BARKER (ADAM ANTHONY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 8, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001079-MR
ADAM ANTHONY BARKER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 04-CR-003560
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
DIXON, JUDGE: Appellant, Adam Anthony Barker, appeals from an order of the
Jefferson Circuit Court denying his motion for post-conviction relief pursuant to
RCr 11.42. Finding no error, we affirm.
1
Senior Judge Sheila Isaac sitting as Special Judge by assignment of the Chief Justice pursuant
to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.
In December 2004 and January 2005, Appellant was charged in three
separate indictments2 with one count of murder, two counts of first-degree assault,
five counts of second-degree assault, and tampering with physical evidence
stemming from an altercation that began inside a bar in downtown Louisville on
October 23, 2004, and escalated outside once the parties were ejected from the
premises. During the incident, Appellant sprayed Chemical Mace in several
individuals’ faces and stabbed three individuals. As a result, one person was killed
and several others were injured. In addition, Indictment No. 04-CR-003560 also
charged Appellant with one count of first-degree assault and four counts of seconddegree assault relating to separate incidents that occurred in December 2003 and
July 2004. Initially, the three indictments were consolidated for trial; however,
counts four through nine of Indictment No. 04-CR-003560 (dealing with the
December 2003 and July 2004 events) were eventually severed.
Following a jury trial in March 2006, Appellant was convicted of one
count of wanton murder, two counts of first-degree assault, five counts of seconddegree assault, and tampering with physical evidence relating to the events of
December 2004. Following the jury’s guilty verdict, Appellant waived the penalty
phase of trial and entered into a plea agreement with the Commonwealth that
provided:
(1) A 40-year sentence for the murder conviction; a 20-year
sentence for each of the two first-degree assault convictions; a
10-year sentence for each of the five second-degree assault
convictions; and a 5-year sentence for the tampering with
2
04-CR-003560, 05-CR-000239, and 05-CR-001958.
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physical evidence conviction, all to run concurrently for a total
of 40 years’ imprisonment.
(2) A waiver of all appeal issues regarding the jury trial.
(3) Entry of an Alford plea to the two counts of first-degree assault
stemming from the December 2003 incident, with a 20-year
sentence for each to run concurrently for a total of twenty
years’ imprisonment.
(4) Entry of an Alford plea to four counts of first-degree assault
stemming from the July 2004 incident, with a 10-year sentence
for each to run concurrently for a total of ten years’
imprisonment.
(5) All of the sentence would run concurrently for a total of 40
years’ imprisonment.
After conducting a plea colloquy in open court, the trial court sentenced Appellant
accordingly.
In April 2009, Appellant filed a pro se RCr 11.42 motion raising various
claims of ineffective assistance of counsel. Appellant also filed motions for the
appointment of counsel and an evidentiary hearing. By order entered May 14,
2009, the trial court denied all motions. This appeal ensued.
In an RCr 11.42 proceeding, the movant has the burden to establish
convincingly that he was deprived of substantial rights that would justify the
extraordinary relief afforded by the post-conviction proceeding. Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). An evidentiary hearing is
warranted only “if there is an issue of fact which cannot be determined on the face
of the record.” Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993),
cert. denied, 510 U.S. 1049 (1994); RCr 11.42(5). See also Fraser v.
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Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981
S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026 (1999). “Conclusionary
allegations which are not supported by specific facts do not justify an evidentiary
hearing because RCr 11.42 does not require a hearing to serve the function of a
discovery deposition.” Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky.
2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard
v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), sets forth the standards which measure ineffective assistance of
counsel claims. In order to be ineffective, performance of counsel must fall below
the objective standard of reasonableness and be so prejudicial as to deprive a
defendant of a fair trial and a reasonable result. Id. “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, 229 (6th Cir. 1992), cert. denied, 508 U.S. 975 (1993). Thus, the
critical issue is not whether counsel made errors, but whether counsel was so
“manifestly ineffective that defeat was snatched from the hands of probable
victory.” Id.
In considering ineffective assistance, the reviewing court must focus on the
totality of evidence before the trial court or jury and assess the overall performance
of counsel throughout the case in order to determine whether the alleged acts or
omissions overcome the presumption that counsel rendered reasonable professional
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assistance. Strickland; see also Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct.
2574, 91 L.Ed.2d 302 (1986). A defendant is not guaranteed errorless counsel, or
counsel judged ineffective by hindsight, but counsel likely to render reasonably
effective assistance. McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert.
denied, 521 U.S. 1130 (1997). The Supreme Court in Strickland noted that a court
must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct.
at 2065.
Since Appellant effectively entered a guilty plea, any claim that he was
afforded ineffective assistance of counsel requires him to show: (1) that counsel
made errors so serious that counsel's performance fell outside the wide range of
professionally competent assistance; and (2) that the deficient performance so
seriously affected the outcome of the plea process that, but for the errors of
counsel, there is a reasonable probability that the defendant would not have pled
guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58
S.W.3d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474 U.S. 52, 106 S.Ct.
366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Thus, Appellant bears the burden of showing that
but for counsel’s alleged deficiency, he would have neither waived the penalty
phase of his trial nor entered Alford pleas on the remaining charges.
A criminal defendant may demonstrate that his guilty plea was involuntary
by showing that it was the result of ineffective assistance of counsel. In such a
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case, the trial court is to “consider the totality of the circumstances surrounding the
guilty plea and juxtapose the presumption of voluntariness inherent in a proper
plea colloquy with a Strickland v. Washington inquiry into the performance of
counsel.” Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004)
(quoting Bronk, 58 S.W.3d at 486 (footnotes omitted)). However, advising a
defendant to accept a plea is not, by itself, sufficient to demonstrate any degree of
ineffective assistance of counsel. Beecham v. Commonwealth, 657 S.W.2d 234,
236-7 (Ky. 1983).
