TROY MARTIN V. COMMONWEALTH OF KENTUCKY
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RENDERED : MAY 18, 2006
AS MODIFIED : MAY 23, 2006
TO BE PUBLISHED
4*uyrrutt
(901af of
2004-SC-000130-DG
TROY MARTIN
V.
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-002529-MR
FAYETTE CIRCUIT COURT NO. 98-CR-0125
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING AND REMANDING
This RCr 11 .42 appeal asks whether a holding by this Court on direct
appeal that a claimed error is not palpable error (RCr 10.26) necessarily precludes any
possibility that a subsequent ineffective assistance of counsel claim may be
successfully maintained based on the same claim of error. For the reasons hereinafter
set forth, we hold that such a prior determination does not preclude relief for ineffective
assistance of counsel, as the dispositive inquiries differ.
Appellant, Troy Martin, was convicted upon a
jury verdict of first-degree
burglary . Thereafter, he pled guilty to being a persistent felony offender (PFO) in the
first degree . Appellant received a ten-year sentence on the burglary conviction which
was enhanced to twenty years by the PFO conviction . On his direct appeal to this
Court, Appellant contended, inter alia, that improper comments were made by the
prosecutor in closing argument which substantially prejudiced him and violated his due
process rights and his right to a fair trial by an impartial jury. This Court criticized the
prosecutor's comments and concluded that they were likely improper . However,
Appellant's counsel had failed to object to any of the argument complained of and our
review was for palpable error. We held that the improper argument did not rise to the
level of palpable error, and the judgment was affirmed .
Appellant sought relief pursuant to RCr 11 .42, alleging that his trial
counsel's failure to preserve, by contemporaneous objection, the issue of improper
prosecutorial argument amounted to ineffective assistance of counsel . The trial court
denied Appellant's motion and the Court of Appeals affirmed . The Court of Appeals
noted that RCr 11 .42 is a procedural vehicle to present claims of error that could not
have been raised on direct appeal. Thus, it reasoned that because Appellant had
raised the improper argument error, albeit as palpable error, on direct appeal, he was
not entitled to raise it again in a collateral attack proceeding under RCr 11 .42 . To the
contrary, however, this Court has acknowledged the availability of an ineffective
assistance claim based on a claimed error that failed the palpable error test.'
In Humphrev v. Commonwealth , ineffective assistance of counsel was
raised on direct appeal to this Court . Some alleged errors, but not all, had been
considered on motion for a new trial . Because the ineffective assistance claims had
been heard and ruled on by the trial court on motion for a new trial, we proceeded to
review those claims in Humphrey's direct appeal, but we stated :
[A] better approach would have been to have presented the
unpreserved errors, if such could have been done in good
faith, as palpable error under RCr 10.26. If that approach
had been taken unsuccessfully, an ineffective assistance of
' Humphrev v. Commonwealth , 962 S .W.2d 870 (Ky. 1998) .
2
counsel claim based on those unpreserved errors would still
be available in a collateral attack proceeding .2
From the above-quoted language it is clear that an unsuccessful attempt to prevail
upon a palpable error claim and an adverse ruling from the Court on direct appeal does
not preclude the same claim of error from being considered again as ineffective
assistance of counsel .
This Court reviews unpreserved claims of error on direct appeal only for
palpable error. To prevail, one must show that the error resulted in "manifest injustice ."
RCr 10 .26 provides :
A palpable error which affects the substantial rights of
a party may be considered . . . by an appellate court on
appeal, even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the
error. (Emphasis added) .
This Court has stated :
Under this rule, an error is reversible only if a manifest
injustice has resulted from the error. That means that if,
upon consideration of the whole case, a substantial
possibility does not exist that the result would have been
different, the error will be deemed nonprejudicial .3
While this statement is not inaccurate, it fails to adequately describe the necessary
degree of prejudice associated with the unpreserved question in the context of the
whole case . The language "[a] substantial possibility does not exist that the result
would have been different" is at best confusing, and it falls short of the required
standard . A better understanding is gained from an examination of RCr 10 .26 with
emphasis on the concept of "manifest injustice ." While the language used is clear
2 _Id . at 873.
3 Graves v . Commonwealth , 17 S .W .3d 858, 864 (Ky. 2000) (quoting Jackson v.
Commonwealth, 717 S .W .2d 511, 513 (Ky. App . 1986)) .
3
enough, we further explain that the required showing is probability of a different result or
error so fundamental as to threaten a defendant's entitlement to due process of law.
