his trial counsel rendered ineffective assistance by failing to move for a lesser-included offense jury instruction at trial and that the circuit court erred by denying his RCr 11.42 motion without an evidentiary hearing. Upon review, we hold that the circuit court erred by failing to conduct an evidentiary hearing on Geary’s motion and therefore vacate and remand for further proceedings consistent with this opinion. The following facts were revealed at trial. On February 19, 2004, at approximately 1:40 a.m., Deputy Jason Thomas observed Geary and two others in a parked car in the parking lot of a closed business. Deputy Thomas approached Geary, who was standing near a Coke machine, and asked him what he was doing. At that point, Geary appeared to become nervous and returned to the car, where he sat in the front passenger’s seat. Deputy Thomas approached the car’s driver side, where a man named Timothy Burden was sitting, and smelled propane inside of the car. He explained to Burden that there had been a rash of burglaries in the area and asked him if they had any tools in the car. Burden replied “No,” but Deputy Thomas could see a pair of blue-handled channel-lock pliers in the back seat. Deputy Thomas testified that pliers were the only tool needed to steal anhydrous ammonia. Deputy Thomas subsequently asked Geary, Burden, and the car’s other passenger, Jerry Oakley, for their names and dates of birth. Geary and Burden answered the request truthfully, but Oakley gave a false name. After -2- eventually giving Deputy Thomas his real name, Oakley was searched. The search produced a walkie-talkie, which Deputy Thomas described as an item commonly used for communication during thefts of anhydrous ammonia. Deputy Thomas also searched Geary and found another walkie-talkie as well as a torch lighter. This type of lighter was noted to be commonly used to light a pipe to smoke methamphetamine. Deputy Thomas also testified that he did not find any cigarettes on Geary. After back-up arrived at the scene, Deputy Thomas asked Burden if there were any tools in the trunk, to which Burden responded, “No.” Deputy Thomas then asked Burden for permission to search the trunk, and Burden consented. Inside, Deputy Thomas found a propane tank, which had a loose valve that was emitting the smell of propane. He also found an air tank with a brass valve that had turned a bluish-green color. Deputy Thomas testified that such discoloration was typically caused when valves of this type are exposed to anhydrous ammonia. Deputy Thomas also found a garden hose with a makeshift fitting; he explained that such fittings are typically created to fit onto an anhydrous ammonia tank and that he had seen similar ones on many occasions. Deputy Thomas subsequently arrested Geary, Oakley, and Burden and gave them Miranda2 warnings. He then told the men that he wanted to investigate a particular location that was approximately 1.1 miles away in order to determine if the anhydrous ammonia tanks there had been tampered with. He explained that he 2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). -3- did not want anyone to get hurt and asked the men if anyone else was there. Oakley later testified that he responded, “No, I haven’t got any, yet,” but Deputy Thomas recalled him saying, “No, we haven’t got any, yet.” In any event, Deputy Thomas took this to mean that the men had planned to steal anhydrous ammonia, but had not yet done so. On May 4, 2004, a Union County grand jury charged Geary with criminal conspiracy to theft of anhydrous ammonia with intent to manufacture methamphetamine, possession of a controlled substance in an improper container,3 and being a second-degree persistent felony offender. Geary entered a plea of “not guilty” to the charges, and the case proceeded to trial on March 28, 2005. At trial, the Commonwealth presented testimony from Deputy Thomas, Oakley, and Burden. Oakley and Burden had both previously entered guilty pleas and were not on trial. Geary presented no witnesses. Oakley testified that he had known Geary for three or four years and that he had been around Burden on a couple of occasions. On the night of the incident in question, he called Geary and asked if he and Burden would drive him to the Henderson/Evansville area to the home of a female acquaintance. They agreed and picked him up 20 or 30 minutes later. Oakley told Burden that he had a duffel bag full of clothes and asked if he could put it in the trunk. Burden agreed and gave Oakley his car keys. Oakley testified that the bag actually contained pliers, an air tank, and a garden hose. He removed the air tank and garden hose from the bag 3 This charge was ultimately dismissed prior to trial upon the Commonwealth’s motion. -4- and placed them into the trunk along with a propane tank that had been sitting nearby. He then placed the duffel bag, which still contained the pliers, into the back seat of the car. Oakley acknowledged that he had previously used the items to procure anhydrous ammonia. He testified that he did not tell Geary and Burden about the items because he was afraid that they would refuse to give him a ride. During the drive, Oakley attempted to contact his acquaintance by phone, but she did not answer. The men were ultimately unable to find her residence, so they decided to return to Grapevine. According to Oakley, they eventually became lost and ended up in Waverly. They then pulled into the parking lot of a tanning salon in order to turn around. While in the parking lot, Geary indicated that he was thirsty and walked to the Coke machine. Oakley testified that Geary also took the opportunity to test a walkie-talkie that he was