BOBBY PHILLIPS v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 22, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001391-MR
BOBBY PHILLIPS
v.
APPELLANT
APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 02-CR-00070
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES.
DIXON, JUDGE: Appellant, Bobby Phillips, appeals from an order of the Clinton
Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42.
Finding no error, we affirm.
In September 2002, Appellant was indicted by a Clinton County grand jury
for first-degree robbery and fourth-degree assault. The indictment alleged that Appellant
held a knife to seventy-eight-year-old Charles Jolly's throat, causing him physical injury,
and then robbed him of his wallet and automobile. Following a trial in December 2002,
Appellant was convicted of first-degree robbery1 and sentenced to seventeen and one half
years' imprisonment. On direct appeal, this Court affirmed Appellant's conviction and
sentence.
On July 14, 2004, Appellant filed a motion to vacate his sentence pursuant
to RCr 11.42. Following the appointment of counsel, Appellant filed a supplemental RCr
11.42 motion in September 2005. The trial court conducted an evidentiary hearing in
January 2006, and thereafter entered Findings of Fact, Conclusions of Law, and Order
denying Appellant relief. This appeal ensued.
The standard of review for claims raised in a motion filed pursuant to RCr
11.42 alleging ineffective assistance of counsel at trial is limited to issues that were not
and could not be raised on direct appeal. The movant in an RCr 11.42 proceeding has the
burden of establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary post-conviction relief. Haight v. Commonwealth,
41 S.W.3d 436, 441 (Ky. 2001), cert. denied, 534 U.S. 998 (2001). (Citing Dorton v.
Commonwealth, 433 S.W.2d 117 (Ky. 1968)).
A convicted defendant claiming ineffective assistance of counsel has the
burden of: 1) identifying specific errors by counsel; 2) demonstrating that the errors by
counsel were objectively unreasonable under the circumstances existing at the time of
trial; 3) rebutting the presumption that the actions of counsel were the result of trial
strategy; and 4) demonstrating that the errors of counsel prejudiced his right to a fair trial.
1
The trial court granted a directed verdict of acquittal on the assault charge on the grounds that
such charge merged into the robbery charge.
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Simmons v. Commonwealth, 191 S.W.3d 557, 561-2 (Ky. 2006), cert. denied, ___ U.S.
___, 127 S.Ct. 1132 (2007).
An evidentiary hearing is not required about issues refuted by the record of
the trial court. Stanford v. Commonwealth, 854 S.W.2d 742 (Ky. 1993), cert. denied, 510
U.S. 1049 (1994). When the trial court conducts an evidentiary hearing, the reviewing
court must defer to the determinations of fact and witness credibility made by the trial
judge. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986), cert. denied, 481 U.S.
1059 (1987); Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996).
The standards which measure ineffective assistance of counsel are
enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). In order to be considered ineffective, the performance of counsel must be below
the objective standard of reasonableness and so prejudicial as to deprive a defendant of a
fair trial and a reasonable result. Strickland, supra. “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
(6th Cir. 1992), cert. denied, 508 U.S. 975 (1993). In other words, “[t]he critical issue is
not whether counsel made errors but whether counsel was so thoroughly ineffective that
defeat was snatched from the hands of probable victory.” Haight, supra, at 441.
In reviewing a claim of ineffective assistance, the court must focus on the
totality of evidence before the judge or jury and assess the overall performance of counsel
throughout the case in order to determine whether the identified acts or omissions
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overcome the presumption that counsel rendered reasonable professional assistance. See
Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Haight,
supra. A defendant is not guaranteed errorless counsel or counsel judged ineffective by
hindsight, but counsel likely to render reasonably effective assistance. Haight, supra; see
also McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert. denied, 521 U.S. 1130
(1997). Strickland notes that a court must indulge a strong presumption that the conduct
of counsel falls within the wide range of reasonable professional assistance because “[n]o
particular set of detailed rules for counsel's conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Id. at 688-89, 104 S.Ct. at 2065.
Appellant first argues that his right to effective assistance of counsel was
violated because his trial counsel had an actual conflict of interest due to his
representation of another witness, Robert Harding. Appellant alleges that although
Harding was a key potential witness, counsel failed to conduct any investigation into his
involvement out of a duty of loyalty to Harding as another client. The trial court
concluded that no such conflict existed. We agree.
Evidence presented during the evidentiary hearing established that
Appellant's trial counsel, Barry S. Smith, had been appointed to represent Robert Harding
in the Clinton Circuit Court on an unrelated matter. A trial was held on September 12,
2002, and Harding was found guilty. Smith testified during the hearing herein that he
was employed through the Department of Public Advocacy to represent clients in Clinton
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County and to file notices of appeal on their behalf. Smith noted that his representation
of clients terminated upon the filing of the notice of appeal, as other attorneys from DPA
were assigned to handle the appeals. Smith stated that he initially filed a notice of appeal
in Harding's case on September 26, 2002. However, because the final judgment had not
been entered at that time, he refiled the notice of appeal on November 19, 2002.
