MARVIN RAY PENN v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 2, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000455-MR
MARVIN RAY PENN
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 92-CR-00173
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and McANULTY, Judges.
COMBS, JUDGE:
This is an appeal by Marvin Ray Penn from an order
of the Franklin Circuit Court denying his motion for postconviction relief pursuant to Rule of Criminal Procedure (RCr)
11.42.
We vacate and remand for an evidentiary hearing.
On October 21, 1992, Penn was indicted on two counts of
first-degree sexual abuse (KRS 510.110).
Count II charged that
between on or about January 1, 1980, and on or about December 31,
1983, Penn subjected his stepdaughter, B.S., who was then 12 or
13 years of age, to sexual contact by forcible compulsion.
On
this occasion, the victim testified that Penn directed her to lie
down in a bed with him.
She testified that she did as she was
told and that Penn then touched her breasts and digitally
penetrated her.
Count III of the indictment charged that between
approximately January 1, 1981, and December 31, 1984, Penn again
subjected B.S., then 13 or 14 years of age, to sexual contact by
forcible compulsion when he grabbed her, picked her up by the
waist, and sat her in his lap.
B.S. testified that Penn then
raised her blouse and bra and placed his mouth on her breast.
In Count IV of the indictment, Penn was charged with
first-degree persistent felony offender (532.080); however, prior
to the submission of the case to the jury, this count was amended
to second-degree persistent felony offender.
In Count I of the
indictment, Penn had been charged with first-degree sexual abuse
of another stepdaughter.
Count I was severed from the remaining
counts and is not relevant to this appeal.1
The matter was tried on April 8 and April 9, 1996.
The
jury found Penn guilty of two counts of first-degree sexual abuse
and second-degree persistent felony offender.
Penn was sentenced
to five years on each sexual abuse count, enhanced to 10 years
pursuant to the persistent felony offender conviction —
with the
sentences to run consecutively for a total of 20 years to serve.
Judgment and sentencing were entered on April 18, 1996.
On September 4, 1997, the Kentucky Supreme Court
affirmed Penn’s conviction.
On April 15, 1998, Penn filed a
motion to vacate or set aside his judgment and sentence pursuant
1
Counts II, III, and IV were subsequently renumbered as
Counts I, II, and III, respectively. We have referred to the
charges before us as Counts II, III, and IV.
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to RCr 11.42.
By order dated February 3, 1999, the Franklin
Circuit Court denied Penn’s motion without a hearing.
Penn filed
his notice of appeal to this Court on February 11, 1999.
Penn contends that he received ineffective assistance
of counsel because: (1) trial counsel failed to request
instructions on lesser included offenses and (2) trial counsel
threatened to walk out of the courtroom if Penn testified against
his advice.2
In order to establish ineffective assistance of
counsel, a defendant must satisfy a two-part test establishing:
(1) that counsel's performance was deficient and (2) that the
deficiency resulted in actual prejudice affecting the outcome.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984);
accord
Gall v. Commonwealth, Ky., 702
S.W.2d 37 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92
L.Ed.2d 724 (1986).
Unless the movant makes both showings, he
cannot prevail in his attack.
S.Ct. at 2064.
Strickland, 466 U.S. at 687, 104
"The burden of proof [is] upon the appellant to
show that he was not adequately represented by appointed
counsel."
Jordan v. Commonwealth, Ky., 445 S.W.2d 878, 879
(1969).
2
The Commonwealth contends that Penn’s pro se 11.42
motion was too vague to properly preserve the issues raised for
appellate review and that Penn’s brief, which was prepared by
counsel, impermissibly expands on the arguments raised in the
original motion. However, pro se pleadings are not required to
meet the standard of those applied to legal counsel. Beecham v.
Commonwealth, Ky., 657 S.W.2d 234, 236 (1983). In his pro se
11.42 motion, Penn gave adequate notice of his claims of
ineffective assistance of counsel.
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In determining whether counsel was ineffective, a
reviewing court must be highly deferential in scrutinizing
counsel's performance, and the tendency and temptation to "second
guess" must be avoided.
311 (1998).
Harper v. Commonwealth, Ky., 978 S.W.2d
We must look to the particular facts of the case and
determine whether the acts or omissions were outside the wide
range of professionally competent assistance.
Id.
In deciding
whether Penn is entitled to an evidentiary hearing, "[o]ur review
is 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."
Osborne v. Commonwealth, Ky.
App., 992 S.W.2d 860, 864 (1998).
Penn first contends that he was denied effective
assistance of counsel at trial because defense counsel failed to
request instructions on lesser included offenses.
