Commonwealth v. Pollini, 2012–SC–000312–DG.

• Decision Date: 21 August 2014
• Docket Number: No. 2012–SC–000312–DG.,2012–SC–000312–DG.
• Citation: 437 S.W.3d 144
• Parties: COMMONWEALTH of Kentucky, Appellant v. Jasper POLLINI, Appellee.
• Court: United States State Supreme Court — District of Kentucky

437 S.W.3d 144

COMMONWEALTH of Kentucky, Appellant

v.Jasper POLLINI, Appellee.

No. 2012–SC–000312–DG.

Supreme Court of Kentucky.

April 17, 2014.

Rehearing Denied Aug. 21, 2014.

Jack Conway, Jeffrey Allan Cross, Counsel for Appellant.

Timothy G. Arnold, Angela Elaine Slaton, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

A Jefferson Circuit jury found Appellee, Jasper Pollini, guilty of complicity to murder, complicity to first-degree burglary, complicity to second-degree burglary, and complicity to receiving stolen property over $300. After Appellee's sentence of life imprisonment was affirmed by this Court, he filed an RCr 11.42 motion in the trial court alleging, among other things, that appellate counsel had rendered ineffective assistance by failing to brief the issue of the trial judge's ex parte written communication with the jury after it had retired for deliberations. The circuit court denied Appellee's motion, and the Court of Appeals affirmed the order denying relief, holding that Appellee's claim of ineffective assistance of appellate counsel (IAAC) was not cognizable.

This Court subsequently vacated the Court of Appeals' decision and remanded the case for reconsideration in light of our holding in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky.2010). In Hollon, we recognized that IAAC claims premised upon appellate counsel's alleged failure to raise a particular issue on direct appeal were cognizable in Kentucky. Id. at 436. On remand, the Court of Appeals ruled that Appellee's direct appeal counsel had rendered deficient performance by failing to brief the ex parte communication issue and granted Appellee a new trial.

We granted discretionary review, and the Commonwealth now argues that we should reverse the Court of Appeals because (1) Appellee waived his IAAC claim on appeal, (2) the Court of Appeals erred by concluding that Appellee's RCr 9.74 issue could have succeeded on direct appeal, and (3) the Court of Appeals failed to consider the experience of Appellee's direct appeal counsel. For the following reasons, we reverse the Court of Appeals and reinstate the trial court's order denying Appellee's RCr 11.42 motion.

I. BACKGROUND

The factual background underlying Appellee's convictions has been thoroughly recounted in Pollini v. Commonwealth, 172 S.W.3d 418 (Ky.2005), and reiterated in Pollini v. Commonwealth, No. 2006–SC–000835–MR, 2008 WL 203035 (Ky. Jan. 24, 2008). These cases explain that, in the early morning hours of May 7, 2002, Appellee burglarized two residential garages. The burglaries were the beginning of a chain of events that ended with Appellee shooting and killing Byron Pruitt.

Appellee was subsequently indicted for murder and the garage burglaries, and his sister, Crystal Plank, was indicted for lesser offenses related to the incident. Appellee and Plank were tried together. After the jury had retired for deliberation, it requested a copy of Plank's witness statement to the police. The trial judge, without notifying the parties, advised the jury that no transcript was available.¹

Appellee was ultimately convicted of murder, first-degree burglary, second-degree burglary, and receiving stolen property as noted.

II. ANALYSIS

A. Appellee Did Not Waive His IAAC Claim on Appeal of His RCr 11.42 Motion

As stated above, our principal reason for granting discretionary review in this case was to consider whether the Court of Appeals properly applied Hollon in its review of Appellee's IAAC claim. However, we will first address the Commonwealth's argument that Appellee waived his IAAC claim on appeal of his RCr 11.42 motion. The Commonwealth contends that Appellee did not brief an IAAC claim to the Court of Appeals and that it was improper for the Court to consider the claim sua sponte.

The Commonwealth admits that Appellee made a claim of IAAC in his RCr 11.42 motion to the circuit court; however, it asserts that Appellee abandoned the IAAC claim on his appeal of the trial court's denial of his motion. The Commonwealth supports its argument by contrasting Appellee's brief to the Court of Appeals with his earlier RCr 11.42 motion to the trial court. The Commonwealth points out that Appellee's argument pertaining to the ex parte communication issue is almost word-for-word the same in the RCr 11.42 motion as it is in the appellate brief. However, the appellate brief's issue heading uses the term “trial counsel” rather than just “counsel,” as was used in the RCr 11.42 motion. The Commonwealth points to several other similar changes in Appellee's briefs to support its proposition that appellate counsel consciously abandoned the IAAC claim on appeal of the RCr 11.42 motion.