In its findings of fact, the trial court determined that Smith's representation
of Harding effectively terminated after the trial was conducted on September 12, 2002,
and that the filing of the notices of appeal were merely perfunctory. Further, the court
concluded that Smith only ascertained the fact of Harding's possible involvement in
Appellant's case a few days prior to trial. Smith testified at the hearing that throughout
his trial preparation, Appellant had maintained that he was so intoxicated that he had no
recollection of the events that led to the charges against him. In fact, no mention was
made of Harding's involvement until after Appellant and Harding were housed together in
the Clinton County Jail. The trial court commented that Appellant “dramatically
remembered” that Harding was a witness in his case only after Harding was released
from custody. As such, the trial court concluded that, as a matter of law, Smith possessed
no knowledge of any purported involvement of Harding until a short period of time
before Appellant's trial and that no conflict existed that would have adversely affected
Appellant.
We agree with the trial court that based solely upon the chronology of
Smith's representation of Harding and Appellant, it is clear that no conflict existed.
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Harding was tried and convicted on September 12, 2002. Appellant was indicted on
September 16, 2002, and Smith was not appointed to represent him until October 7, 2002.
Thus, Smith did not concurrently represent Harding and Smith. “Prejudice is presumed
only if the defendant demonstrates that counsel 'actively represented conflicting interests'
and that 'an actual conflict of interest adversely affected his lawyer's performance.'”
Strickland, supra at 692, 104 S.Ct. at 2067. (Quoting Cuyler v. Sullivan, 446 U.S. 335,
100 S.Ct. 1708, 80 L.Ed.2d 333 (1980). Furthermore, as noted by the trial court, there is
absolutely no evidence in the record to support Appellant's claim that Smith was aware
of Harding's involvement and chose not to investigate out of some sense of “divided
loyalty” to his former client.
Appellant next argues that his trial counsel was ineffective by permitting
the introduction of impermissible evidence concerning his criminal record. During the
penalty phase of trial, the Commonwealth introduced a computer printout obtained from
the Internet website of the Kentucky Court of Justice known as “CourtNet.” The Clinton
Circuit Court Clerk authenticated the printout and testified to Appellant's numerous prior
misdemeanor convictions. The Commonwealth then, without objection, moved that the
printout be admitted into evidence as an exhibit. Unfortunately, the printout also listed
approximately thirty criminal charges that had either been dismissed, were still pending,
or whose final disposition was unclear.
On direct appeal, this Court addressed the issue, noting,
While it was certainly error for the jury to be presented a
printout containing charges for which there had not been a
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conviction, we cannot conclude that this error rises to the
level of palpable error, i.e., that but for the error there is a
substantial possibility that the result of the jury's
recommended sentence would have been different. We first
note that this senseless and disgusting crime was perpetrated
against a 78-year-old man, and the jury's recommended
sentence of 17 1/2 years, which was 2 1/2 years less than the
maximum, was certainly not unjust to Phillips. Second, it is
unclear from the record why defense counsel failed to object
to the admission of the evidence. As argued by the
Commonwealth, there are conceivable reasons why trial
counsel may have, as a matter of legitimate trial strategy,
purposely decided not to object to the Commonwealth's use of
the exhibit. . . .
If it is determined in a RCr 11.42 proceeding that the
introduction of the printout was not based on legitimate trial
strategy, it will be for the trial court to determine whether
Phillips received ineffective assistance of counsel. Thus,
even though we have concluded that the error did not
constitute palpable error because there is not a substantial
possibility that the outcome would have been different, this
does not foreclose a finding by the trial court at a RCr 11.42
proceeding that Phillips was prejudiced by the error under the
Strickland standards. Strickland requires a finding of a
reasonable probability that, but for counsel's unprofessional
errors, the results of the proceeding would have been
different.
During the evidentiary hearing, Smith testified that he made a strategic trial
decision to allow the introduction of Appellant's criminal history. Smith explained that
he sought to lend credence to Appellant's intoxication defense by showing that he had a
long history of alcohol-related problems. Smith stated that he hoped the jury would
believe that Appellant's prior run-ins with the law were not violent and that Appellant
was not a bad guy, but rather had a problem with alcohol. Smith did, however, candidly
admit that he overlooked the admission of the unresolved charges.
-7-
Again, we agree with the trial court that Smith's failure to object to the
admission of the CourtNet printout did not constitute ineffective representation but was
rather a matter of trial strategy. Indeed, the issue is not whether counsel made errors,
“but whether counsel was so thoroughly ineffective that defeat was snatched from the
hands of probable victory.” Haight, supra at 441. While trial counsel certainly did not
provide errorless representation, his trial strategy was reasonable in light of the
overwhelming evidence of Appellant's guilt. “Judicial scrutiny of counsel's performance
must be highly deferential. It is all too tempting for a defendant to second-guess counsel's
assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.” Strickland, supra, at 689, 104 S.Ct. at
2065.
Finally, Appellant argues that trial counsel's representation was deficient to
the extent that the prosecution's case was not subjected to meaningful adversarial testing.
See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Essentially, Appellant contends that the culmination of trial counsel's errors resulted in
ineffective representation. However, as we have determined that counsel was not
ineffective in either instance alleged herein, we do not find any cumulative
ineffectiveness. Appellant received the effective assistance of counsel that he was
constitutionally entitled to. Strickland, supra.
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The order of the Clinton Circuit Court denying Appellant's motion for
post-conviction relief pursuant to RCr 11.42 is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew Ross
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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