He was
indicted and found guilty of first-degree sexual abuse.
KRS
510.110 provides, in applicable part, that:
A person is guilty of sexual abuse in the
first degree when:
(a) He subjects another person to sexual
contact by forcible compulsion[.]
Between 1980 and 1984, the time-frame during which Penn
committed the crimes charged in the indictment, KRS 510.010(2)
defined “forcible compulsion” to mean:
physical force that overcomes earnest
resistance or a threat, express or implied,
that overcomes earnest resistance by placing
a person in fear of immediate death or
physical injury to himself or another person
or in fear that he or another person will be
immediately kidnapped.
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Penn argues that the record of this case clearly
supports his contention that instructions on lesser included
offenses would have been justified if requested.
Specifically,
Penn contends that the testimony presented at trial would have
justified an instruction under second-degree sexual abuse (KRS
510.120) and third-degree sexual abuse (KRS 510.130).
KRS
510.120 provides, in part, that:
(1) A person is guilty of sexual abuse in the
second degree when:
. . . .
(b) He subjects another person who is less
than fourteen (14) years old to sexual
contact.
KRS 510.130 provides, in part, that
A person is guilty of sexual abuse in the
third degree when:
(a) He subjects another person to sexual
contact without the latter's consent.
At the time the crimes were committed, KRS 510.010(7)
defined “sexual contact” to mean,
any touching of the sexual or other intimate
parts of a person not married to the actor
done for the purpose of gratifying the sexual
desire of either party[.]
In its September 4, 1997, opinion, the Supreme Court
cogently summarized the evidence in the case as follows.
The Commonwealth’s evidence at trial
consisted of the testimony of the victim,
B.S., and her two sisters. B.S. testified
that on one occasion she and her younger
sister were at home with appellant.
Appellant sent the younger sister outside to
search for the family’s cat. Upon being
alone with B.S., appellant told B.S. to come
to bed and lay [sic] down. He pulled the
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bedcovers over them and laid [sic] down on
his side with his weight next to B.S.. B.S.
told him no and tried to get up, but
appellant had a hold of her and he put his
hand inside of her pants and his finger in
her vagina. Later that same evening, B.S.
told her mother about the incident of abuse.
B.S. testified that her mother responded by
stating that all B.S. “was doing was telling
a bunch of lies and if I ever told another
lie like that again, that she would beat me
to death.” B.S. stated that it was because
of this threat by her mother that she waited
until she was an adult to tell anyone about
the second instance of abuse.
On the second occasion, B.S. related to the
jury how she was alone with appellant in the
kitchen and appellant picked B.S. up and put
her on his lap. Appellant then lifted her
shirt and her bra and placed his mouth on her
breast.
The Supreme Court determined that Penn was not entitled
to a directed verdict on the first-degree sexual abuse charge
because “it would not be clearly unreasonable for the jury to
find guilt based on the definition [of forcible compulsion] as
provided in the jury instructions.”
In summary, the Supreme
Court found that the forcible compulsion element of first-degree
sexual abuse had been met.
That analysis does not mean, however, that Penn was not
entitled to an instruction on a lesser-included offense.
An instruction on a lesser included offense
is appropriate if, and only if, on the given
evidence a reasonable juror could entertain a
reasonable doubt as to the defendant's guilt
of the greater offense, but believe beyond a
reasonable doubt that the defendant is guilty
of the lesser offense.
Taylor v. Commonwealth, Ky., 995 S.W.2d 355, 362 (1999).
Our law
requires the Court to give instructions "applicable to every
state of the case covered by the indictment and deducible from or
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supported to any extent by the testimony."
Ky., 329 S.W.2d 57, 60 (1959).
Lee v. Commonwealth,
While Penn did not testify and
chose to rest without calling any witnesses, “[e]vidence
supporting [a lesser-included offense] instruction does not
necessarily need to come from the defendant himself, but may come
from the prosecution[.]”
Commonwealth v. Collins, Ky., 821
S.W.2d 488, 491 (1991).
The testimony was ambiguous as to the degree of force
used or threats made, and instructions on second-degree sexual
abuse and third-degree sexual abuse were warranted under the
evidence presented by the Commonwealth.
More importantly, the
pertinent statutes (KRS 510.120 and KRS 510.130) defining the
lesser included offenses were clearly relevant to the conduct
alleged in this case.
The testimony of the victim discloses that
Penn subjected her to “sexual contact,” an element unquestionably
common to the statutory definitions of first, second, and thirddegree sexual abuse.
