BROWNING (JIMMY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 25, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001949-MR
JIMMY BROWNING
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS C. COMBS, JR., JUDGE
ACTION NO. 03-CR-00064
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, KELLER, AND LAMBERT, JUDGES.
CLAYTON, JUDGE: Appellant, Jimmy Browning (Browning), appeals the ruling
of the Perry Circuit Court denying Browning’s motion for post-conviction relief
pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.
I. BACKGROUND
Browning was convicted of murder and tampering with physical
evidence, and was sentenced to fifty-five years imprisonment. He was indicted on
May 15, 2001, and his trial ultimately began on August 5, 2003, following several
procedural delays. Following Browning’s conviction, he directly appealed to the
Kentucky Supreme Court. The Court affirmed his conviction, and summarized the
factual and procedural history of the case as follows:
The Appellant, Jimmy Browning, and Ance Neace
had been friends for years. Both men dated the victim,
Tamara Beverly, at different times. Neace had been
living with Tamara and their child until social services
removed the child from their custody, placing him with
Neace's mother and father. During the custody dispute,
Neace and Tamara became hostile towards each other,
and in February of 2001, Tamara obtained a domestic
violence order against Neace.
On April 5, 2001, Neace and Tamara argued on the
phone about the custody of their son. Allegedly, Tamara
told Neace that she was going to take full custody of the
child and bring charges against the Appellant for
molesting her youngest daughter. That night, Neace
made a three-way phone call to Ms. Smith and the
Appellant. During the conversation, Neace discussed the
argument he and Tamara had earlier that day. The
Appellant and Neace also then planned to get Tamara to
go somewhere with them, do drugs, and have sex.
Because Neace did not have a car, the Appellant agreed
to pick him up and then they would go get Tamara.
On April 5, 2001, somewhere between the hours of
7:00 p.m., and 9:00 p.m., the Appellant and Neace picked
Tamara up at her home. They went to a surface mine
strip-job on top of a mountain to “snort” and “eat” some
pills and drink some whiskey. Once on top of the
mountain, the men took turns having sex with Tamara.
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The Appellant claims he had sex with Tamara first
and then got out of the truck so Neace could have his
turn. Supposedly, after Neace and Tamara had sex, they
got out of the car and went to the back of the truck. At
that time, the Appellant claims he got back in the truck
and fell asleep and remained asleep until he was
awakened by Neace. The Appellant claims that Neace
was then in a panic and told him that he had “done it”
and wanted to “get the hell out of there.” Neace told the
Appellant that he and Tamara had gotten into an
argument over their son; she claimed he was not the
father, and he got so angry he “put her in the pond.”
Then they drove back to the Appellant's house. His
mother, Joan Morton, and his wife, Christy, were there.
Neace told them the story and threatened to say they
were accomplices if they told anyone.
Sometime around 1:00 a.m., Neace allegedly
called Ms. Smith and told her he “did it” and that the
Appellant had helped. During this phone call, Neace told
her about the murder and then the Appellant told her not
to say anything about it or she would “be laying up there
right where [Tamara] is.”
The next couple of days following Tamara's
disappearance, the police visited Neace and the Appellant
several times. Both denied having seen Tamara. Then,
Appellant's mother finally convinced him to tell the
police what he knew about the murder. He contacted
Detective John Sizemore and gave a complete statement.
He then led police to the site. The police recovered the
body and placed the Appellant under arrest for Tamara's
murder.
....
Both the Appellant and Neace were indicted on
May 15, 2001, in the Perry Circuit Court on one count of
murder, one count of tampering with physical evidence,
and one count of rape in the first degree.
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Thereafter, the Appellant and the Commonwealth
entered into a plea agreement for a recommendation of a
twenty year sentence in exchange for a plea of guilty to
murder and his truthful testimony in the case against
Neace. The rape charge was thereafter dismissed on
motion of the Commonwealth in June of 2002.
Subsequently, on August 23, 2002, a new
Commonwealth's Attorney was appointed to proceed
with the case. On December 18, 2002, after several
delays, Judge Combs accepted the Appellant's plea and
set the matter for final sentencing on January 22, 2003.
However, at the hearing for final sentencing on
January 22, 2003, Judge Combs announced his rejection
of the recommended sentence and suggested a harsher
punishment. The Appellant argued, without avail, that
Judge Combs was bound by the plea and that the
Appellant detrimentally relied upon the Court's words
and actions in allowing his trial to be continued. The
trial court then allowed the Appellant to withdraw his
guilty plea and the matter was set for trial.
Consequently, on March 7, 2003, the new
Commonwealth's Attorney sought and obtained a
superseding indictment from the Perry County Grand
Jury, charging the Appellant with one count of
complicity to murder, and one count of complicity to
tampering with physical evidence.
After several continuances, the trial started on August 5,
2003[.]
Browning v. Com., 2006 WL 435423 (Ky. 2006)(No. 2003-SC-1026-MR).
Following his unsuccessful direct appeal, Browning filed a RCr 11.42
motion to vacate his sentence. Browning contended that his trial counsel was
ineffective in four ways: first, by failing to ensure him a fast and speedy trial;
second, by failing to object to certain pictures which Browning believes did not
accurately depict the crime scene; third, by not requesting a directed verdict
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dismissal of the tampering with physical evidence charge; and fourth, by failing to
procure concurrent sentences on the two charges. The Perry Circuit Court denied
the motion without holding an evidentiary hearing. We affirm.
