BREWER (LEE ROY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
LEE ROY BREWER
APPEAL FROM OWEN CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
INDICTMENT NO. 04-CR-00016
COMMONWEALTH OF KENTUCKY
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BEFORE: ACREE AND CAPERTON, JUDGES; ROSENBLUM,1 SENIOR
ROSENBLUM, SENIOR JUDGE: Lee Roy Brewer appeals the May 25, 2007,
Order of the Owen Circuit Court denying his RCr2 11.42 motion to vacate, set
aside or correct his judgment of sentence from his criminal conviction. We affirm.
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
Kentucky Rules of Criminal Procedure.
The Kentucky Supreme Court, in considering appellant’s case on
direct appeal, summarized the underlying facts as follows:
[o]n April 24, 2004, acting on information received
during an unrelated situation, the police visited the home
of Scott and Beverly Sizemore. The police immediately
recognized the strong odor of marijuana emanating from
within the Sizemores' home. Despite this, Scott
Sizemore invited the police inside where, after obtaining
his consent to search, they discovered several bags of
marijuana. Sizemore also told the police that Appellant,
Appellant's wife (Rosalee), Jacqueline Sims, and Dale
Masden were involved in a scheme to smuggle marijuana
from Mexico. Sizemore also informed the police that
Masden might have recently returned home from Mexico
with a large shipment of marijuana.
When police later arrived at Masden's home, Sims, who
was dating Masden, allowed them inside and gave them
permission to search the residence. That search yielded
several bags of marijuana and numerous marijuana
plants. Sims cooperated with the police and told them
that she and Masden kept quantities of marijuana for
Appellant, who distributed and sold it.
Sims also agreed to wear a wire during a visit to
Appellant's home. On April 25, 2004, Sims went to
Appellant's home and disclosed that Beverly and Scott
Sizemore had been arrested. Appellant and Rosalee
suggested that Sims should get rid of the marijuana she
had in her home. Sims did not disclose that police had
already confiscated the marijuana in her home but did tell
them the police had confiscated the plants and her own
personal supply of marijuana. Appellant then gave Sims
an ammunition box in which to bury the marijuana.
The police then arrested Appellant and his wife, Rosalee.
After obtaining a search warrant for the Brewers'
property and conducting an initial search, police found no
marijuana or any evidence of alleged drug trafficking;
although the police did seize Appellant's firearms.
However, a subsequent search of Appellant's property
(and the area adjacent thereto) yielded $8,100 in cash, as
well as some marijuana.
Scott Sizemore; Sims; Masden; and another suspect,
Deborah Gibbs, all entered into plea agreements whereby
they agreed to testify against Appellant and Rosalee. That
testimony revealed an elaborate marijuana trafficking
operation in which Masden drove to Texas to meet Gibbs
and another person identified as “Terry,” whereupon they
would drive to Mexico to pick up the load of marijuana.
The marijuana would then be placed in the gas tank of an
Oldsmobile that had been modified so that the tank
would hold at least four gallons of gas but keep the
marijuana protected. Once the tank was filled with fifty
to sixty pounds of marijuana, Gibbs would then drive
through a Mexican checkpoint, with the assistance of a
member of the Mexican Army. Eventually, Gibbs or
Masden would then drive to Monterey, Kentucky, where
the marijuana would be removed, weighed, and stored in
a freezer in Masden's trailer.
According to testimony, the financiers of the operation
were Appellant and Rosalee. Masden, who did not
directly sell the marijuana, would receive a flat $5,000
fee from Appellant for bringing the marijuana from
Mexico to Owen County, Kentucky. Although Appellant
and Rosalee did not directly sell the marijuana either,
they apparently acted as wholesalers who “fronted” the
marijuana to street-level dealers on credit. According to
Sizemore, he and Beverly made about $200-$400 per
pound of marijuana they sold for Appellant, with most of
those sales occurring at their residence.
Appellant eventually was convicted of one count of
engaging in organized crime, four counts of trafficking in
marijuana (five or more pounds), and four counts of
trafficking in marijuana (over eight ounces) and was
sentenced to serve sixty years in prison. He now appeals
his conviction and sentence, as well as the trial court's
order of forfeiture.
Brewer v. Commonwealth, 206 S.W.3d 343, 345-6 (Ky. 2006) (footnotes omitted).