In United States v. Cotton4 the Supreme Court analyzed the plain error
test of Federal Rule of Criminal Procedure 52(b), the federal counterpart of RCr 10 .26.
At issue was an indictment that failed to meet the requirements of Apprendi v. New
Jersey, 5 but where the respondents had failed to raise the Apprendi claim before the
trial court. Despite failure of preservation, the United States Court of Appeals for the
Fourth Circuit vacated the sentences on grounds that failure of the indictment to set
forth all necessary elements of the offense violated both mandatory and jurisdictional
requirements . Rejecting the holding with respect to jurisdiction, the Supreme Court
proceeded to the plain error test of Federal Rule of Criminal Procedure 52(b) . The
Court reviewed the plain error components from its precedents, but focused primarily on
an element from Johnson v. United States6 as follows : "an appellate court may then
exercise its discretion to notice a forfeited error but only if . . . the error seriously affects
the fairness, integrity or public reputation of judicial proceedings . ,7 Reversing .the
Fourth Circuit, the Supreme Court remanded for reinstatement of the sentences on
grounds that the unpreserved Apgrendi error did not meet the requirements for plain
error.
While the language of RCr 10.26 and Federal Rule of Criminal Procedure
52(b) differ substantially, and recognizing that this Court is not obligated to follow
Cotton, we nevertheless believe it to be a valuable guide in the application of our
4 535 U.S. 625, 122 S.Ct. 1781, 152 L. Ed .2d 860 (2002) .
5 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed .2d 435 (2000) .
6 520 U .S . 461, 177 S .Ct. 1544, 137 L.Ed .2d 718 (1997) .
Cotton, at 631 ; see also Ernst v. Comm ., 1,60 S .W .3d 744, 758 (Ky. 2005)(properly
applying this standard to an evidentiary error under KRE 103(e) .
4
palpable error rule . To discover manifest injustice, a reviewing court must plumb the
depths of the proceeding, as was done in Cotton, to determine whether the defect in the
proceeding was shocking or jurisprudentially intolerable .
With the foregoing discussion of palpable error in mind, as it is deeply
involved here, we return to the instant case. The Court of Appeals' affirmance of the
trial court's denial of RCr 11 .42 relief was on the view that a finding of no palpable error
precludes such relief. As such, we must examine the RCr 11 .42 standard to determine
whether it differs from palpable error.
A review of the issues in an ineffective assistance claim is conducted
under the test delineated by the Supreme Court in Strickland v. Washington . The
Strickland test requires a showing that without the error:
The factfinder would have had a reasonable doubt
respecting guilt. . . . In making this determination, a court
hearing an ineffectiveness claim must consider the totality of
the evidence before the judge or jury. . . . Taking the
unaffected findings as a given, and taking due accord of the
effect of the errors on the remaining findings, a court making
a prejudice inquiry must ask if the defendant has met the
burden of showing that the decision reached would
reasonably likely have been different absent the errors.9
On the other hand, the Court noted :
The result of a proceeding can be rendered unreliable, and
hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the
evidence to have determined the outcome .
8 466 U .S. 668, 104 S.Ct . 2052, 80 L.Ed.2d 674 (1984) (This Court has expressly
embraced the Strickland test in numerous decisions including Gall v. Commonwealth ,
702 S.W.2d 37 (Ky. 1985) ; Thompson v. Commonwealth , 177 S.W.3d 782 (Ky. 2005);
Norton v. Commonwealth, 63 S.W .3d 175 (Ky. 2001); and Commonwealth v. Pelfrev ,
998 S.W.2d 460 (Ky. 1999)).
9 Strickland , at 695-96 .
1o
Id . at 694.
Thus, Strickland articulated a requirement of reasonable likelihood of a different result
but stopped short of outcome determination .
As the discussion hereinabove reveals, there are distinctions between
palpable error under RCr 10.26 and the "prejudice" requirement of Strickland . This
prevents a palpable error analysis from being dispositive of an ineffective assistance
claim .
When an appellate court engages in a palpable error review, its focus is
on what happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process . However, on
collateral attack, when claims of ineffective assistance of counsel are before the court,
the inquiry is broader . In that circumstance, the inquiry is not only upon what
happened, but why it happened, and whether it was a result of trial strategy, the
negligence or indifference of counsel, or any other factor that would shed light upon the
severity of the defect and why there was no objection at trial. Thus, a palpable error
claim imposes a more stringent standard and a narrower focus than does an ineffective
assistance claim . Therefore, as a matter of law, a failure to prevail on a palpable error
claim does not obviate a proper ineffective assistance claim.