Nonetheless, even assuming the Commonwealth is correct that Appellee failed to adequately assert his IAAC claim in his appeal of the RCr 11.42 motion, the Commonwealth has not cited any legal authority in support of its claimed relief. The cases cited by the Commonwealth demonstrate that, generally, appellate courts will decline to reach issues an appellant raised in a lower court but failed to brief on appeal. See Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky.2004) (holding that failure to address discovery request in appellate brief constituted a waiver of the issue); Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky.1987) (“Normally, assignments of error not. argued in an appellant's brief are waived.”). These cases prove only that appellate courts are permitted to ignore claims that have not been adequately raised for review. However, these cases do not go so far as to require appellate courts to ignore claims that have not been thoroughly briefed on appeal.

In fact, this Court has explicitly stated that an appellate court may decide an issue not briefed on appeal when that issue “flows naturally under our appellate review of the issue raised.” Barker v. Commonwealth, 341 S.W.3d 112, 114 (Ky.2011); see also Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky.1991) (“When the facts reveal a fundamental basis for decision not presented by the parties, it is our duty to address the issue to avoid a misleading application of the law.”). Given that this case was remanded to the Court of Appeals to be reconsidered in light of our holding in Hollon that IAAC is a cognizable claim in Kentucky, the issue of whether Appellee's appellate counsel was ineffective could certainly be deemed to “flow naturally” from the Court of Appeals' review of the issues on appeal. See Barker, 341 S.W.3d at 114. Accordingly, we find no error in the Court of Appeals' consideration of Appellee's IAAC claim. Thus, the Commonwealth's first argument does not justify reversal of the Court of Appeals.

B. The Court of Appeals Erred by Ruling in Favor of Appellee's IAAC Claim

The Commonwealth next argues that the Court of Appeals erroneously determined that Appellee suffered ineffective assistance of appellate counsel. More specifically, the Commonwealth argues: (1) that Appellee failed to prove that the ex parte communication issue was “clearly stronger” than the other issues briefed by his appellate counsel and (2) that Appellee also failed to show he was prejudiced by appellate counsel's failure to brief the issue.

Under the standard articulated by this Court in Hollon, to succeed on an IAAC claim premised upon appellate counsel's alleged failure to raise a particular issue on direct appeal, the defendant must establish that “counsel's performance was deficient, overcoming a strong presumption that appellate counsel's choice of issues to present to the appellate court was a reasonable exercise of appellate strategy.” 334 S.W.3d at 436. The omitted issue must be “clearly stronger” than those presented for the presumption of effective assistance to be overcome. Id. Additionally, the defendant must also establish that “he or she was prejudiced by the deficient performance, which ... requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded.” Id. at 437. Put more concisely, our evaluation of an IAAC claim will require a showing of deficient performance plus prejudice. See id. at 436–37. We review the components of an IAAC claim de novo. See Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky.2008) ( “On appeal, the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance.”).

Here, Appellee properly argues both deficient performance and prejudice. However, the deficient performance component of an ineffectiveness claim need not be addressed first. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”). As explained above, the deficient performance prong of the Hollon IAAC standard requires Appellee to prove that the issue appellate counsel failed to brief was “clearly stronger” than the issues that it did brief on appeal. Hollon, 334 S.W.3d at 436. In light of the difficulty of assessing the relative strengths of each of the numerous claims Appellee argued on direct appeal, we begin our analysis of Appellee's IAAC claim by considering whether Appellee was actually prejudiced by direct appeal counsel's failure to brief the issue of the trial judge's ex parte communication with the jury.

As previously explained, the jury requested a copy of Plank's witness statement to the police, and the trial judge responded in writing, without notifying either party of the request, that none was available. Now, Appellee argues that the trial judge's ex parte communication with the jury was a violation of RCr 9.74, and that direct appeal counsel's failure to brief the issue prejudiced him.

We agree with Appellee that the trial judge violated RCr 9.74, which states, “No information requested by the jury or any juror after...