Brown v. Commonwealth
| Docket Number | 2022-CA-0885-MR |
| Decision Date | 26 May 2023 |
| Parties | KENNETH BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEF FOR APPELLANT: Kenneth Brown, pro se Burgin, Kentucky
BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort Kentucky
BEFORE: CETRULO, JONES, AND TAYLOR, JUDGES.
Kenneth Brown ("Brown"), pro se, appeals the Oldham Circuit Court order denying his motion to vacate his sentence pursuant to Kentucky Rule of Criminal Procedure ("RCr") 11.42 without an evidentiary hearing. After review, we AFFIRM.
In October 2016, at a pre-trial hearing (for a separate action) with Brown, the prosecutor ("Prosecutor Gray") stated she was considering bringing additional charges against him. In response, Brown stated, Brown made this statement in open court.
In January 2017, Brown was indicted on one count of intimidating a participant in the legal process and as a second-degree persistent felony offender ("PFO II"). In December 2017, after a short trial, a jury found Brown guilty of intimidating a participant in the legal process. After the jury verdict, Brown and the Commonwealth negotiated a deal regarding sentencing. By its terms, Brown pled guilty, in exchange for five years of imprisonment for intimidating a participant in the legal process, enhanced an additional two years by the PFO II charge, and he waived his right to appeal.
However, before sentencing, Brown moved to withdraw his plea pursuant to RCr 8.10.[1] Brown v. Commonwealth, No. 2018-CA-001180-MR, 2019 WL 3367195, at *1 (Ky. App. Jul. 26, 2019). Brown asserted that his counsel incorrectly explained how the plea agreement would affect his parole hearing eligibility date. Id. According to Brown, his parole eligibility date would not remain at 20 years[2] as counsel originally informed him, but rather, he would become parole eligible at 21 years and five months. Id. at *3. After a hearing, the trial court found that Brown received incorrect legal advice from his defense counsel, but concluded any error was not gross, nor were the consequences so dire to amount to ineffective assistance of counsel. Id. at *2. In July 2018, the trial court denied Brown's motion to withdraw his guilty plea and rendered final judgment in accordance with the terms of the plea agreement. Id. at *1. Brown appealed the denial of his motion to withdraw his guilty plea.
In July 2019, a panel of this Court affirmed the trial court's denial of Brown's RCr 8.10 motion:
While having to wait an additional one year and five months to receive a parole hearing may seem unfair to Brown, this Court cannot conclude that the trial court abused its discretion when denying Brown's motion to withdraw his plea agreement because it was made voluntarily. A parole hearing date, as discussed earlier, is collateral in nature and parole is not guaranteed. Facing the prospect of potentially receiving one year by proceeding to trial, as opposed to the additional two years agreed to in the voluntary guilty plea, does not rise to the standard of not "being 'rational under the circumstances" for the trial court to reject the plea bargain.
Brown, 2019 WL 3367195, at *4.
In May 2021 - and as the basis of this appeal - Brown sought postconviction relief by requesting an evidentiary hearing and filing a motion to vacate his sentence pursuant to RCr 11.42. He alleged numerous errors made by his trial counsel, but the trial court found that he was not prejudiced by any of the alleged errors and denied his RCr 11.42 motion without an evidentiary hearing. Brown appealed.
First, we address whether the trial court erred when it denied the motion without an evidentiary hearing. Then, we discuss whether the trial court properly found Brown's counsel was not ineffective.
Commonwealth v. Searight, 423 S.W.3d 226, 228 (Ky. 2014).
We review the trial court's factual findings for clear error. CR 52.01. This Court grants deference to "the trial court's factual findings and determinations of witness credibility." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citation omitted). Here, the trial court determined that Brown was not entitled to a hearing on his motion because he raised no issues of material fact that could not be determined from the face of the record. On appeal, Brown challenges that factual determination. He proposes three queries for an evidentiary hearing.
First, Brown questions why his counsel did not "take further steps to ensure that a compromised court did not preside" over his trial. More specifically, the judge who witnessed the threat was the same judge who later presided over his trial. Brown argues that if the judge had recused herself from the trial, as requested, he would have called her as a witness in his defense; and yet, Brown does not give even the tiniest hint as to why the judge would be helpful to his defense. Brown does not argue that the judge had any special knowledge beyond witnessing the threat, a threat that was recorded in open court. Here, it does not matter why his counsel did not push harder to have the judge recuse herself because there is no evidence such a recusal was necessary, germane, probative, or material. Evidence "is material if that matter of fact pertains to an issue in dispute[.]" Brafman v. Commonwealth, 612 S.W.3d 850, 868 (Ky. 2020) (emphasis added). Further, evidence is material if it goes to a fact of consequence in the case. Dooley v. Commonwealth, 626 S.W.3d 487, 493 (Ky. 2021). Brown's argument here does not present an issue of material fact, nor does he present any facts that, if true, would be sufficient to invalidate his conviction.
Second, Brown questions why the trial court allowed the Commonwealth to remove an African American woman from the jury without his counsel issuing a Batson challenge.[3] It is unclear from the record whether the Commonwealth exercised a peremptory challenge or if the juror was excluded for a particular reason. During voir dire, that juror expressed hesitation about being able to sit judgment on someone, or send them to prison, for words that were said. Brown states vaguely that discrimination must have been the cause of the excusal, but he does not establish, even minimally, that the Commonwealth used a peremptory strike because of her race. Brown states in his brief, "Taking into account that 'a state's purposeful or deliberate denial to [African Americans] on account of race participation as jurors in the administration or justice violates the Equal Protection Clause', it was the courts sworn duty to answer these questions not answered by the record in order to ensure that Brown's rights had not been violated (See Swain v. Alabama 380 U.S. 202, 203-204)." Yet again, under these circumstances, further discussion about that excusal is not material because it is not outcome determinative. Brafman, 612 S.W.3d at 868; see also Dooley, 626 S.W.3d at 493. Here, an evidentiary hearing was not necessary to determine the Commonwealth's reason for dismissing Juror #404 because the record reflects that the Commonwealth had a valid reason to excuse the juror. Even with an evidentiary hearing, Brown could not establish discrimination or misconduct on behalf of the Commonwealth or the trial court sufficient to invalidate his conviction.
Third, Brown argues that he lacked the requisite intent for the charge and wished his counsel would have done more to prove his lack of intent to intimidate. However, the lack of "intent" was argued at trial. In fact, Brown's counsel argued repeatedly that Brown did not intend to intimidate Prosecutor Gray, and that Brown only spoke from frustration and anger. Despite this, the jury found intent and found him guilty of one count of intimidating a participant in the legal process. "Questions of credibility and the weight to be given to evidence and testimony are issues reserved for determination by the jury." Brewer v. Commonwealth, 206 S.W.3d 313, 318 (Ky. 2006). The jury did not find the "lack of intent" argument to be credible. Brown's disagreement with the jury's finding does not create an issue of material fact. Thus, the trial court did not err in denying an evidentiary hearing.
This Court reviews a "trial court's denial of an RCr 11.42 motion for an abuse of discretion." Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
To determine if the trial court's denial of Brown's RCr 11.42 motion was an abuse of discretion, we must apply the framework set forth in Strickland v....
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