FAIRROW (JAMES) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 11, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000990-MR
JAMES FAIRROW, JR.
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 03-CR-00290
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; CAPERTON AND CLAYTON, JUDGES.
CLAYTON, JUDGE: James Fairrow, Jr. (Fairrow), incarcerated under a thirtynine-year sentence, appeals from an order of the Hopkins Circuit Court denying his
Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for post-conviction
relief. Upon review of the record, we vacate and remand, and order the circuit
court to properly address whether trial counsel’s failure to object to the entry of
improper character evidence amounts to ineffective assistance of counsel.
Procedural History
On August 26, 2003, the Hopkins County grand jury indicted Fairrow
on two counts of trafficking in the first degree in a controlled substance
(methamphetamine), second offense, under Kentucky Revised Statutes (KRS)
218A.1412, and one count of being a first-degree persistent felony offender (PFO)
under KRS 532.080. The indictment was later amended to charge Fairrow with
trafficking in cocaine instead of methamphetamine. In March 2004, Fairrow was
convicted of both trafficking counts and the PFO count. He received a twenty-year
sentence for the trafficking convictions, which was then enhanced under the PFO
conviction to a thirty-five-year sentence. This sentence was ordered to run
consecutively to another four-year sentence that Fairrow was already serving.
After sentencing, Fairrow filed a timely notice of appeal from the final
judgment of the Hopkins Circuit Court. This appeal was then heard directly by the
Kentucky Supreme Court, which affirmed Fairrow’s convictions and sentence.
Fairrow v. Com., 175 S.W.3d 601 (Ky. 2005). On appeal, one of the issues
presented by Fairrow was whether the introduction of testimony from a police
detective regarding the reliability and character of a confidential informant
constituted error. The Supreme Court held that although the admission of the
detective’s testimony constituted error, it did “not require reversal for a new trial
because the error was not properly preserved for appellate review” under Kentucky
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Rules of Evidence (KRE) 103(a)(1). Id. at 607. The Court further noted, citing to
KRE 103(e): “Nor are we satisfied that the admission of improper evidence of the
character of a mere witness affected [Fairrow’s] substantial rights and constituted
manifest injustice so as to require reversal as palpable error.” Id.
After the Kentucky Supreme Court rendered its opinion, Fairrow filed
a motion to vacate judgment pursuant to RCr 11.42 in the Hopkins Circuit Court.
Fairrow argued three different grounds in his motion, two of which are applicable
to the current appeal. He specifically argued that the circuit court erred by
allowing improper character evidence concerning the confidential informant’s
reliability to come into evidence and that Keith W. Virgin (Virgin), Fairrow’s trial
counsel, failed to properly preserve the improper character evidence issue for
appeal.
On March 18, 2008, the circuit court held an evidentiary hearing on
Fairrow’s RCr 11.42 motion. During the evidentiary hearing, Virgin testified that
he had informed Fairrow of a ten-year plea deal prior to the trial and encouraged
Fairrow to accept it. He stated that Fairrow declined to accept the offer and chose
to proceed to trial. Fairrow subsequently testified and contended that he had never
been told of this ten-year plea deal. He then sought to amend his RCr 11.42
motion to include failure of counsel to inform him of this offer. The circuit court
allowed the motion to be amended as requested.
After the evidentiary hearing, Fairrow filed an affidavit with the
circuit court on March 28, 2008, stating:
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(3) Prior to trial, I was informed of two plea offers made
by the Commonwealth Attorney, a 25 year offer and an
18 year offer.
....
(5) I was never informed about a 10 year plea offer by
my trial attorney, the Commonwealth attorney, or the
Circuit Court judge.
(6) I do not recall an in-chambers discussion regarding
any of the plea offers.
(7) I signed a form for the Department of Public
Advocacy on Feb. 4, 2004 acknowledging that I had been
informed of the 18- and 25-year offers, and had rejected
them.
(8) If I had been informed of the 10 year offer, I would
have accepted it and plead guilty.
On appeal, Fairrow maintains that he was never informed of the ten-year plea deal
and emphasizes that there is no documented record to the contrary, which is
significant because every other plea offer was thoroughly documented. We note
that the record contains written, documented proof of the twenty-five-year,
eighteen-year, and fifteen-year plea offers. The record contains no written,
documented proof, however, of the ten-year plea offer.
In responding to this argument, the Commonwealth filed an affidavit
from Virgin and argued that “Virgin conveyed a ten (10) year PFO 1st offer to the
defendant on the morning of trial and the defendant rejected that plea offer.” The
Commonwealth further noted that “in the normal course of business under the
Honorable Charles W. Boteler, Jr.’s administration as Hopkins Circuit Court
Judge, it was routine practice for the Commonwealth and the attorney for the
defendant along with the defendant to discuss any final plea negotiations in the
Judge’s Chambers prior to beginning Voir Dire on the morning of trial.” The
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assistant commonwealth’s attorney who filed this response further noted that she
was the attorney who “actually tried the case involving the defendant and distinctly
remembers making the ten (10) year, PFO 1st offer in the Judge’s Chambers the
morning of trial and does remember, the defendant rejected said offer and we
proceeded to trial.” The attached affidavit of Virgin stated that “on the date of trial
February 9, 2004, Commonwealth made an offer of 10 years Pfo (sic)1st before the
jury was enpaneled. Affiant states that he conveyed this offer to client orally. . . .
Client orally rejected the plea offer.”
