NED C. SNEIDERMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 6, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001595-MR
AND
NO. 2003-CA-001718-MR
NED C. SNEIDERMAN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 00-CR-001598
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; TACKETT, JUDGE; AND EMBERTON,
SENIOR JUDGE.1
TACKETT, JUDGE:
Ned Sneiderman appeals from two judgments of
the Jefferson Circuit Court denying his motion for a new trial
and his motion to vacate the judgment sentencing him to thirteen
years’ imprisonment on charges of first-degree robbery and
fourth-degree assault.
These appeals arose from the disposition
of a single indictment against Sneiderman, and therefore, both
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2002-CA-1595 and 2003-CA-1718 will be decided in a single
opinion.
Upon careful consideration of the issues raised by
Sneiderman, we affirm the judgments of the Jefferson Circuit
Court.
Sneiderman was charged, in indictment 2000-CR-001598,
with two counts of first-degree robbery and one count of fourthdegree assault.
The offenses occurred on May 20, 2000, when
John Muzic and Larry Jones were returning to their home in
Louisville with the proceeds of a bingo fundraiser.
Jones had
already entered the house when Sneiderman approached Muzic, who
was carrying a laptop computer and $12,000.00-$14,000.00 cash in
a briefcase.
Sneiderman, dressed all in dark clothing and
wearing a ski mask, placed a gun against Muzic’s side and
demanded the money.
Muzic attempted to hand him the laptop
computer, but Sneiderman refused to take it and the two began
struggling over the briefcase.
From inside the house, Jones
heard Muzic’s voice and another familiar voice.
He opened the
door to go outside and help Muzic, but Muzic was standing with
his back against the door and was knocked into the bushes by the
opening door.
Jones began struggling with Sneiderman and
Sneiderman dislocated Jones’ shoulder and hit him in the jaw.
As a result, Jones lost several teeth and was forced to undergo
oral surgery to have tooth implants.
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Sneiderman escaped into the parking lot; however, his
ski mask had become turned around during his struggles and he
could not see where he was going.
He stopped under a
streetlight and pulled off the mask to get a look at his
surroundings before fleeing the scene.
Both Jones and Muzic got
a clear view of the perpetrator’s face at that point and, since
they were previously acquainted with Sneiderman, they were able
to identify him without difficulty.
In fact, Sneiderman had
been a volunteer at the twice-weekly bingo functions for six
months working with Muzic and Jones.
Sneiderman, who had been
let go as a volunteer the night before, would have been aware
that the pair would be returning home with a substantial amount
of cash that evening.
Muzic and Jones called to report the
robbery to the police and informed them that Sneiderman was the
perpetrator.
Officers searching Sneiderman’s apartment found a
handgun hidden in a baby bed which both Muzic and Jones
identified as being the weapon used during the robbery.
Sneiderman went to trial on the charges in indictment
2000-CR-001598 and, on May 31, 2002, a jury convicted him of
first-degree robbery for the count regarding Muzic, acquitted
him of the first-degree robbery count regarding Jones, and
convicted him of fourth-degree assault against Jones.
Rather
than face a jury sentencing with a possible penalty range of ten
to twenty years’ imprisonment, Sneiderman reached an agreement
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with the Commonwealth.
In exchange for a sentencing
recommendation of thirteen years, he waived his right to any
appeal of these two convictions.
The trial court conducted a
colloquy to ascertain that Sneiderman’s waiver was voluntary,
knowing, and intelligent, accepted the sentencing
recommendation, and incorporated the waiver of his right to
appeal into the final judgment.
Sneiderman also waived the
presentence investigation report and, since he was not eligible
for probation, the trial court imposed a sentence of thirteen
years’ imprisonment immediately.
Subsequently, it came to Sneiderman’s attention that a
bottle of prescription stomach medication had mistakenly been
taken to the jury room during deliberations inside an envelope
which also contained the handgun.
There was no mention of drugs
or medication during the trial and this item was never
introduced as evidence.
Sneiderman filed a motion for a new
trial alleging irregularities in the introduction of evidence
during jury deliberations.
The trial court denied his motion
without a hearing after ruling that it had been filed in an
untimely manner.
Sneiderman’s appellate counsel filed a brief
stating there were no appealable issues that he could raise in
good faith before this court and, thus, we permitted him to
withdraw as counsel.
Sneiderman filed a pro se brief raising
the issue of the jury being permitted to examine a bottle of
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medication which was irrelevant to the case at hand and never
introduced as evidence.
2002-CA-1595.
This appeal was assigned the number
While the first appeal was pending before this
court, Sneiderman filed an additional motion with the trial
court to vacate the judgment against him, pursuant to Kentucky
Rule of Civil Procedure (CR) 60.02.
As grounds for this motion,
he alleged that he was mentally incompetent at the time he
entered into the agreement with the Commonwealth to accept a
thirteen-year sentence and waive his right to any appeals, that
his attorney was ineffective for advising him to accept such an
offer, and that the inadvertent introduction of the bottle of
stomach pills unfairly influenced the jury’s verdict against
him.
The trial court denied this second motion without a
hearing, and this appeal followed.
