FEGLEY (JESSE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 1, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001898-MR
JESSE FEGLEY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 04-CR-001065
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
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BEFORE: DIXON AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
DIXON, JUDGE: Appellant, Jesse Fegley, appeals from an order of the Jefferson
Circuit Court denying his motion for postconviction relief pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42. For the reasons set forth herein, we
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Senior Judge Sheila Isaac sitting as Special Judge by assignment of the Chief Justice pursuant
to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
reverse and remand the matter for a new sentencing hearing in accordance with this
opinion.
In April 2004, Appellant was indicted by a Jefferson County Grand
Jury on twelve counts of complicity to first-degree robbery along with his
codefendant, Grant Marksberry.2 Following a jury trial, Appellant was convicted
of six counts of first-degree robbery and was sentenced to sixty years of
imprisonment. Appellant’s convictions and sentence were affirmed on direct
appeal to the Kentucky Supreme Court. Fegley v. Commonwealth, 2008 WL
466150 (Ky. 2008)(2006-SC-000329-MR).
On May 28, 2008, Appellant filed an RCr 11.42 motion in the trial
court raising numerous claims of ineffective assistance of counsel, including
counsel’s failure to object to (1) the trial court’s ruling that a BB gun was a deadly
weapon, and (2) improper testimony by a probation and parole officer. On August
22, 2008, the trial court denied Appellant’s motion without an evidentiary hearing.
This appeal ensued.
In an RCr 11.42 proceeding, the movant has the burden to establish
convincingly that he was deprived of some substantial right that would justify the
extraordinary relief afforded by the postconviction proceeding. Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968).
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), sets forth the standards which measure ineffective assistance of
2
Marksberry entered a guilty plea to twelve counts of second-degree robbery and received a
twenty-year sentence. As part of the plea agreement, Marksberry testified against Appellant.
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counsel claims. In order to be ineffective, performance of counsel must fall below
the objective standard of reasonableness and be so prejudicial as to deprive a
defendant of a fair trial and a reasonable result. Id. “Counsel is constitutionally
ineffective only if performance below professional standards caused the defendant
to lose what he otherwise would probably have won.” United States v. Morrow,
977 F.2d 222, 229 (6th Cir. 1992), cert. denied, 508 U.S. 975, 113 S. Ct. 2969, 125
L. Ed. 2d 668 (1993). Thus, the critical issue is not whether counsel made errors,
but whether counsel was so “manifestly ineffective that defeat was snatched from
the hands of probable victory.” Id.
In considering ineffective assistance, the reviewing court must focus on the
totality of evidence before the trial court or jury, and assess the overall
performance of counsel throughout the case in order to determine whether the
alleged acts or omissions overcome the presumption that counsel rendered
reasonable professional assistance. Strickland; see also Kimmelman v. Morrison,
477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 302 (1986). A defendant is not
guaranteed errorless counsel, or counsel judged ineffective by hindsight, but
counsel likely to render reasonably effective assistance. McQueen v.
Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert. denied, 521 U.S. 1130, 117 S. Ct.
2536, 138 L. Ed. 2d 1035 (1997). The Supreme Court in Strickland noted that a
court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065.
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As he did in the trial court, Appellant first argues that he was denied
effective assistance when his trial counsel failed to object to the trial court’s
preemptive finding that a BB gun was a deadly weapon. Although Appellant
concedes that the trial court’s ruling was correct under the law that existed at the
time of trial, he believes counsel should have nonetheless made an objection to the
law so that the issue could have been reviewed on appeal. We disagree.
As the trial court noted, our Supreme Court on the direct appeal in this
matter squarely addressed the issue, observing:
In Thacker v. Commonwealth, [194 S.W.3d 287, 29091 (Ky. 2006)], we held that the question of whether an
object used in a robbery was a deadly weapon must be
submitted to the jury. Fegley’s trial, however, occurred
before we issued our opinion in Thacker. So Fegley’s
counsel understandably did not make a Thacker-related
objection to the instructions.
