MICHAEL MICKENS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 16, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002303-MR
MICHAEL MICKENS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 01-CR-002131
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
Michael Mickens (Mickens) brings this
appeal from an opinion of the Jefferson Circuit Court, entered
October 6, 2003, summarily denying his pro se motions for postconviction relief pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42, appointment of counsel and an evidentiary
hearing.
Before us, Mickens claims that he is entitled to an
evidentiary hearing on four issues pertaining to ineffective
assistance of counsel on his guilty plea.
We affirm three
issues that can be refuted from the face of the record.
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Mickens' allegations of counsel's ineffectiveness for failure to
investigate witnesses who could testify to a warrantless search
of the residence, prior to the execution of the search warrant,
cannot be refuted from the record.
For the following reasons,
we vacate and remand for an evidentiary hearing as to that issue
only.
Testimony and exhibits of record from a suppression
hearing established the following: 2
In the early morning hours
of May 9, 2001, Metro Police Narcotics Detective Rodney Seelye
received information from a confidential informant that Mickens,
who lived at 4404 Petersburg Road with his mother, was selling
large quantities of cocaine.
The residence was put under
surveillance for drug activity.
A vehicle seen arriving at the
residence and leaving a short time later was followed by Metro
Police Detective John Lewis.
When the vehicle was stopped for
speeding, driver/co-defendant Anthony Graham was making a cell
phone call.
Graham was searched and one-half ounce of cocaine
and marijuana was found in his pocket.
p.m.
He was arrested at 11:30
Detective Lewis contacted Metro Police Sergeant Larry
Colburn who was still on surveillance of the residence and
informed him of the stop, the discovery of the cocaine, and that
at the time of the stop Graham had been on a cell phone.
2
According to comments at the beginning of the suppression hearing, codefendant Anthony Graham and his counsel had been present in court the
previous day but had indicated that they would not be present for Mickens'
suppression motions.
-2-
Contemporaneous with the stop of Graham and relay of
information from Detective Lewis, Sergeant Colburn observed
Mickens leave the residence, get in a vehicle and drive away,
all while on a cell phone.
On Detective Seelye's directive,
Sergeant Colburn stopped Mickens about a mile from the
residence.
When stopped, Mickens was advised that a vehicle
containing drugs had just been stopped leaving his residence.
Mickens denied any knowledge of any drugs and consented to a
search of his vehicle, which yielded nothing.
When asked if he
would consent to a search of the residence, Mickens told the
officers that he could not give consent because it was his
mother's house.
The officers advised Mickens that they would obtain a
search warrant.
While in this process, Mickens was detained and
placed in Sergeant Colburn's vehicle.
He was advised of his
rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), and returned to the residence.
After being advised of his rights, on the way back to the
residence, Mickens indicated that there were no drugs at the
residence.
Sergeant Colburn commented that if any drugs were
found in the residence they must, then, belong to Mickens'
mother.
Mickens thereafter admitted that he was not a big dope
dealer and he only had one ounce of cocaine in the house.
-3-
Based on the information from the confidential
informant that put the surveillance of the residence in motion,
Detective Seelye had typed up an affidavit for a search warrant
before the surveillance began.
After Mickens' admission as to
the cocaine, Detective Seelye added a handwritten notation to
the affidavit referencing the recent activity at the residence
and Mickens' admission.
The search warrant was presented to
Jefferson District Judge Virginia Whittinghill, who signed it at
12:35 a.m. on May 10, 2001.
She also initialed Detective
Seelye's handwritten notation.
Mickens' mother was present when
the warrant was executed on the residence, and he apologized
several times to her for dealing drugs out of her house.
Mickens was also present at the residence during the search and
he showed the officers about one ounce of cocaine located there.
Mickens was arrested at 1:23 a.m.
On September 6, 2001, the Jefferson County Grand Jury
charged Mickens with two counts of first degree trafficking in a
schedule II controlled substance (cocaine), 3 and one count of
illegal use or possession of drug paraphernalia. 4
Graham was
indicted as a co-defendant on one count of first degree
trafficking in a schedule II controlled substance (cocaine), as
3
Kentucky Revised Statutes 218A.1412, a class C felony.