(KRS 510.010(7))
In summary, guilt of a lesser included offense was
deducible from the testimony, and a reasonable juror could have
entertained reasonable doubt as to whether Penn used physical
force sufficient to overcome earnest resistance so as to be
guilty of first-degree sexual abuse — while nonetheless believing
beyond a reasonable doubt that he was guilty of a lesser included
offense.
However, the failure of trial counsel to request
lesser-included instructions even though such instructions were
warranted does not automatically equate with ineffective
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assistance of counsel.
Because of the difficulties inherent in
making a fair assessment of attorney performance,
a court must indulge a strong presumption
that counsel's conduct falls within the wide
range of reasonable professional assistance;
that is, the defendant must overcome the
presumption that, under the circumstances,
the challenged action 'might be considered
sound trial strategy.'
Commonwealth v. Pelfrey, Ky., 998 S.W.2d 460, 463 (1999) (quoting
Strickland, 466 U .S. at 689, 104 S.Ct. at 2065) (Emphasis
added.)
Pursuant to this reasoning, we must indulge the
presumption that trial counsel did not seek a lesser included
offense as a function of deliberate trial strategy aimed at
achieving a complete acquittal.
Counsel could have believed that
the Commonwealth had failed to meet its burden of proving
forcible compulsion.
This presumption, however, is refuted by the record.
The Supreme Court opinion on direct appeal quotes — or
paraphrases — trial counsel as having stated conclusively to the
trial court that “there were no lesser included offenses upon
which to instruct the jury.”3
Penn cites to this same statement
by trial counsel and offers it as proof that trial counsel
3
In his direct appeal, Penn raised the trial court’s
failure to instruct for lesser included offenses — as contrasted
with trial counsel’s failure. The Supreme Court cited this
statement by trial counsel as its basis for rejecting Penn’s
argument, stating that “[a] defendant cannot pursue one theory at
the trial court level and another on the appellate review.” See
Commonwealth v. Duke, Ky., 750 S.W.2d 432, 433 (1998).
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“obviously did not know the law.”4
The Supreme Court had
characterized the statement as a “theory.”
If trial counsel failed to request instructions on
lesser included offenses because of his professional miscue in
not recognizing that such instructions were warranted by the
evidence presented, then he indeed rendered ineffective
assistance under the deficiency prong of Strickland.
Similarly,
if the lesser included instructions had been given, there is a
reasonable probability that the outcome of the trial may have
been different — thereby satisfying the prejudice prong of
Strickland.
Because we are unable to determine from the face of
the record whether trial counsel’s decision not to request lesser
included offense instructions was based upon deliberate trial
strategy or upon his failure to recognize that such instructions
were warranted, we vacate the order of the Franklin Circuit Court
as to this issue and remand for an evidentiary hearing.
Wilson
v. Commonwealth, Ky. 975 S.W.2d 901, 904 (1998); RCr 11.42(5).
Penn’s second contention is that he received
ineffective assistance of counsel when trial counsel threatened
to walk out of the courtroom if Penn testified against his
advice.
Penn avers that he wanted to testify in order to deny
the accusations against him but that his attorney vehemently
disagreed, telling him that he did not believe that Penn should
4
Penn provides a citation to this statement; however
the statement does not appear at that cite. Nor does the
statement appear within the video sequence where trial
instructions were discussed. We have been unable to locate the
statement on the videos. We have proceeded with our analysis
based on the proviso that it was made.
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testify and that if he insisted on doing so, he (the attorney)
was going to walk out of the courtroom.
“The decision whether to take the witness stand is
solely on the defendant . . . .”
Payne v. Commonwealth, Ky. 623
S.W.2d 867, 877 (1981) (cert. denied, 102 S.Ct. 1758, 456 U.S.
909, 72 L.Ed.2d 167).
Furthermore, trial counsel was without
authority to withdraw unilaterally from the case and walk out of
the court room.
See Kentucky Bar Association v. Devers, Ky., 936
S.W.2d 89 (1996).
If trial counsel did not inform Penn that the
decision whether to testify was ultimately Penn’s choice alone,
and if he compounded that error by threatening Penn with walking
out of the courtroom if Penn chose to testify, we would be
compelled to find deficient performance.
The face of the record
simply does not reveal whether this incident actually occurred as
described by Penn.
well.
Therefore, we vacate as to this issue as
On remand, Penn should be permitted to address this
allegation of ineffective assistance of counsel at an evidentiary
hearing.
For the foregoing reasons, we vacate the order of the
Franklin Circuit Court denying the appellant’s RCr 11.42 motion
without a hearing.
We remand for a hearing on the motion and for
other proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth W. Smith
Lexington, KY
Albert B. Chandler III
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, KY
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