CANTRELL (BRENT) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 17, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001595-MR
BRENT CANTRELL
v.
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 06-CR-00019
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES.
CLAYTON, JUDGE: Brent Cantrell appeals from an order of the Johnson Circuit
Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to
vacate his May 19, 2007 conviction, and remand for a new trial. Or, in the
alternative, for the Court of Appeals to remand for another hearing on the RCr
11.42 motion. The basis of Cantrell’s RCr 11.42 collateral attack on his conviction
is that he received ineffective assistance of counsel. After careful consideration of
the issues, we find no error and affirm the decision of the trial court.
We adopt the facts as set forth by the Supreme Court of Kentucky on
Cantrell’s direct appeal:
On the morning of January 27, 2006, the Johnson
County Sheriff’s Department received a tip that a
methamphetamine lab was in operation in a trailer
located on property owned by Brent Cantrell's father.
Three members of the Johnson County Sheriff’s
Department proceeded to the location in three separate
cruisers.
When Deputy Tom Wyatt drove up to the trailer,
he noticed Brent Cantrell and Shawna Dalton climbing
out an open window and running away. Although it was
late in January, Cantrell was wearing only a t-shirt, jeans,
and shoes. Dalton was wearing a t-shirt and jeans, but no
shoes. Deputy Barry Mayes also observed Cantrell and
Dalton climbing out the window and running away.
Officer Mayes ordered the pair to stop and they were
apprehended. The officers detected the odor of ammonia
on both Cantrell and Dalton.
Cantrell gave the officers permission to search the
trailer. A strong caustic odor permeated the air around
the residence. Upon entry, the officers encountered a
foggy haze and more of the strong caustic odor which
had been detected outside. In fact, one of the officers
began coughing so much because of the fumes that he
had to be treated at a local hospital. Inside the trailer, the
officers discovered all the chemicals and equipment
necessary for the manufacturing of methamphetamine.
An individual by the name of Dale Wells was found
passed out on a bunk in a back bedroom. A video
surveillance system was also discovered inside the trailer,
with the camera focused on the driveway leading up to
the residence.
Deputy Boyce Williams collected and
photographed evidence from the trailer. Among the
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evidence collected were cans of butane fuel, a butane
torch, ph strips, tubing, kitty litter, a coffee pot, coffee
filters, a funnel, a beaker, a mason jar, and hollowed-out
light bulbs. Two hollowed-out light bulbs containing
residue and three bottles were sent to the Kentucky State
Police Laboratory for testing. Lab results showed that
these items contained methamphetamine.
Cantrell v. Com., 288 S.W.3d 291, 292-93 (Ky. 2009).
At the conclusion of the jury trial, Cantrell was found guilty of
complicity to manufacture methamphetamine; complicity to possession of a
controlled substance in the first degree (methamphetamine); complicity to
use/possession of drug paraphernalia; and of being a second-degree persistent
felony offender. In accordance with the jury recommendation, the trial court
sentenced Cantrell to a fifty-year sentence of imprisonment. The Kentucky
Supreme Court, in the aforementioned case, issued a unanimous opinion, which
affirmed Cantrell’s conviction. Id. at 300.
On June 28, 2007, during the pendency of the direct appeal, Cantrell,
with the assistance of counsel from the Department of Public Advocacy, filed this
RCr 11.42 motion. In this motion, Cantrell contended that he received ineffective
assistance of counsel for the following reasons: trial counsel only spoke with him
at judicial hearings; trial counsel did not discuss trial strategy with him; trial
counsel did not interview witnesses; trial counsel failed to properly inform him of
the Commonwealth’s plea offer, trial counsel was not prepared for trial and led
him to believe that the trial would be continued; trial counsel did not review the
potential jury list; and finally, trial counsel had serious mental and physical health
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conditions during the trial, which rendered him unable to appropriately represent
him.
On July 6, 2007, the trial court held a hearing on the RCr 11.42
motion. The Commonwealth declined to call any witnesses and Cantrell called
only one witness, his former attorney, Lowell E. Spencer. In response to Cantrell’s
arguments of ineffective assistance of counsel, Spencer testified that while he met
with Cantrell prior to the trial only in the courtroom, he made repeated efforts to
get Cantrell to come to his office but Cantrell would not cooperate. And although
he did not meet with the trial witnesses, Cantrell’s father brought him the list of
witnesses and advised him about their testimony. Spencer met with Cantrell’s
father five to eight times prior to trial.
At the conclusion of the hearing, the trial judge denied Cantrell’s RCr
11.42 motion and opined that Spencer had presented a “stout defense” and
“vigorously defended” the case. An order memorializing the ruling was issued on
July 9, 2007. Thereafter, Cantrell appealed the denial of his motion to this Court.