4
Kentucky Revised Statutes 218A.500, a class A misdemeanor.
-4-
well as one count of illegal possession of a controlled
substance, schedule I hallucinogen (marijuana). 5
In preparation for trial, Mickens' counsel filed
several suppression motions:
1) a motion to reveal the identity
of a confidential informant, or alternatively to exclude any
statements made by him or evidence viewed or handled by him; 2)
a motion to suppress evidence seized from an illegal stop and
search; and 3) a motion to suppress Mickens' statements.
A
suppression hearing was held on April 19, 2002.
At the hearing, the Commonwealth refused to reveal its
confidential informant, but did concede in response to Mickens'
first motion that it may not introduce at trial any information
or statements made by the informant in that such information
constituted inadmissible hearsay pursuant to Kentucky Rules of
Evidence 802.
The circuit court signed an order to that effect,
which was entered May 10, 2002.
The hearing continued on Mickens' remaining motions:
1) to suppress evidence seized from an illegal stop and search,
and 2) to suppress Mickens' statements.
Detective Seelye and
Sergeant Colburn were the only witnesses, and they testified to
facts as indicated above.
During the hearing the parties broke several times to
discuss plea negotiations.
5
On the video record of the
Kentucky Revised Statutes 218A.1422, a class A misdemeanor.
-5-
suppression hearing, Mickens was adamant several times that he
would not accept more than ten years to resolve both this
indictment and Indictment Number 01-CR-002789, pending in
another division of Jefferson Circuit Court. 6
After several
offers and discussions Mickens accepted the Commonwealth's offer
on a plea of guilty pursuant to North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), agreeing to a
sentence of nine years each on the two felony trafficking counts
as charged, and a sentence of twelve months on the misdemeanor
possession count as charged, all sentences to run concurrently
for a total of nine years but consecutive to any other
sentences.
As part of the agreement, Mickens agreed not to seek
probation, shock probation, or early release, except for parole,
and to forfeit all items seized.
The circuit court accepted the
plea as voluntary after conducting a colloquy pursuant to Boykin
v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
At the same time, the circuit court accepted another
Alford plea in Indictment Number 01-CR-002789 to one year on an
amended charge of illegal possession of a schedule II controlled
substance (cocaine); 7 twelve months on illegal possession of drug
6
This indictment charged Mickens with Kentucky Revised Statutes (KRS)
218A.500, illegal use or possession of drug paraphernalia, a class A
misdemeanor; KRS 218A.1422, illegal possession of a controlled substance,
schedule I hallucinogen (marijuana), a class A misdemeanor; and KRS
218A.1412, first degree trafficking in a schedule II controlled substance
(cocaine), a class C felony.
7
Kentucky Revised Statutes 218A.1415, a class D felony.
-6-
paraphernalia; 8 and twelve months on illegal possession of a
controlled substance (marijuana); 9 for a one year sentence to run
consecutively with the instant indictment.
Mickens waived the
pre-sentence investigation and was sentenced on both indictments
to a total of ten years in accordance with his pleas. 10
The Commonwealth noted at the sentencing hearing that
Mickens was presently serving a seven year sentence in
Indictment Number 99-CR-000171, which consecutive to the nine
year sentence on the instant indictment and consecutive one year
sentence on Indictment Number 01-CR-002789 resulted in a total
of seventeen years.
Mickens did not offer any objection to this
statement.
One month later, Mickens' co-defendant, Graham,
pleaded guilty as charged in the indictment to one count of
first degree trafficking in a schedule II controlled substance
(cocaine) and one count of illegal possession of a schedule I
hallucinogen controlled substance (marijuana).
On August 23,
2002, his recommended concurrent sentences of five years and
twelve months, respectively, were probated for five years.
Approximately sixteen months after sentencing, on
September 5, 2003, Mickens, pro se, filed the RCr 11.42 motion
8
Kentucky Revised Statutes 218A.500, a class A misdemeanor.
9
Kentucky Revised Statutes 218A.1422, a class A misdemeanor.
10
The judgment was entered on May 10, 2002.