Before we issued our opinion in Thacker, we had held
that the issue of whether an object is a deadly weapon
was an issue for the trial court to decide as matter of law.
[Hicks v. Commonwealth, 550 S.W.2d 480, 481 (Ky.
1977)]. Although Thacker obviously overruled our
earlier holding on this point, the controlling law at the
time of Fegley’s trial was that the question of whether an
object was a deadly weapon was a matter for the court
alone to determine.
Fegley, 2008 WL 466150 at *1. The Court further noted that, since the victims
herein testified that they were convinced the BB gun was a deadly weapon, the jury
would have inevitably found that it was such under the principle espoused in
Merritt v. Commonwealth, 386 S.W.2d 727, 729 (Ky. 1965) (“[A]ny object that is
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intended by its user to convince the victim that it is a pistol or other deadly weapon
and does [so] convince him is one.”).3
Certainly, trial counsel could have made an argument for reversal of existing
law at the time of trial. Supreme Court Rules (SCR) 3.130(3.1). However, as
previously stated, “[a] defendant is not guaranteed errorless counsel, or counsel
adjudged ineffective by hindsight, but counsel reasonably likely to render and
rendering reasonably effective assistance.” McQueen, 949 S.W.2d at 71. We
simply cannot conclude that counsel’s failure to anticipate a change in the law
equated to ineffective representation. Sanborn v. Commonwealth, 975 S.W.2d
905, 913 (Ky. 1998), cert. denied, 526 U.S. 1025, 119 S. Ct. 1266, 143 L. Ed. 2d
361 (1999), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d
151 (Ky. 2009).
Appellant next argues that counsel was ineffective in failing to object to
improper testimony offered by a probation and parole officer during the sentencing
phase of trial. Specifically, the officer erroneously testified that Appellant’s
maximum possible sentence was 120 years of imprisonment, when in fact, under
KRS 532.110(1)(c), it was only 70 years of imprisonment. The Commonwealth
used the erroneous information in its closing argument by suggesting to the jury
that they start in the middle between 10 and 120 years, and move up or down
depending on the mitigating and aggravating circumstances. In so doing, the
3
Recently, in Wilburn v. Commonwealth, 312 S.W.3d 321, 327-328 (Ky. 2010), the Kentucky
Supreme Court overruled the decision in Merritt, holding that it is inapplicable to the statutes
now in effect. Again, however, Merritt was the law at the time of Appellant’s trial and direct
appeal.
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prosecutor concluded, “I’m going to ask you to give him a sentence that revolves
around 60 years, plus or minus.” Defense counsel failed to object to either the
probation and parole officer’s testimony or the Commonwealth’s closing
argument. The jury thereafter returned with a recommended sentence of 60 years.
In his direct appeal, Appellant urged our Supreme Court to review the issue
for palpable error under RCr 10.26. However, the Court ruled that Appellant did
not show “that the officer’s erroneous testimony caused him to suffer such severe
prejudice as to necessitate palpable error relief.” Fegley, 2008 WL 466150 at *2.
Appellant now argues to this Court that, had trial counsel objected to the testimony
and/or closing argument, the jury would have likely reached a different sentencing
verdict. We are compelled to agree.
In Robinson v. Commonwealth, 181 S.W.3d 30 (Ky. 2005), the Kentucky
Supreme Court addressed the issue of a probation and parole officer’s incorrect
testimony about good time credits as it related to the defendant’s parole eligibility.
In holding that such constituted palpable error, the Court noted:
The use of incorrect, or false, testimony by the
prosecution is a violation of due process when the
testimony is material. Napue v. Illinois, 360 U.S. 264,
269, 272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This is
true irrespective of the good faith or bad faith of the
prosecutor. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 1196-1197, 10 L.Ed.2d 215 (1963). When the
prosecution knows or should have known that the
testimony is false, the test for materiality is whether
“there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.”
United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392,
2397, 49 L.Ed.2d 342 (1976).