On June 2, 2008, our Court held this appeal in abeyance until the
outcome of the direct appeal before the Kentucky Supreme Court. Following the
rendering of that decision, this appeal was returned to the active docket. We then
granted the Department of Public Advocacy’s motion to withdraw as counsel and
set another briefing schedule. On January 21, 2010, Cantrell’s new counsel filed
an entry of appearance and a motion to remand this matter to the trial court in order
to supplement the certified record on appeal and for an extension of time to file a
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brief. In particular, Cantrell asked to remand this matter to the trial court for
further testimony and attached affidavits and statements indicative of his claims
that the original attorney failed to investigate and prepare. The Commonwealth
opposed Cantrell’s motion and noted that his request for another evidentiary
hearing was frivolous. Our Court denied Cantrell’s motion to remand on April 21,
2010, but granted his request for more time to file the brief.
In essence, Cantrell maintains that he was denied effective assistance
of counsel because his trial counsel’s performance did not meet an objective
standard of reasonableness and he was prejudiced by the deficiency for the
following reasons. In particular, Cantrell claims that his trial counsel failed to
investigate his case, failed to adequately counsel him about his right to testify,
provided insufficient counsel during the plea bargaining phase, and finally, trial
counsel’s performance was materially affected by his health problems.
Thus, Cantrell maintains that the alleged deficiency caused prejudice since his case
was not adequately presented, and therefore, he did not receiving a fair trial or a
reliable verdict. In contrast, the Commonwealth counters that the trial court
correctly denied Cantrell’s RCr 11.42 motion because it was procedurally
defective; counsel did adequately prepare and investigate the case; counsel did
adequately counsel his client about his right to testify and the plea bargain offer;
and lastly, no evidence has been provided that counsel’s health problems adversely
affected the legal services provided Cantrell.
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As the parties are well aware, the standard for addressing a claim of
ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To be found ineffective, counsel’s
performance must first be shown to be below the objective standard of
reasonableness and second must be shows as so prejudicial as to deprive the
defendant of a fair trial and a reasonable result. Id. The reviewing court when
reviewing an appeal from the denial of a claim of ineffective assistance must focus
on the totality of evidence before the lower court and assess the overall
performance of counsel throughout the case in order to determine whether the
“ʻidentified acts or omissions’ overcome the presumption that a counsel rendered
reasonable professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 386,
106 S.Ct. 2574, 2589, 91 L.Ed.2d 305, 54 USLW 4789 (1986). Further, to
ascertain whether counsel was ineffective, a reviewing court “must be highly
deferential in scrutinizing counsel’s performance,” and second-guessing should be
avoided. Harper v. Com., 978 S.W.2d 311, 315 (Ky. 1998).
Finally, under Strickland, Cantrell must show that but for the alleged
ineffective assistance, a reasonable probability exists that the outcome of the
proceeding would not only have been different, but would have been more
favorable to him. And it is not enough merely to demonstrate the existence of
ineffective assistance of counsel. Cantrell must also show that but for the alleged
ineffective assistance, the outcome of the trial would have been different. Gall v.
Com., 702 S.W.2d 37, 39 (Ky. 1985).
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To begin our analysis of Cantrell’s claim of ineffective assistance of
counsel, we note that initially, as the Commonwealth highlighted, the motion itself
was procedurally defective since it was not verified as is required. Section two of
RCr 11.42 requires that the motion “be signed and verified by the movant[.]”
Cantrell did not swear to the truth of the statements made in his motion to vacate
the judgment, and thus, the motion might have been summarily dismissed. Fraser
v. Com., 59 S.W.3d 448, 452 (Ky. 2001). Although we do not choose to
summarily dismiss this motion, it is an example of the failure to strictly adhere to
legal procedural requirements found throughout Cantrell’s case.
We will now address Cantrell’s specific charges as to his claims of
ineffective assistance of counsel. In response to Cantrell’s complaint about his
counsel stating at the opening of the trial that he was not ready to begin, the
testimony at the original RCr 11.42 hearing is dispositive on this point. At the
hearing, counsel explained that he made the statement because Cantrell repeatedly
refused to cooperate in preparation for the trial. Indeed, in the trial court’s written
order denying the RCr 11.42 motion, it notes that the preparation and trial strategy
by Cantrell’s counsel were limited by defendant’s failure to cooperate in any way
with counsel.
Next we address Cantrell’s allegations that counsel failed to
investigate properly, did not adequately counsel Cantrell about his right to testify,
provided insufficient counsel during the plea bargaining process, and finally, was
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hampered by health problems, which allegedly, rendered him unable to represent
Cantrell effectively.