-7-
that forms the basis for this appeal, alleging ineffective
assistance of counsel for advising him to plead guilty, or
alternatively for failing to advise him to plead guilty
conditionally under RCr 8.09, based on the following alleged
errors during the suppression hearing:
1) failure to impeach
Detective Seelye and Sergeant Colburn on their investigative
report; 2) failure to impeach police testimony as to Graham's
stop and his stop; and 3) failure to challenge Mickens' claim
that the police illegally entered the residence before obtaining
the search warrant.
Mickens also requested an evidentiary
hearing and appointment of counsel.
On October 6, 2003, the circuit court summarily denied
Mickens' motions for RCr 11.42 relief, appointment of counsel,
and an evidentiary hearing:
Mickens' argument focuses on the events
that took place at an April 19, 2002,
evidentiary hearing based on motions made by
Mickens' trial counsel concerning
incriminating statements and other evidence.
Prior to the evidentiary hearing, the
Commonwealth offered Mickens' nine years to
serve on this indictment (01-CR-2131), but
he declined the offer. Then, Mickens'
motion details the evidentiary hearing and
alleges several general faults on the part
of his attorney. After the hearing, though,
Mickens ended up signing the Commonwealth's
Offer on a Plea of Guilty for a reported
nine-year sentence on this 01-CR-2131
indictment. Thus, it appears the (sic)
Mickens is in the exact same circumstance
that he would have been in before the
evidentiary hearing began.
-8-
Because Mickens has not alleged
specific enough faults on the part of his
attorney, because the few instances cited in
his motion do not rise to the "detrimental"
level described by Strickland [v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)], and because it is
unclear how Mickens was prejudiced by this
allegedly detrimental conduct, Mickens'
motion fails to meet the standards and
requirements set forth in Strickland and in
the Rcr (sic) 11.42 rule itself.
This appeal followed.
As stated in Centers v. Commonwealth, 799 S.W.2d 51,
55 (Ky.App. 1990):
It should first be noted that the
effect of entering a voluntary guilty plea
is to waive all defenses other than that the
indictment charges no offense. Quarles v.
Commonwealth, Ky., 456 S.W.2d 693 (1970);
Hendrickson v. Commonwealth, Ky., 450 S.W.2d
234 (1970). A guilty plea constitutes a
break in the chain of events, and the
defendant therefore may not raise
independent claims related to the
deprivation of constitutional rights
occurring before entry of the guilty plea.
White v. Sowders, 644 F.2d 1177 (6th Cir.
1980).
Mickens makes no claim that the indictment herein failed to
charge an offense.
Pursuant to Centers, then, Mickens' guilty plea waived
all defenses unless the plea was involuntary.
Mickens claims
involuntariness through his allegation of ineffective assistance
of counsel.
Rigdon v. Commonwealth, 144 S.W.3d 283, 288-89
(Ky.App. 2004).
As stated in Rigdon, supra:
-9-
In such an instance, the trial court is to
"consider the totality of the circumstances
surrounding the guilty plea and juxtapose
the presumption of voluntariness inherent in
a proper plea colloquy with a Strickland v.
Washington[, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984)] inquiry into the
performance of counsel." Bronk[v.
Commonwealth], 58 S.W.3d [482] at 486 (Ky.
2001) (footnotes omitted). To support a
defendant's assertion that he was unable to
intelligently weigh his legal alternatives
in deciding to plead guilty because of
ineffective assistance of counsel, he must
demonstrate the following:
(1) that counsel made errors so serious that
counsel's performance fell outside the wide
range of professionally competent
assistance; and (2) that the deficient
performance so seriously affected the
outcome of the plea process that, but for
the errors of counsel, there is a reasonable
probability that the defendant would not
have pleaded guilty, but would have insisted
on going to trial. Sparks v. Commonwealth,
Ky.App., 721 S.W.2d 726, 727-28 (1986).
Advising a client to plead guilty is
not, in and of itself, evidence of any
degree of ineffective assistance of counsel.
Beecham v. Commonwealth, Ky., 657 S.W.2d
234, 236-37 (1983). The Kentucky Supreme
Court has stated that "[g]enerally, an
evaluation of the circumstances supporting
or refuting claims of coercion and
ineffective assistance of counsel requires
an inquiry into what transpired between
attorney and client that led to the entry of
the plea, i.e., an evidentiary hearing."