A final point should be addressed . In the future, reviewing courts should
endeavor to avoid mixing the concepts of palpable error" and harmless error. 12 One is
not the opposite of the other. A claim of palpable error presupposes a lack of
preservation and such claims are held to the standard described herein . Harmless
11
RCr 10.26.
12 RCr 9.24 .
error, on the other hand, presupposes preservation and an erroneous trial court ruling,
but nevertheless permits a reviewing court to disregard it as non-prejudicial .
For the reasons herein, we reverse and remand to the Court of Appeals
for further consistent proceedings .
Lambert, C.J., and Cooper, Johnstone, and Scott, JJ ., concur .
Wintersheimer, J ., files a separate concurring opinion in which Graves and Roach, JJ.,
join .
COUNSEL FOR APPELLANT :
Richard Edwin Neal
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : MAY 18, 2006
TO BE PUBLISHED
,Suyrrmr (gourf , of 'PtrufurkV
2004-SC-000130-DG
TROY MARTIN
V.
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-002529-MR
FAYETTE CIRCUIT COURT NO. 98-CR-0125
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE WINTERSHEIMER
The majority opinion reaches the correct result but needlessly creates new
criteria for review of alleged palpable error. In Martin's original case before this Court,
we affirmed when our palpable error analysis started with the improper argument at trial
that was not a preserved error. Martin now seeks relief pursuant to RCr 11 .42 alleging
that trial counsel's failure to preserve that error was ineffective assistance of counsel .
There is nothing to prevent a collateral attack when alleging error of counsel in
such a situation . The Court of Appeals was not correct when it affirmed the trial court's
denial of RCr 11 .42 relief. Martin should be able to proceed with an RCr 11 .42 action.
It is only then that a decision regarding whether any ineffective assistance of counsel
reaches the level of reversible error may be determined . See Humphrey v.
Commonwealth 962 S .W .2d 870 (Ky. 1998) .
Palpable error review is governed by RCr 10.26 and requires a showing of
manifest injustice . We have most recently confirmed the understanding of that term to
mean "a substantial possibility does not exist that the result would have been different' .
Graves v. Commonwealth, 17 S .W.3d 858 (Ky. 2000) . That concept remains clear,
concise, and correct. The majority opinion however, after acknowledging that "the
language used is clear enough" then provides an additional definition or step in the
process . Besides the probability of a different result, the majority opinion states that in
addition, the error could merely be "so fundamental as to threaten a defendant's
entitlement to due process of law".
This added requirement to manifest injustice analysis is not provided for in our
rules and is not needed. If an error at trial threatens a defendant's entitlement to due
process of law, there are appropriate avenues of relief. Ky . Const . ยง14. One would
hope that the method would be an objection followed by a ruling from the trial court. A
direct appeal from the trial court ruling is then available . Should an objection not be
provided, palpable error review and then collateral review through RCr 11 .42 would
provide ample opportunity to fulfill any due process requirements .
It is easy to create a myriad of hypothetical examples where an error may enter a
trial and be so fundamental that it affects entitlement to due process of law. Yet those
situations would not necessarily create manifest injustice . The errors would not
necessarily change the result. If any error is significant enough to cross the threshold
of due process requirements it should be reviewed in that manner. It is only after that
analysis that a manifest injustice review would be appropriate .
The majority opinion acknowledges the substantial differences between our RCr
10.26 and the Federal Rules of Criminal Procedure 52(b). It also clearly notes that the
analysis of the federal rules in U .S. v. Cotton , 535 U.S . 625 (2002) is outside any
application to our RCr 10.26 yet proceeds to then adopt the Cotton determination of
"whether the defect in the proceeding was shocking or jurisprudentially intolerable" .
This melding of the federal definition along with the due process requirements added to
the original Graves, supra, requirement of a changed result has now created a palpable
error analysis that is riddled with conflict. The new steps are not needed and will only
open the floodgates of further litigation because we will then be called upon to clarify
what was once already clear.
I concur in result only
Graves and Roach, JJ. join .
TO BE PUBLISHED
uprrutt wourf of "FtttfurkV
2004-SC-000130-DG
TROY MARTIN
V.
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-002529-MR
FAYETTE CIRCUIT COURT NO . 98-CR-0125
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
The Opinion of the Court entered May 18, 2006, is hereby corrected on its
face by substitution of the attached pages 1 and 8 in lieu of the original pages 1 and 8
of the opinion. The purpose of this Order of Correction is to correct the names of
counsel and does not affect the holding of the Opinion .
ENTERED: May 23, 2006 .
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