considering buying from Oakley. At this point, Deputy Thomas approached Geary. Oakley acknowledged giving Deputy Thomas a false name at first because a domestic violence warrant had been taken out against him. He also admitted having a walkie-talkie and told the jury that he was trying to sell another one to Geary. Oakley testified that he had never discussed stealing anhydrous ammonia with Geary and that there had been no agreement to do so. Instead, he had planned to eventually steal some by himself. Burden testified that he had been friends with Geary for three or four years and that he had only seen Oakley once before the incident in question. -5- According to Burden, he and Geary met Oakley in Grapevine, outside of Madisonville, and agreed to take him to Evansville to the home of a female acquaintance. Oakley told Burden that he had a duffel bag filled with clothes and asked if he could put it in Burden’s trunk. Burden agreed and gave Oakley his car keys. Burden testified that all he saw was a green duffel bag and that he did not know what its contents actually were. According to Burden, when the men could not find the residence they were looking for, they decided to return home and he took an alternate route through Union County because he thought it would be quicker. Eventually he became lost and realized he did not know how to get back to Madisonville, so he decided to stop and turn around. While stopped, the men were approached by Deputy Thomas. Even though he pled guilty, Burden professed his innocence in any wrongdoing and testified that he did not believe that Geary had any idea what was going on or what Oakley was carrying in his duffel bag. After the Commonwealth rested, Geary’s attorney, Hon. Daniel Hancock, moved for a directed verdict on the grounds that the Commonwealth had failed to establish an agreement between Geary, Oakley, and Burden to steal anhydrous ammonia for purposes of manufacturing methamphetamine. The Commonwealth argued that such an agreement could be inferred from the circumstances. The trial court denied the motion and the case went to the jury, which ultimately found Geary guilty of the criminal conspiracy and PFO 2nd charges. On April 13, 2005, the trial court entered a judgment consistent with the -6- jury’s finding of guilt and sentenced Geary to 20 years’ imprisonment, per the jury’s recommendation. Geary’s conviction was confirmed on direct appeal to the Supreme Court of Kentucky.4 In doing so, the Supreme Court rejected Geary’s argument that he was entitled to a directed verdict because the evidence failed to establish that there was an agreement to steal anhydrous ammonia with intent to manufacture methamphetamine. On October 19, 2007, Geary, proceeding pro se, filed a motion to vacate, correct or set aside his conviction pursuant to RCr 11.42 on the grounds that he had received ineffective assistance of counsel. He also asked for an evidentiary hearing on his motion and for the appointment of counsel to represent him. Geary specifically contended that his trial counsel was deficient for failing to request a jury instruction on criminal conspiracy to theft of anhydrous ammonia, which is a lesser-included offense of criminal conspiracy to theft of anhydrous ammonia with intent to manufacture methamphetamine. See KRS 505.020(2)(a). Geary argued that a reasonable jury might have found him guilty of the lesser offense considering the lack of evidence of intent to manufacture methamphetamine presented at trial and that a failure to request this instruction could not be attributed to sound trial strategy. On May 22, 2008, the Union Circuit Court entered an order denying Geary’s RCr 11.42 motion without an evidentiary hearing. In reaching this decision, the circuit court referred to the Supreme Court’s denial of Geary’s direct 4 Geary v. Commonwealth, 2007 WL 543632 (Ky. 2007) (2005-SC-000296-MR). -7- appeal – particularly its rejection of his claim that the evidence failed to establish that he had intent to manufacture methamphetamine. The circuit court noted that Geary’s trial counsel moved for directed verdict twice at trial on this issue and concluded that “[a]fter being overruled in his motion for directed verdict twice, it would not be unreasonable for counsel to believe any further motions on that same issue would be overruled.” Accordingly, it found that trial counsel’s performance was not deficient and rejected Geary’s claim of ineffective assistance of counsel. The present appeal followed. On appeal, Geary argues that the circuit court erroneously found that his trial counsel was effective despite failing to move for a jury instruction on the lesser-included offense of conspiracy to theft of anhydrous ammonia. 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-pronged analysis 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. Here, the circuit court denied Geary’s RCr 11.42 motion without an evidentiary hearing. Accordingly, “[o]ur review is -8- confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). RCr 11.42 requires an evidentiary hearing “if the answer raises a material issue of fact that cannot be determined on the face of the record.” RCr 11.42(5); see also Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). However, there is no need for an evidentiary hearing if the record refutes the claims of error or if the defendant’s allegations, even if true, would not be sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). When a trial court considers whether an evidentiary hearing is required, it must examine whether the record, on its face, refutes the allegations raised. Hodge v. Commonwealth, 68 S.W.3d 338, 341-42 (Ky. 2001). We believe