Rodriguez[v. Commonwealth], Ky., 87 S.W.3d
[8] at 11 (2002).
Where the trial court has denied the request for postconviction relief without an evidentiary hearing, our inquiry is
whether the motion states grounds for relief that could not be
-10-
conclusively resolved from the face of the record, and which, if
true, would invalidate the conviction.
Baze v. Commonwealth, 23
S.W.3d 619, 622 (Ky. 2000).
Mickens initially claims that counsel was ineffective
for failing to cross-examine Detective Seelye and Sergeant
Colburn on two inconsistencies between their testimony and
Detective Seelye's investigative report, specifically the
confidential informant's failure to give a specific address or
location of the residence in the investigative report; and the
omission of surveilled activity by Graham and Mickens earlier in
the day, when they left Mickens' mother's house together, went
to the west end of Louisville where the officers lost them in
traffic, and later returned to the house together.
Mickens'
claim regarding the confidential informant's statement is
refuted by the investigative report, as follows:
Detectives received information from a
confidential and reliable informant that
Michael Mickens was selling large quantities
of cocaine from his mother's residence at
4404 Petersburg Road.
The second claim follows from the first paragraph in
the investigative report:
Detectives set up surveillance and
observed Anthony Graham arrive at 4404
Petersburg Road and leave with Michael
Mickens. These 2 suspects were followed to
the west end where they were lost in
traffic. Surveillance was set up on
Petersburg and detectives observed both
-11-
subjects arrive back at 4404 Petersburg and
both entered the residence.
While it is true that neither officer testified regarding the
above paragraph, in that Detective Seelye only testified about
the events surrounding the typed and handwritten portions of the
search warrant and Sergeant Colburn testified about the actual
events the led to the stop of both Graham and Mickens and the
search of the residence, neither were asked to testify about the
earlier surveillance and neither testified contrary to or
inconsistent with the report.
As the record refutes both of
these claims, there was no need for an evidentiary hearing on
this claim.
Mickens also claims that counsel was ineffective in
failing to cross-examine the officers on testimony that
allegedly misled the court into believing that Graham had only
made a brief stop at Mickens' residence consistent with a drug
buy and that Graham was arrested near Mickens' residence.
record refutes this claim.
The
Sergeant Colburn testified that when
the house was under surveillance, one car pulled up, stayed a
short while, and left (consistent with drug transactions), and
was stopped several miles away.
There is nothing contradictory
or inconsistent between this testimony and the arrest slip or
the investigative report, and nothing in the testimony to
-12-
mislead the court.
As the record refutes these allegations, no
evidentiary hearing was required on this issue.
Mickens' above argument evolves into an additional
contention, that counsel was ineffective for failing to crossexamine the officers as to the stop of Mickens, specifically
alleging that as there was no evidence identifying Mickens as
the source of the drugs found on Graham, that the officers did
not have the requisite level of reasonable suspicion to either
make the stop or to detain him once no contraband was discovered
on him or in his vehicle.
The record, however, refutes Mickens'
claim that counsel was ineffective by "failing to call the
officers on their misleading testimonies, subjecting the
Commonwealth's case to meaningful adversarial testing."
Sergeant Colburn testified that he was informed by
Detective Seelye that the stop and search of Graham revealed
drugs, and that Detective Seelye directed him to stop Mickens.
In answering a question as to why Mickens was stopped since
there was no evidence that the drugs on Graham were identified
as coming from Mickens, Sergeant Colburn stated that it is very
common in a drug investigation to see cars pull up to a house
and stay a short period of time and leave, and when Mickens left
he was stopped.
He further explained that Mickens was not
stopped for a traffic violation.
-13-
Not only was Sergeant Colburn's testimony as to the
stop of Mickens not misleading, but counsel subjected the
Commonwealth's case to adversarial testing by filing the
suppression motions, participating at the suppression hearing,
and cross-examining the officers, including Sergeant Colburn's
testimony regarding Mickens' statement.
Counsel was prepared to
brief this particular issue but for Mickens' decision to enter a
guilty plea, once the Commonwealth offered him the ten years he
had originally sought at the beginning of the suppression
hearing. 11
Mickens also claims that counsel was ineffective for
failing to call witnesses to challenge the obtaining and
execution of the search warrant, specifically the irregularities
with regard to the handwritten notation on the affidavit and
Mickens' claim that the police did a warrantless search of the
residence before obtaining the search warrant.