Brewer’s convictions were affirmed by the Kentucky Supreme Court,
but reversed on the issue of property forfeiture. Id. On April 25, 2007, Brewer
filed an RCr 11.42 motion to vacate, set aside or correct judgment and sentence, to
which the Commonwealth filed a response. On May 25, 2007, the trial court
entered an order denying Brewer’s motion. This appeal followed.
A motion brought under RCr 11.42 “is limited to issues that were not
and could not be raised on direct appeal.” Simmons v. Commonwealth, 191 S.W.3d
557, 561 (Ky.2006). “An issue raised and rejected on direct appeal may not be
relitigated in this type of proceeding by simply claiming that it amounts to
ineffective assistance of counsel.” Id. “The movant has the burden of establishing
convincingly that he or she was deprived of some substantial right which would
justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A
reviewing court must always defer to the determination of facts and witness
credibility made by the circuit judge.” Id. (internal citations omitted).
On appeal, Brewer raises multiple arguments and alleges multiple
errors of the trial court. They are: failure to appoint counsel and hold an
evidentiary hearing on issues that could not be resolved from the record alone,
failure to address the merits of the issues raised and presented and failure to issue
findings of fact and conclusions of law in regard to the issues raised and presented,
failure to appoint appellate counsel, ineffective assistance of trial counsel, witness
bribery by the Commonwealth, lack of evidence to support his convictions,
suffering multiple charges for the same offense, failure to allow mitigating
evidence in support of a reduced prison term, failure to allow evidence of actual
innocence, and cumulative error.
Brewer’s argument that the trial court erred in failing to appoint
counsel is without merit. The trial court is not under an obligation to appoint
counsel to a party making an RCr 11.42 motion unless an evidentiary hearing is
required. Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky. 2001). This canon
of not requiring the appointment of counsel results from the large volume of
frivolous or meritless RCr 11.42 motions that are filed. Id. Brewer further argues
that the trial court further erred by failing to hold an evidentiary hearing. We do
An evidentiary hearing is not necessary to consider issues
already refuted by the record in the trial court.
Conclusionary allegations which are not supported with
specific facts do not justify an evidentiary hearing
because RCr 11.42 does not require a hearing to serve the
function of discovery.
Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003) (citation omitted).
Brewer has failed to show that the allegations in his RCr 11.42 motion were not
refuted by the trial court record. Accordingly, the trial court’s failure to hold an
evidentiary hearing and thus appoint counsel was not error.
Brewer additionally argues that he was denied due process and equal
protection when the Department of Public Advocacy was allowed to withdraw as
appellate counsel. While this appeal was pending, the Kentucky Department of
Public Advocacy filed a motion to withdraw with this Court and that motion was
granted pursuant to KRS3 31.110. Because the granting of that motion was an
action of this Court, it would be appropriately appealed to the Kentucky Supreme
Court pursuant to CR4 76.36(7). Accordingly, we will not address it within this
Brewer next argues that the trial court erred by failing to address the
merits of the issues raised and presented and by failing to issue findings of fact and
conclusions of law in regard to the issues raised and presented. The requirement
for findings by the trial court in an RCr 11.42 proceeding can be found in RCr
11.42(6), which reads:
At the conclusion of the hearing or hearings, the court
shall make findings determinative of the material issues
of fact and enter a final order accordingly. If it appears
that the movant is entitled to relief, the court shall vacate
the judgment and discharge, resentence, or grant him or
her a new trial, or correct the sentence as may be
appropriate. A final order shall not be reversed or
remanded because of the failure of the court to make a
finding of fact on an issue essential to the order unless
such failure is brought to the attention of the court by a
written request for a finding on that issue or by a motion
pursuant to Civil Rule 52.02.
As we have already indicated, no evidentiary hearing was held on Brewer’s RCr
11.42 motion. Therefore, since there was no hearing, findings of fact were not
required. See, e.g., Stanford v. Commonwealth, 854 S.W.2d 742, 744 (Ky.1993),
cert. denied 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994). Accordingly,
Kentucky Revised Statutes.
Kentucky Rules of Civil Procedure.
we hold that the court did not err in failing to issue findings of fact and conclusions
of law in relation to Brewer’s RCr 11.42 motion.
Brewer’s next argument addresses ineffective assistance of counsel.
Kentucky has adopted the two-prong test of establishing ineffectiveness of counsel
as outlined in Strickland v. Washington, 466 U.S. 668 (1984). Gall v.
Commonwealth, 702 S.W.2d 37 (Ky. 1985).
