NEWTON (MARK EDWARD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 1, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000441-MR
MARK EDWARD NEWTON
APPELLANT
ON REMAND FROM KENTUCKY SUPREME COURT
2010-SC-228-D
v.
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 05-CR-00032
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, THOMPSON, AND VANMETER, JUDGES.
VANMETER, JUDGE: This matter is before the court on remand from the
Kentucky Supreme Court, which has ordered us to reconsider Mark Edward
Newton’s appeal in light of its holdings in Leonard v. Commonwealth, 279 S.W.3d
151 (Ky. 2009), and Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006). Having
reconsidered the matter, we affirm the Hardin Circuit Court’s order denying
Newton’s motion for post-conviction relief pursuant to RCr1 11.42.
Newton was convicted of first-degree sodomy (four counts) and received a
sentence of seventy years’ imprisonment and a fine of $4,000. Newton filed a
direct appeal, claiming the trial court improperly admitted evidence of bad
character against him, as well as evidence that bolstered the victim’s testimony.
The Kentucky Supreme Court, finding no error, affirmed his conviction and
sentence.2
Newton then moved pro se to vacate, set aside, or correct his judgment
pursuant to RCr 11.42, alleging ineffective assistance of trial counsel. The trial
court denied his motion. Appeal to this court followed.
This court affirmed the trial court’s denial of Newton’s RCr 11.42 motion,
finding, in relevant part, that because the Supreme Court on direct appeal found no
error with respect to the admission of character evidence and bolstering testimony,
Newton failed to show his case was prejudiced and, therefore, failed to show
ineffective assistance of counsel.3 The Supreme Court undertook discretionary
review of the appeal, and remanded the matter to this court for reconsideration in
light of Leonard and Martin, supra.
In Leonard, the Supreme Court confirmed its holding in Martin, recognizing
that appellate resolution of an alleged direct error under a palpable error standard
1
Kentucky Rules of Criminal Procedure.
2
Newton v. Commonwealth, No. 2005-SC-0496-MR, 2006 WL 2987085 (Ky. Oct. 19, 2006).
3
Newton v. Commonwealth, No. 2009-CA-000441-MR, 2000 WL 743794 (Ky. March 5, 2010).
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of review cannot serve as a procedural bar to a related claim of ineffective
assistance of counsel, since the standard for evaluating potential palpable errors on
direct appeal is more stringent than evaluating a claim of ineffective assistance of
counsel in a post-conviction RCr 11.42 motion. The Court noted that
[w]hen an appellate court engages in a palpable error
review, its focus is on what happened and whether the
defect is so manifest, fundamental and unambiguous that
it threatens the integrity of the judicial process.
However, on collateral attack, when claims of ineffective
assistance of counsel are before the court, the inquiry is
broader. In that circumstance, the inquiry is not only
upon what happened, but why it happened, and whether it
was a result of trial strategy, the negligence or
indifference of counsel, or any other factor that would
shed light upon the severity of the defect and why there
was no objection at trial. Thus, a palpable error claim
imposes a more stringent standard and a narrower focus
than does an ineffective assistance claim. Therefore, as a
matter of law, a failure to prevail on a palpable error
claim does not obviate a proper ineffective assistance
claim.
Leonard, 279 S.W.3d at 157-58 (quoting Martin, 207 S.W.3d at 4-5).
The holdings in Leonard and Martin apply to palpable error review on direct
appeal, which did not occur in Newton’s case. In this case, the Supreme Court
found on direct appeal no error existed with respect to the admission of character
evidence and bolstering testimony; the Court did not undertake a palpable error
review.4 Accordingly, the holdings in Leonard and Martin do not render erroneous
this court’s conclusion that the Court’s finding of no error on direct appeal
4
The concurring opinion of then Chief Justice Lambert does discuss palpable error review, but
the majority opinion makes no such reference.
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precluded Newton from alleging ineffective assistance of counsel relating to these
claims.
With regard to Newton’s remaining claims of ineffective assistance of
counsel, the record reflects that the trial court properly considered and denied those
claims under the Strickland analysis, which requires that in order to prove
ineffective assistance of counsel, a defendant must show: (1) that counsel’s
representation was deficient in that it fell below an objective standard of
reasonableness, measured against prevailing professional norms; and (2) that he
was prejudiced by such deficient performance. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); adopted by Gall v. Commonwealth,
702 S.W.2d 37 (Ky. 1986). Further, “the defendant must overcome the
presumption that counsel provided a reasonable trial strategy.” Brown v.
Commonwealth, 253 S.W.3d 490, 499 (Ky. 2008) (citation omitted).
Here, the trial court found that Newton’s counsel’s decision not to
present character witnesses at trial was a tactical decision, in light of the fact that if
witnesses had been called to testify as to Newton’s character, unfavorable
character evidence in the form of prior bad acts, including details of Newton’s
criminal record, could have been elicited on cross-examination. See KRE5 405(b).
Indeed, counsel for Newton described the presentation of character testimony as a
“double-edged sword.” The court found that none of the identified potential
character witnesses were called at the evidentiary hearing to explain what they may
have testified to and the Commonwealth, therefore, did not have an opportunity to
5
Kentucky Rules of Evidence.
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reveal what information may have been disclosed on cross-examination of these
witnesses. As a result, the court held that Newton failed to present sufficient
evidence to show these character witnesses were willing to testify for him and that
the benefit of their testimony would have outweighed the detriment.
Furthermore, the trial court found that Newton’s counsel’s decision
not to present mitigating evidence during the penalty phase of trial was reasonable
trial strategy. Counsel for Newton testified at the evidentiary hearing that he
recalled discussing with Newton whether to call witnesses during the penalty phase
and recalled reaching an understanding with the Commonwealth to limit the
penalty phase evidence; the Commonwealth agreed not to put the victim and her
family back on the stand and counsel for Newton agreed not to call any mitigating
witnesses. Though this agreement is not documented in the record, the court found
that counsel for Newton exercised reasonable trial strategy by attempting to limit
the potentially devastating impact of the victim’s further testimony and the
potential cross-examination of any witnesses called for mitigation.
The trial court further found that counsel for Newton was not
ineffective for failing to present expert witness testimony. The court referenced
the report of the Commonwealth’s medical expert, who found no physical evidence
of the alleged sodomy of the victim, but stated that in some circumstances, the
passage of time may eliminate proof that may have existed closer to the events’
occurrence. Counsel for Newton explained that he did not feel that obtaining an
expert to examine the victim or to contradict the report of the Commonwealth’s
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medical expert was an appropriate use of resources since he did not believe the
medical report of the Commonwealth’s expert was a substantial negative piece of
evidence in the case, given that the expert found no physical evidence of the
alleged sodomy. The trial court agreed, and concluded that Newton failed to show
that any expert witness would have contradicted the report of the Commonwealth’s
medical expert or that the decision of his counsel not to present an expert witness
affected the outcome of the trial.
The order of the Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Edward Newton, Pro se
Sandy Hook, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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