With regard to the handwritten notation on the
affidavit, Mickens' counsel thoroughly questioned Detective
11
A review of the evidentiary hearing indicates that it was Mickens who was
determined to plead if the Commonwealth would make him the right offer.
Before the hearing started, Mickens rejected a ten year offer. Later, he
indicated that he would accept ten years to wrap up this indictment and
pending Indictment Number 01-CR-002789. The frustration of the Commonwealth
was evident but that offer was eventually made and accepted by Mickens.
Mickens was thus able to wrap up a potential of thirty years' incarceration
on both indictments for one-third of that time, ten years. Additionally, at
the time he was currently serving time for a felony making him subject to
indictment as a persistent felon. KRS 532.080. The record is also very
clear that despite his counsel's objection to Mickens being sentenced without
the opportunity to rebut a pre-sentence investigation report, Mickens wanted
to be sentenced that day.
-14-
Seelye with regard to the affidavit in support of the search
warrant, specifically pertaining to the typed portion versus the
handwritten portion.
Detective Seelye's testimony that the
affidavit was typed in preparation for presentation to the judge
and the handwriting was added after the events unfolded in the
field was consistent with the four corners of the document.
search warrant was signed and dated by Judge Whittinghill.
The
She
initialed below the handwritten portion of the affidavit, as
well as over a change in date from "9" to "10."
The credibility
of the officers was within the exclusive province of the circuit
court and we fail to see how the calling of Judge Whittinghill
would have affected the outcome.
We also note that Mickens
chose to plead guilty before counsel had the opportunity to
brief the issue.
The record refutes Mickens' argument; we can
find no error in counsel's actions, as he did thoroughly
question the officers on this issue, and Mickens cannot now
express dissatisfaction with statements to the contrary in his
guilty plea.
The record, however, fails to refute Mickens' argument
that his counsel was ineffective for failing to call witnesses,
such as his mother and neighbors, to dispute the police
officers' testimony that the police searched the residence after
obtaining the search warrant.
Although the officers testified
that they did not search the residence before obtaining the
-15-
search warrant, Mickens claimed in his RCr 11.42 motion that
these witnesses would testify that when he was stopped the
officers took his key ring, tried to open the side door to the
residence, discovered that the lock was broken, opened the door,
entered, and searched the residence, finding the cocaine.
If
true, this testimony has the potential of invalidating the
search warrant and suppressing the fruits of the search.
Therefore, pursuant to Baze, supra, Mickens' RCr 11.42 motion
states grounds for relief that could not be conclusively
resolved from the face of the record, and which, if true, would
invalidate his conviction.
He is therefore entitled to an
evidentiary hearing on the specific issue of whether the
residence was searched prior to obtaining the search warrant.
As a continuation of this argument, Mickens also
claims that counsel was ineffective for failing to advise him,
in light of search and seizure issues including the validity of
the warrant, to conditionally plead guilty pursuant to RCr 8.09
and preserve these issues for appeal.
The circuit court clearly
explained to Mickens that he was waiving his right to appeal his
conviction by pleading guilty and Mickens acknowledged his
understanding.
As the Kentucky Supreme Court stated in Jewell
v. Commonwealth, 725 S.W.2d 593, 595 (Ky. 1987):
A multitude of events occur in the
course of a criminal proceeding which might
influence a defendant to plead guilty or
-16-
stand trial. It would be impossible to
inform a defendant of all facts and all law
which might affect his decision. A
defendant has a right to counsel, and a
right to a proper Boykin hearing prior to
entry of a guilty plea. We believe such
provides sufficient safeguards.
The record refutes this allegation, requiring no evidentiary
hearing.
For the foregoing reasons, the opinion of the
Jefferson Circuit Court is vacated as to that sole issue
pertaining to counsel's ineffectiveness for failing to
investigate witnesses, such as Mickens' mother and neighbors, to
testify to the events surrounding the search of the residence,
which we remand for an evidentiary hearing.
As to the rest of
the opinion, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John W. Stewart
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
-17-
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