Appellant first argues that trial counsel was ineffective during the
guilt phase of trial for failing to pursue a defense of extreme emotional disturbance
(EED) rather than relying solely on the defenses of self-defense and the protection
of others. Essentially, Appellant contends that even though he maintained he was
acting in protection of himself and his friends during the altercation in December
2004, once counsel realized that the Commonwealth’s evidence refuted his claim,
counsel should have pursued an EED defense. We disagree.
“Extreme emotional disturbance” has been defined as:
A temporary state of mind so enraged, inflamed, or disturbed as
to overcome one’s judgment, and to cause one to act
uncontrollably from the impelling force of the extreme
emotional disturbance rather than from evil or malicious
purposes. It is not a mental disease in and of itself, and an
enraged, inflamed, or disturbed emotional state does not
constitute an extreme emotional disturbance unless there is a
reasonable explanation or excuse there for, the reasonableness
of which is to be determined from the viewpoint of a person in
the defendant’s situation under circumstances as the defendant
believed them to be.
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McClellan v. Commonwealth, 715 S.W.2d 464, 469 (Ky. 1986), cert. denied, 479
U.S. 1057 (1987). Further, our Supreme Court has emphasized that EED “is
established only by a showing of some dramatic event which creates a temporary
emotional disturbance” and “[t]here must be a ‘triggering event,’ which triggers an
explosion of violence on the part of the defendant at the time he committed the
offense.” Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky. 1997), cert. denied,
523 U.S. 1083 (1998).
While Appellant argues in his brief that he panicked and was in a “state of
fear” because he was afraid his friends were going to get hurt, his trial testimony
belies such a claim. In fact, Appellant stated that after being ejected from the bar,
he had returned to the car to wait for his friends. Upon hearing the melee, he took
an indirect route so that he could “get a visual of everything that was happening,”
and determine how to best proceed. Appellant then began using the mace to keep
the other individuals off of his friends. Appellant specifically explained, “I
remember thinking, I can’t let these guys get a hold of me ‘cause we were so
outnumbered.” With respect to the knife, Appellant testified that after running out
of mace, he pulled out his knife and gave several individuals a “stick” with the
“intention to steer clear of their organs and try to go towards the shoulder blade.”
Again, all of Appellant’s actions were calm and controlled, a reflection of the
military training he emphasized during his testimony. In light of these factual
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circumstances, we agree with the trial court that defense counsel did not err in not
raising the issue of EED.
Notwithstanding the lack of evidence demonstrating EED, we note that KRS
507.020(1)(a) establishes EED as a mitigating element to a murder which was
specifically intended. “Extreme emotional disturbance under our code affects one's
formation of the specific intent to murder, but as KRS 507.020 is drafted, it has no
carry-over application to one's wanton behavior.” Todd v. Commonwealth, 716
S.W.2d 242, 246 (Ky. 1986) (emphasis in original). Thus, the failure to pursue an
EED defense is ultimately irrelevant because the jury found Appellant had acted
wantonly.
Appellant next argues that trial counsel was ineffective by advising him to
accept the plea offer instead of proceeding with the penalty phase of trial.
According to Appellant, trial counsel erroneously advised him that in order to
avoid a sentence in excess of two hundred years or consecutive sentences life and
eighty years, he needed to accept the Commonwealth’s plea agreement. In support
of his claim, Appellant argues that the maximum sentence he could have received
was a life sentence for which he would have been eligible for parole in twenty
years. Appellant contends that had he received proper advice, he would have not
accepted the plea deal, thus preserving his right to appeal his convictions and
proceed to trial on the other remaining charges.
Appellant fails to recognize that in addition to the charges for which the jury
found him guilty of, had he not accepted the plea agreement he would have faced
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at least one more trial on the offenses he committed in December 2003 and July
2004. Certainly, the sentences for those two trials could have run consecutively to
the sentence the jury would have recommended had he proceeded with the penalty
phase of the trial herein. In fact, so long as separate trials are involved, even a
term of years sentence may run consecutively to a previous life sentence. See
Stewart v. Commonwealth, 153 S.W.3d 789, 792 (Ky. 2005).3 Thus, had Appellant
forgone the plea agreement and received a life sentence, something which we
believe is speculative at best, he still could have received consecutive term
sentences at the subsequent trials. We simply cannot conclude that trial counsel’s
advice to accept the plea agreement and resolve all pending charges was in any
manner deficient.
As we previously noted, the movant in an RCr 11.42 proceeding has the
burden to establish convincingly that he was deprived of some substantial right that
would justify the extraordinary relief afforded by the post-conviction proceeding.
Dorton, 433 S.W.2d at 118. Furthermore, with respect to a claim of ineffective
assistance of counsel, a court’s review of counsel’s performance must be highly
deferential, and the defendant must overcome the presumption that counsel
provided a reasonable trial strategy. Brown v. Commonwealth, 253 S.W.3d 490
(Ky. 2008). We agree with the trial court that Appellant failed to overcome such
presumption. As such, post-conviction relief was not warranted.
3
Recently, the Kentucky Supreme Court has reaffirmed the interpretation of Stewart in an
unpublished opinion in Clay v. Commonwealth, 2009-SC-12-MR (June 17, 2010).
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The order of the Jefferson Circuit Court denying Appellant’s RCr 11.42
motion is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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