With regards to whether Spencer properly investigated Cantrell’s
case, the Commonwealth makes several observations. First, it points out that even
assuming that Spencer should have retained an investigator in this case, it is
Cantrell’s burden of proof to establish any prejudice resulting from this failure, and
he did not do so. As far as counsel’s failure to question witnesses that would
provide testimony placing Cantrell elsewhere at the time of the criminal act,
counsel testified at the RCr 11.42 hearing that he spoke five to eight times with
Cantrell’s father, who informed him about the witnesses’ statements. The
Commonwealth also notes that it was Cantrell’s burden, even assuming that his
attorney should have questioned potential witnesses, to establish prejudice
resulting from counsel not questioning potential witnesses. Cantrell did not do so.
Again, as far as counsel’s supposed failure to investigate jurors, this
claim is also baseless. Importantly, the record reveals that the attorney did file, on
January 22, 2007, a motion for a new trial on the issue of the jurors after it was
brought to his attention by Cantrell’s parents after the trial. Nonetheless, Cantrell
still makes the allegation that counsel did not perform his function with regard to
the jury selection. Cantrell, however, provides no evidence showing any juror’s
incompetence or its pretrial discoverability or that Cantrell could have identified
the jurors (rather than his parents) or even if counsel had asked for these jurors to
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be struck, he would have succeeded. There is no particularity or prejudice to this
charge. Merely offering a conclusory statement does not make the statement true.
In essence, rather than establishing that his counsel’s trial preparation,
including investigation, was inadequate and caused prejudice to his case, Cantrell
has merely shown that he did not cooperate in any way with trial counsel. Refusal
to cooperate with one’s attorney does not equate to inadequate or prejudicial
assistance of counsel.
Next, we review Cantrell’s contentions that his counsel did not
adequately counsel him about his right to testify or provide sufficient counsel
during the plea bargaining process. As to Cantrell’s statement regarding
inadequate counsel about his right to testify, this claim was not raised or mentioned
in his original RCr 11.42 motion. “The appellate court reviews for errors, and a
nonruling is not reviewable when the issue has not been presented to the trial court
for decision.” Turner v. Com., 460 S.W.2d 345, 346 (Ky. 1970). Thus, there is
nothing for the Court to consider.
Regarding the issue of inadequate counsel for the plea bargain,
Cantrell alleges that since the plea bargain was for a ten-year sentence and he
received a fifty-year sentence, he did not receive good counsel. He maintains that
this disparity shows that he was not adequately counseled. But Cantrell must do
much more than raise doubt in order to demonstrate ineffective assistance of
counsel. It is his burden of proof to show that he was not adequately represented.
Dorton v. Com., 433 S.W.2d 117, 118 (Ky. 1968). And further, Cantrell has not
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overcome the strong presumption that counsel rendered adequate assistance.
Strickland, 466 U.S. at 689.
Cantrell’s final argument supporting his claim of ineffective
assistance of counsel is based on his counsel’s alleged poor health. To support his
contention, Cantrell supplies affidavits attesting to his counsel’s poor health with
his motion to remand. Notwithstanding this assertion, clearly, the affidavits
attached to Cantrell’s motion to remand for another RCr 11.42 motion are not a
part of the certified record, and therefore, have no bearing on this case. See U.S.
Bank, NA v. Hasty, 232 S.W.3d 536, 542-543 (Ky. App. 2007). Moreover,
Kentucky Rules of Civil Procedure (CR) CR 76.12(4)(c)(vii) provides that
“[e]xcept for matters of which the appellate court may take judicial notice,
materials and documents not included in the record shall not be introduced or used
as exhibits in support of briefs.” As such, it is improper for an appellate court to
review such material.
Besides the lack of recognizable evidence regarding Spencer’s health,
Cantrell again demonstrated no particularity or prejudice that might stem from this
claim. Plus, Cantrell ignores the record. At the RCr 11.42 hearing, Spencer,
Cantrell’s attorney, testified that he had heart bypass surgery in 2000. By the time
of Cantrell’s 2007 trial, he was working five-and-a-half days per week at eight
hours per day. He denied any physical or mental incapacity. Spencer confirmed
that he had an active law practice and that neither he nor his doctor felt that he was
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unable to practice law. Plus, we have already denied Cantrell’s motion to remand
this matter to the trial court for another evidentiary hearing.
Hence, Cantrell’s claim of error by the trial court in denying his RCr
11.42 motion fails because his assertions of the ineffective assistance of counsel
lack merit. The order of the Johnson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David J. Porter
Paintsville, Kentucky
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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