The appeal from the denial
of Sneiderman’s CR 60.02 motion was assigned the number 2003-CA1718 and consolidated with number 2002-CA-1595.
In support of his appeal from the trial court’s denial
of the motion for a new trial, Sneiderman argues that the jury
improperly considered evidence that was not admitted in reaching
its verdict.
After the jury convicted him of first-degree
robbery and fourth-degree assault, Sneiderman waived his right
to appeal these convictions in exchange for a thirteen-year
sentence which was significantly less than the twenty years he
was facing.
The trial court conducted a colloquy and
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ascertained that Sneiderman’s waiver was knowing, intelligent
and voluntary and, therefore, valid.
right to appeal these convictions.
Ky., 703 S.W.2d 882 (1986).
Consequently, he has no
Weatherford v. Commonwealth,
Nevertheless, we find no evidence
to support Sneiderman’s contention that the bottle of
prescription stomach medication prejudiced the jury and
improperly influenced its decision to convict him of robbery and
assault.
There was no mention of drugs or medication during the
trial, and Sneiderman’s counsel conceded that it would not have
been possible for the jurors to mistake the medication for any
type of illicit drug.
Moreover, both Jones and Muzic were able
to positively identify Sneiderman as the perpetrator of the
crimes against them after seeing his face under a streetlight
because they were both acquainted with him due to his prior
volunteer work at bingo fundraisers. In light of these
considerations, the trial court acted properly in denying
Sneiderman’s motion for a new trial.
Sneiderman raises three issues in support of his CR
60.02 motion.
First, he alleges that he was mentally
incompetent to enter into the agreement with the Commonwealth
wherein he waived his right to any appeal in exchange for a
thirteen-year sentence.
Sneiderman claims that he was suffering
from a lack of sleep and unable to think properly because the
jail was depriving him of anti-depressive medication during his
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trial.
The sentencing agreement was reached after a jury trial
that had lasted for several days.
Sneiderman gave testimony
during the defense portion of the trial, and there was no
indication during the proceedings that he was incompetent.
Furthermore, the records from the jail appear to reflect that
Sneiderman was receiving his medication during the period of the
trial.
Once again, we would point out that the trial court
conducted a lengthy colloquy to insure that Sneiderman
understood his rights and wanted to waive his right to appeal
his convictions in exchange for a sentence in the lower portion
of the penalty range.
Moreover, the trial court is in the best
position to determine whether a defendant shows signs of
incompetence.
(1990).
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51
We do not believe that Sneiderman has demonstrated any
evidence of incompetence which is not refuted on the face of the
trial court’s record.
Next, Sneiderman raises the issue of the jury’s
improper consideration of the bottle of stomach medication
during its deliberation.
CR 60.02 provides an avenue for
raising issues that could not be addressed on direct appeal or
in a motion for relief pursuant to Kentucky Rule of Criminal
Procedure 11.42.
(1997).
McQueen v. Commonwealth, Ky., 948 S.W.2d 415
This issue was in fact raised in Sneiderman’s appeal
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from the denial of his motion for a new trial and, therefore, is
not cognizable for review under a CR 60.02 motion.
Finally, Sneiderman contends that his trial counsel
acted ineffectively in advising him to waive his right to appeal
his convictions in exchange for a thirteen-year sentence.
When
this agreement was reached, the jury had already found
Sneiderman guilty of the offenses of first-degree robbery and
fourth-degree assault.
Sneiderman claims that his trial counsel
told him that the jury would sentence him to twenty years’
imprisonment and that counsel’s advice to accept the sentencing
agreement was ineffective because counsel could not know for
certain what sentence the jury would recommend.
In order to
establish ineffective assistance of counsel, Sneiderman must
demonstrate that counsel’s performance fell below an objective
standard of reasonableness and that counsel’s ineffective
assistance prejudiced his defense.
446 U.S. 668 (1984).
Strickland v. Washington,
Furthermore, when a defendant enters a
guilty plea, he must show that, but for counsel’s ineffective
assistance, he would have insisted on going to trial.
Lockhart, 474 U.S. 52 (1985).
Hill v.
Although Sneiderman had already
been tried in order to determine his guilt on the offenses
charged, he chose to forego his right to a jury trial on the
sentencing portion of the case.
Sneiderman was well aware that
the jury could have recommended a sentence in the ten to twenty
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year range, thus, he could have received a slightly lower
sentence or a significantly longer sentence from the jury.
His
decision to accept a thirteen-year sentence in exchange for
waiving his right to any appeals was a gamble on the outcome of
the sentencing phase of the trial.
Ky., 3 S.W.3d 738 (1999).
Commonwealth v. Stanger,
He has failed to demonstrate that his
counsel’s speculation that the jury would have recommended a
higher sentence fell outside the bounds of reasonable
performance on the part of counsel.
For the foregoing reasons, the judgments of the
Jefferson Circuit Court denying both Sneiderman’s motion for a
new trial and his motion, pursuant to CR 60.02, to vacate the
judgment of guilt and sentence of thirteen years’ imprisonment
are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ned C. Sneiderman, Pro Se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, Kentucky
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