The circuit court denied Fairrow’s RCr 11.42 motion as to all issues in
an order entered on May 5, 2008. As to the improper character evidence issue in
particular, the court stated: “While Defendant claims that even though this error is
not palpable it could have still resulted in a different verdict, the Supreme Court
found, and this Court agrees, that there was ample evidence to convict the
defendant aside from the testimony of this witness and therefore it is harmless
error.” The court further noted, quoting Hodge v. Com., 116 S.W.3d 463, 467 (Ky.
2003), that “an issue raised on appeal may not be considered in post conviction
proceedings ‘. . . by simply claiming that it amounts to ineffective assistance of
counsel.’” The circuit court also rejected Fairrow’s argument that he received
ineffective assistance of counsel because his attorney failed to convey to him a tenyear plea offer, citing to Virgin’s testimony at trial and the various affidavits and
pleadings submitted by the Commonwealth. This appeal followed. We now
vacate and remand this case for an evidentiary hearing so that the circuit court can
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properly address whether trial counsel’s failure to object to the entry of improper
character evidence amounts to ineffective assistance of counsel.
Arguments
Fairrow raises three arguments on appeal. First, he contends that the
Hopkins Circuit Court’s finding that he was informed of the ten-year plea offer
was clearly erroneous. Second, he contends that the Hopkins Circuit Court erred
when it denied his claim regarding the ten-year plea offer without conducting
another evidentiary hearing. Finally, he contends that the Hopkins Circuit Court
erred in holding that he was not denied effective assistance of counsel when
counsel failed to object to improper character evidence. Each argument was
properly reserved for appellate review. We will address each argument separately.
1. Ten-year Plea Deal
The standard of review for findings of fact by a court is that
“[f]indings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the
witnesses.” Kentucky Rules of Civil Procedure (CR) 52.01. Fairrow contends that
the circuit court’s finding that he was informed of the ten-year plea offer was
clearly erroneous. We disagree. Based on the testimony given by Virgin at the
evidentiary hearing and his subsequent affidavit, there was ample evidence for the
circuit court to find that Fairrow had been informed of the ten-year plea deal. The
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circuit court’s findings that Fairrow had been informed of the ten-year plea deal are
not clearly erroneous.
2. Evidentiary Hearing
A defendant is entitled to a RCr 11.42 hearing if there is “a material
issue of fact that cannot be determined on the face of the record[.]” RCr 11.42(5);
Hodge, 116 S.W.3d at 469-70. As to ambiguities in material factual matters, the
Kentucky Supreme Court has emphasized “that trial courts generally should hold
such hearings to determine material issues of fact presented.” Stanford v. Com.,
854 S.W.2d 742, 744 (Ky. 1993). “A hearing is required if there is a material issue
of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved,
by an examination of the record.” Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001).
Fairrow contends that the circuit court should not have viewed his
written motion as a substitute for an evidentiary hearing. However, what he fails
to acknowledge is that the circuit court was presented with testimony during the
evidentiary hearing on the issue of whether he was informed of the ten-year plea
offer and concurrently allowed him to supplement the record with additional
documentation regarding the ten-year plea deal. The circuit court did not view
Fairrow’s motion as a substitute for an evidentiary hearing. Based on the record,
there is no need for a second evidentiary hearing on the same issue.
3. Ineffective Assistance of Counsel
Fairrow finally argues that the Hopkins Circuit Court erred in holding
that he was not denied effective assistance of counsel and his right to
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fundamentally fair legal proceedings when counsel failed to object to improper
character evidence. Claims of ineffective assistance of counsel are mixed
questions of law and fact to be reviewed de novo. Wilson v. Parker, 515 F.3d 682,
707 (6th Cir. 2008).
The circuit court misinterpreted the Kentucky Supreme Court’s
holding in Fairrow, 175 S.W.3d at 607. The Kentucky Supreme Court stated that
“[n]or are we satisfied that the admission of improper evidence of the character of
a mere witness affected [Fairrow’s] substantial rights and constituted manifest
injustice so as to require reversal as palpable error[]” under KRE 103(e). The
Supreme Court did not find whether the improper admission of character evidence
amounted to harmless error, as the circuit court concluded. The Supreme Court
instead held that it was not palpable error, which is a higher standard.
In addition, the circuit court is mistaken as to the proper standard to
apply in this instance. Though Hodge, 116 S.W.3d at 468, stated that an issue
raised on direct appeal may not be considered in post conviction proceedings by
simply claiming that it amounts to ineffective assistance of counsel, Hodge is not
the appropriate standard in this case. The Kentucky Supreme Court later
maintained in Martin v. Com., 207 S.W.3d 1 (Ky. 2006), that an issue can be raised
on appeal in a post-conviction proceeding when the standard of review is different.
Martin specifically stated that “a prior determination [that a claimed error is not
palpable error] does not preclude relief for ineffective assistance of counsel, as the
dispositive inquires differ.” Id. at 2; see also Leonard v. Com., 279 S.W.3d 151,
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158-59 (Ky. 2009). Based on the standard set out in Martin and reaffirmed in
Leonard, the circuit court failed to apply the proper law as to whether Fairrow was
denied effective assistance of counsel.
For the foregoing reasons, the judgment of the Hopkins Circuit Court
is reversed and this matter is remanded for the circuit court to hold an evidentiary
hearing as to whether Fairrow’s counsel’s failure to properly object to improper
character evidence amounted to ineffective assistance of counsel.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Meggan Smith
Assistant Public Advocate
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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