II. STANDARD OF REVIEW
Because the circuit court denied Browning's RCr 11.42 motion
without an evidentiary hearing, our review is “whether the motion on its face states
grounds that are not conclusively refuted by the record and which, if true, would
invalidate the conviction.” Lewis v. Com., 411 S.W.2d 321, 322 (Ky. 1967).
III. ANALYSIS
In order to prevail on an ineffective assistance of counsel claim, a
movant must affirmatively prove that his “counsel's performance was deficient”
and that the deficiency prejudiced the case. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). A reviewing Court
should be highly deferential in scrutinizing counsel’s performance and must
evaluate the particular facts of the case and determine whether the acts or
omissions were “outside the wide range of professionally competent assistance” to
the extent that the errors caused the “adversarial testing process” not to work. Id.
at 690, 104 S. Ct. at 2066. To prove prejudice, a movant “must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different[,]” meaning in this case that Browning
would not have been found guilty. Id. at 694, 104 S. Ct. at 2068. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
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There is no automatic entitlement to an evidentiary hearing with
regard to an RCr 11.42 motion. Rather, a hearing is required only if there is an
“issue of fact that cannot be determined on the face of the record[.]” RCr 11.42(5);
Stanford v. Com., 854 S.W.2d 742, 743 (Ky. 1993), cert. denied, 510 U.S. 1049,
114 S.Ct. 703, 126 L.Ed.2d 669 (1994). Thus, if the official record conclusively
contradicts the movant’s claim, no hearing must be held. Trice v. Com., 632
S.W.2d 458 (Ky. App. 1982). When the movant claims ineffective assistance of
counsel for failure to present a specific argument, no evidentiary hearing is
required if the record totally establishes that the argument would have been
meritless. Freeman v. Com., 697 S.W.2d 133 (Ky. 1985). With this standard in
mind, we will address the four bases for ineffective assistance of counsel in order.
First, we find that the record conclusively refutes Browning’s claim that his
counsel was constitutionally deficient for failing to ensure his right to a fast and
speedy trial. The record reveals that Browning’s counsel did in fact file a motion
for a speedy trial on December 11, 2001, and also filed two separate motions to
dismiss based upon the right to a speedy trial. The first of these motions was filed
on August 27, 2002. The second was filed on June 2, 2003. Thus, there is no
factual basis for his claim of ineffective assistance on this issue, and the record
conclusively establishes that the endeavors of the trial counsel in this regard were
well within the wide range of professionally competent assistance. Browning’s
counsel may not be deemed ineffective merely because the judge denied the
motions to dismiss.
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Second, we find no basis for Browning’s claim that his counsel should
have objected at trial to one of the evidence photos, which depicts a steep
embankment leading up to the pond where Tamara Beverly’s body was found.
The record conclusively establishes that the decision not to object to the evidence
was neither constitutionally deficient nor prejudicial. With regard to deficiency of
counsel, there is no indication that the photo is an inaccurate depiction of the crime
scene nor that it misled the jury. In fact, it is entirely consistent with all the other,
seemingly non-objectionable photos. It seems incredibly unlikely that any attempt
to exclude the photo would have succeeded. As is noted in Freeman, 697 S.W.2d
133, an attorney’s decision not to present a specific argument cannot be ineffective
assistance if that argument would have been meritless. With regard to prejudice,
the record establishes the photo was not prejudicial because the exclusion of the
photo would not have prevented Browning’s conviction. Although the photo was
used at trial to indicate that Browning must have helped Ance Neace (Neace)
dispose of the body in the pond, there is other, independently sufficient evidence to
establish the same fact, specifically the testimony of Neace. We believe there was
ample evidence in this case, outside the photo, to convict Browning, and its
inclusion does not undermine reasonable confidence in the outcome of the case.
Third, Browning’s counsel was not ineffective in failing to request a
directed verdict on the tampering with physical evidence charge. There is no
factual basis for this claim, much like Browning’s first claim, because Browning’s
counsel did in fact request a directed verdict. Browning’s counsel made a motion
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for a directed verdict at the close of the evidence, which was denied by the trial
judge. The Supreme Court of Kentucky later determined on appeal that there had
been sufficient evidence for the tampering charge. Browning, 2006 WL 435423.
Thus, the record conclusively refutes this claim both factually and legally.
Fourth, we do not find Browning’s counsel to have been ineffective
for failing to procure concurrent sentences for his client. While Browning’s
attorney was perhaps obligated to ensure that the sentence complied with all
statutory requirements, we find no deficiency in the sentence upon which he could
have based an objection. The sentencing entirely complies with the requirements
of Kentucky Revised Statutes (KRS) 532.110, and was fully within the wide
discretion of the trial judge. See Jones v. Com., 833 S.W.2d 839, 842 (Ky. 1992).
Browning’s counsel ultimately had little control over the sentence imposed on his
client at the discretion of the court, and it’s unlikely that any evidence introduced
at a hearing could alter this determination.
IV. Conclusion
All the grounds raised by Browning to establish ineffective assistance
of counsel are conclusively refuted by the record, and he was not entitled to an
evidentiary hearing on his motion. For the reasons stated herein, the judgment of
the Perry Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jimmy Browning, pro se
Sandy Hook, Kentucky
Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
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