that the circuit court’s reasoning in denying Geary’s RCr 11.42 motion was in error. As noted, the court excused counsel’s failure to request the jury instruction in issue because “[a]fter being overruled in his motion for directed verdict twice, it would not be unreasonable for counsel to believe any further motions on that same issue would be overruled.” However, this finding ignores the distinction between the standards that govern a motion for directed verdict and a request for a particular jury instruction, as well as the fact that the denial of the former does not necessarily preclude the granting of the latter. Our review of the record indicates that Geary would have been entitled to an instruction on the lesser-included offense of conspiracy to theft of anhydrous ammonia if it -9- had been requested. It is well-established that a trial judge has a duty to give instructions on the whole law of the case, including any lesser-included offenses that are supported by the evidence. RCr 9.54(1); Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). “[A]n instruction on a lesser included offense is authorized if the evidence would permit the jury to rationally find the defendant not guilty of the primary offense, but guilty of the lesser offense.” Commonwealth v. Wolford, 4 S.W.3d 534, 539 (Ky. 1999). We believe that this standard was met in this case. Therefore, the fact that Geary’s counsel had his motion for directed verdict denied did not, in and of itself, necessarily excuse and justify his failure to request the jury instruction in issue. With this noted, we must consider if the circuit court’s decision can otherwise be justified. Geary particularly contends that his trial counsel was ineffective in failing to request a jury instruction on the offense of conspiracy to theft of anhydrous ammonia because a conviction on this charge would not have triggered a resulting PFO 2nd charge since the former constitutes only a Class A misdemeanor under KRS 506.040(2)(d). That statute provides that “a criminal conspiracy is a . . . Class A misdemeanor when the object of the conspiratorial agreement is a Class C or D felony[.]” Theft of anhydrous ammonia is a Class D felony unless it is proven that the defendant did so with the intent to manufacture methamphetamine, in which case it is a Class B felony for the first offense and a Class A felony for each subsequent offense. KRS 514.030(2)(b). When the object of a conspiratorial agreement is a Class A or B felony, a criminal conspiracy is -10- considered a felony offense. KRS 506.040(2)(b)-(c). Accordingly, Geary correctly notes that the difference between a conviction for conspiracy to theft of anhydrous ammonia and one for conspiracy to theft of anhydrous ammonia with intent to manufacture methamphetamine was a crucial one in his case because of the looming possibility of a PFO 2nd sentence enhancement for a conviction on the latter charge. Conviction of a Class A misdemeanor can result in no more than a 12-month prison sentence. KRS 532.020(2); KRS 532.090(1). However, because Geary was convicted of a felony conspiracy charge, he was subject to sentencing as a PFO and received a 20-year sentence. See KRS 532.080(2). The difference between these two penalties is stark. Consequently, the failure of Geary’s counsel to request an instruction on conspiracy to theft of anhydrous ammonia as a lesserincluded offense raises immediate concern – along with the question of why such a request was not made. Geary contends that there was a reasonable probability that he would have been found guilty of the lesser offense instead of the greater one because of the lack of evidence demonstrating the intent to manufacture methamphetamine. This is not an unreasonable argument. Indeed, the Commonwealth acknowledges that the evidence against Geary on this particular point was relatively weak. However, the Commonwealth contends that Geary’s counsel intentionally declined to request a lesser-included-offense instruction because of an “all-or-nothing” defense strategy focused on total acquittal. In response, Geary contends that such a defense – if it was actually the one employed – could not be considered reasonable -11- for purposes of his RCr 11.42 motion because of the tremendous disparity between the maximum sentences he faced on each offense. The problem with which this Court is faced, however, is that the record on its face does not contain the rationale – if any – behind trial counsel’s failure to request the instruction. We may not accept the Commonwealth’s statements that trial strategy was being employed without further evidence on the subject – specifically testimony from trial counsel himself. Accordingly, we vacate the Union Circuit Court’s order denying Geary’s RCr 11.42 motion and remand this matter for an evidentiary hearing to determine why the lesser-included-offense instruction of conspiracy to theft of anhydrous ammonia was not requested by Geary’s attorney. If counsel failed to make such a request because of trial strategy, the circuit court is then to determine if the decision was reasonable in light of the standards set forth in Strickland v. Washington, supra, and Kentucky case law for considering claims of ineffective assistance of counsel under RCr 11.42 or if a new trial is merited. The judgment of the Union Circuit Court is vacated and this matter is remanded for further proceedings consistent with this opinion. ALL CONCUR. -12- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Melanie Ann Foote Assistant Public Advocate Frankfort, Kentucky Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky -13-

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