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The question remains whether the testimony
influenced the jury to render a sentence greater than what
it might otherwise have given absent the incorrect
testimony. We believe it did and, for sure, can't say it
didn't. The Commonwealth relied, almost solely, on
Franklin's testimony to persuade the jury to recommend
the maximum sentence. The jury was given information
to consider that was obviously confusing to the very
people who deal with it on a daily basis. There is a
reasonable likelihood that the jury was influenced by the
incorrect testimony.
Robinson, 181 S.W.3d at 38.
Similarly, in Lawson v. Commonwealth, 85 S.W.3d 571, 580 (Ky. 2002), a
probation and parole officer’s incorrect testimony resulted in “the jury believ[ing]
it was considering a range of penalties between ‘goalposts’ of ten (10) years - the
minimum possible sentence - and forty (40) years - the maximum penalty[,]”
when, in fact, the maximum penalty was only twenty (20) years. As in the instant
case, the prosecutor in Lawson relied upon the probation and parole officer’s
incorrect testimony in asking the jury to fix a mid-point sentence of twenty (20)
years. In holding that the defendant was entitled to a new sentencing phase, the
Court concluded:
[B]ecause of the improper information given to the jury
regarding the maximum sentence it could fix, no one will ever
know what sentence the jury would have recommended if it had
deliberated Appellant's punishment in reference to the proper
maximum penalty “goalpost”-twenty (20) years. While we may
reasonably assume that the jury would not have chosen the
minimum penalty of ten (10) years by recommending the
minimum sentence on each offense to be served concurrently
(because the jury did have full knowledge of the minimum
penalty), we have no basis to assume that the jury would
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necessarily have chosen the maximum penalty of twenty (20)
years if it was in possession of full and complete information
about the penalty range. The jury could easily have again
selected the midpoint of the range - fifteen (15) years.
Although we recognize that the trial court may again elect to
sentence Appellant to a total sentence of twenty (20) years, we
believe due process entitles Appellant to a jury
recommendation as to whether the sentences for his convictions
run concurrently or consecutively, and we also know that the
jury's recommendation will be considered by the trial court
before it makes a final decision.
Id. at 582.
We are of the opinion that both Robinson and Lawson dictate that Appellant
is entitled to a new sentencing phase. Admittedly, we are somewhat perplexed that
the Kentucky Supreme Court did not find that the error herein was palpable, as it
did in Robinson. Nevertheless, pursuant to Martin v. Commonwealth, 207 S.W.3d
1, 5 (Ky. 2006),
[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.
Moreover, we are of the opinion that the court’s instructions to the
jury in this regard are equally egregious. It would seem that a court’s instruction
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that a jury may in fact sentence a defendant to a “confinement in the penitentiary”
to a term of years which exceeds the mandates of KRS 532.110(1)(c), is no less
false or incorrect than the testimony of the probation officer or the closing
statements of the prosecuting attorney. As emphasized by the Supreme Court in
Peyton v. Commonwealth, 253 S.W.3d 504, 511 (Ky. 2008),
What is at stake here is judicial transparency. The
judiciary is duty-bound to maintain credibility with the jurors of
this Commonwealth. As a matter of policy, the
Commonwealth's courts should not instruct a jury that they
have options in relegating a sentence for a criminal defendant,
and then take these options away. It is incumbent upon this
Court to ensure that the People have confidence in their
judiciary. Therefore, if we instruct the jury that they have the
power to recommend a sentence with one hand, and then take
that decision away from them with the other, we have failed in
our task to uphold the mandates and ideals of our Constitution.
We conclude that defense counsel’s performance, in failing to
object to the probation and parole officer’s erroneous testimony and/or the
Commonwealth’s closing argument, fell below the objective standard of
reasonableness and was so prejudicial as to deprive Appellant of a reasonable
result. Strickland. Accordingly, Appellant is entitled to a new sentencing phase.
The order of the Jefferson Circuit Court denying Appellant postconviction
relief pursuant to RCr 11.42 is affirmed in part and reversed in part. This matter is
remanded for further proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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