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland, 466 U.S. at 687. The burden is on the defendant to establish ineffective
assistance. Strickland, 466 U.S. at 690. In measuring prejudice, the relevant
inquiry is whether “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would be different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “It is not enough for the defendant to show that
error by counsel had some conceivable effect on the outcome of the proceeding.”
Sanders v. Commonwealth, 89 sw3d 380, 386 (Ky. 2002).
Brewer argues to this Court that his trial counsel was deficient by
failing to bring attention to the conflicting testimony of two police officer
witnesses, by failing to mention “plea agreements” with Sims, Sizemore, Masden
and Gibbs, by failing to mention the activities of one of the other suspects, by
“allowing” Brewer to be charged with certain offenses and by failure to call
additional defense witnesses.
The presentation of ineffective assistance, which must
not be based on a claim already presented on direct
appeal, fixes the burden on [appellant] to plead sufficient
facts to establish that the conduct of defense counsel was
objectively unreasonable and that a reasonable
performance by counsel would have created a reasonable
probability of a favorable result. Mere speculation as to
how other counsel might have performed either better or
differently without any indication of what favorable facts
would have resulted is not sufficient. Conjecture that a
different strategy might have proved beneficial is also
not sufficient. The mere fact that other witnesses might
have been available or that other testimony might have
been elicited from those who testified is not a sufficient
ground to prove ineffectiveness of counsel.
Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003) (emphasis added)
(internal citations and quotations omitted). Brewer has failed to show the court
how any of these alleged deficiencies prejudiced the defense or that as a result he
was deprived a fair trial. More importantly, with respect to each of his claims of
ineffective assistance of counsel, Brewer has failed to satisfy the second prong of
Strickland, by showing that, but for his counsel’s alleged errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. Accordingly,
we must conclude that the trial court correctly concluded that Brewer had not
established a showing of ineffective assistance of counsel.
Brewer’s next argument is that the plea agreements entered into
between the other suspects and the Commonwealth in exchange for their testimony
against Brewer serve as witness bribery. KRS 524.020, the governing statute on
witness bribery, states that such an act requires the bestowment of a pecuniary
benefit upon the party being bribed. Brewer argues that the witnesses were given
“payments” in the form of never being arrested and never having to forfeit
property. We do not believe these alleged “payments” to be within the common
definition of “pecuniary” as intended by KRS 524.020. Accordingly, Brewer’s
argument pertaining to witness bribery is without merit.
The next argument presented by Brewer is that there was insufficient
evidence to support his convictions. In its order confirming Brewer’s conviction,
the Kentucky Supreme Court held that the evidence adduced by the
Commonwealth was overwhelming. This is an issue raised and rejected on direct
appeal and thus will not be re-litigated in this proceeding by claiming that it
amounts to ineffective assistance of counsel. See Simmons, supra, 191 S.W.3d at
In conjunction with his claim of ineffective assistance of counsel,
Brewer also argues that the trial court erred in its failure to allow mitigating
evidence in support of a reduced prison term. Specifically, Brewer argues that the
following evidence should have been presented: the forfeiture of Brewer’s
property, the plea agreements between the Commonwealth and its witnesses and
the income and job status of the witnesses (Gibbs, Sims, Masden and Sizemore).
Because the forfeiture issue was reversed and remanded by the Supreme Court,
that issue is rendered moot. With respect to the arguments made in reference to the
plea agreements and the economic status of witnesses, we do not see this as true
mitigating evidence to be considered during the sentencing phase of Brewer’s trial.
Rather, this information would have been relevant, if at all, during the
guilt/innocence phase of Brewer’s trial. Brewer has failed to show this Court any
evidence which should have been allowed as mitigating evidence during his
sentencing phase. This Court cannot speculate as to what additional mitigating
evidence Brewer would have been entitled and accordingly, that argument fails.
Brewer’s final arguments are that he was improperly charged multiple
times for the same offense, that the trial court erred by failing to allow evidence of
his innocence, and cumulative error. This Court will not address issues that were
or should have been raised on direct appeal and therefore we will not review his
arguments pertaining to improper multiple charges and innocence evidence. See
Simmons, supra, 191 S.W.3d 557. See also RCr 11.42. Brewer has also offered no
evidence of cumulative error and therefore that argument fails.
For the foregoing reasons, the May 25, 2007, Order of the Owen
Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lee Roy Brewer, Pro Se
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General