BRANDENBURG (JAMES) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 26, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE ROBERT MCGINNIS, JUDGE
ACTION NO. 04-CR-00083
COMMONWEALTH OF KENTUCKY
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BEFORE: ACREE, CLAYTON, AND KELLER, JUDGES.
ACREE, JUDGE: James Brandenburg appeals, pro se, from an order of the
Harrison Circuit Court denying his motion for post-conviction relief pursuant to
Kentucky Rule of Criminal Procedure (RCr) 11.42. After a careful review, we
affirm the trial court.
Brandenburg was indicted on the charge of first-degree robbery.
Following a jury trial, he was sentenced to ten years imprisonment. He then filed a
direct appeal with this court, which affirmed his conviction. The Kentucky
Supreme Court denied Brandenburg’s motion for discretionary review. On August
14, 2007, Brandenburg filed a motion in the trial court to vacate and set aside
judgment pursuant to RCr 11.42. The Harrison Circuit Court entered an Order on
August 30, 2007, denying this motion and noting that “the record in this case
refutes the defendant’s allegations.” Brandenburg appealed that order as well.
This time he requested that the Department of Public Advocacy (DPA) be allowed
to enter as counsel. The DPA was appointed to represent Brandenburg but later
withdrew upon review and determination that Brandenburg’s appeal “is not a
proceeding that a reasonable person with adequate means would be willing to bring
at his own expense.” KRS 31.110(2)(c).
Subsequently, Brandenburg filed a pro se RCr 11.42 motion again
alleging that the assistance of his counsel was ineffective. Specifically,
Brandenburg argues that he received ineffective assistance when his counsel failed
to more vigorously challenge the credibility of a key prosecution witness through
questions regarding her substance abuse. The trial court denied the motion without
an evidentiary hearing. This appeal followed.
In order to prevail on a claim of ineffective assistance, Brandenburg
must show that counsel made errors outside the professional norms for legal
representation and, further, that he was prejudiced by those errors. Strickland v.
Washington, 466 U.S. 668, 687, 104 S .Ct. 2052, 80 L.Ed.2d 674 (1984). Thus,
Brandenburg is required “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.”
Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003). But because there are
numerous ways to provide effective assistance in any given case, judicial review of
the actions taken (or not taken) by defense counsel is very deferential to that
defense counsel. “There is always a strong presumption that the conduct of
counsel falls within the wide range of reasonable professional assistance[.]” Id. at
On appeal, Brandenburg argues that he received ineffective assistance
because his defense counsel did not seek to impeach co-defendant and prosecution
witness Deborah Agee regarding her substance abuse. Brandenburg alleges that
Agee, an admitted drug user, was under the influence of mind-altering drugs
during her testimony. Brandenburg asserts that trial counsel should have requested
a blood or urine test to determine if this was in fact the case, or, alternatively,
questioned her concerning her habitual drug use so as to discredit her testimony.
Though trial counsel did not cross-examine Agee concerning her drug
use, counsel instead sought to damage Agee’s credibility as a witness by
questioning her motive to testify against Brandenburg. Specifically, trial counsel
got Agee to admit her hope that by cooperating with police and testifying against
appellant, she would avoid serving significant jail time for her participation in the
robbery. Thus, as defense counsel pursued one viable method of challenging
Agee’s credibility, it cannot be said that counsel’s performance was “objectively
unreasonable.” Id. at 470. This Court will not second-guess counsel’s trial
strategy merely because Brandenburg was ultimately convicted. Strickland at 689.
Brandenburg’s appeal must additionally fail because the outcome of
the trial would not have been different had counsel objected to Agee’s statements
in court. In his appellate brief, Brandenburg states that Agee’s statements to police
and her testimony in court “is the only evidence that the Commonwealth had”
against him. A review of the record and trial testimony demonstrates that this
clearly is not the case.
When the Kentucky Court of Appeals heard Brandenburg’s claims on
direct appeal, the Court found evidence of Brandenburg’s involvement in the
robbery to be “overwhelming.” Such evidence included Brandenburg’s confession
to police, his mother’s identification of him in the car driving past her home, and
Brandenburg’s arrival at his mother’s home, coupled with his statement, “do (the
police) have a warrant for my arrest?” The prosecution also called as witnesses the
police officers on the scene, bank employees, and workers at the packaging plant
where the stolen money was recovered. After hearing such evidence, a reasonable
juror could have been convinced of Brandenburg’s guilt even absent Agee’s
testimony. Therefore, it cannot be said that had defense counsel questioned Agee
about her drug use, this “would have created a reasonable probability of a
favorable result.” Hodge at 116 S.W.3d at 470.
Finally, Brandenburg argues that the Harrison Circuit Court’s failure
to cite legal authority when denying appellant’s RCr 11.42 motion constitutes an
abuse of discretion. We have reviewed this claim and find it without merit. For
the foregoing reasons, the judgment of the Harrison Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
James Brandenburg, Pro se
West Liberty, Kentucky
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General