Prescott v. Commonwealth
Decision Date | 05 April 2019 |
Docket Number | NO. 2018-CA-000233-MR,2018-CA-000233-MR |
Citation | 572 S.W.3d 913 |
Parties | Kit PRESCOTT, Appellant v. COMMONWEALTH of Kentucky, Appellee |
Court | Kentucky Court of Appeals |
BRIEFS FOR APPELLANT: Kit Prescott, pro se, Louisville, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
Kit Prescott, pro se , appeals the Hardin Circuit Court’s order entered May 2, 2016, denying his motions to recuse, to vacate his sentence pursuant to RCr1 11.42, and to hold an evidentiary hearing on the same. After careful review of the record, briefs, and applicable law, we affirm.
On November 17, 2011, Prescott was found guilty following a six-day trial by jury of one count first-degree possession of a controlled substance,2 three counts first-degree trafficking in a controlled substance,3 and being a persistent felony offender in the first degree ("PFO I").4 The jury recommended Prescott be sentenced to three years' imprisonment for the possession charge and ten years' imprisonment for each trafficking charge, said sentences to run concurrently. Sentencing was deferred until after a hearing on January 17, 2012. Subsequently, the trial court imposed the jury’s recommended sentence against Prescott. On February 6, 2012, an amended order of judgment and order imposing sentence was entered by the trial court. Prescott appealed. On February 28, 2014, in an unpublished opinion, another panel of our court affirmed the trial court’s order in part, vacating only the portion of the order imposing court costs on Prescott without ascertaining whether he is a poor person or his ability to pay.
On October 8, 2015, Prescott moved the court to recuse, to vacate its order pursuant to RCr 11.42 based on collateral claims of ineffective assistance of trial and appellate counsel, and for an evidentiary hearing. On April 28, 2016, the trial court entered its order denying these motions. This appeal followed.
This appeal is, at least in part, an attempt to recycle arguments that have previously failed. As such, we quote the basic facts and summary of issues previously reviewed by the prior panel of our court in Prescott v. Commonwealth , No. 2012-CA-000190-MR, 2014 WL 813109, at *1 (Ky. App. Feb. 28, 2014).
(Footnotes omitted.)
As an initial matter, in contravention of CR5 76.12(4)(c)(v), Prescott does not state how he preserved any of his arguments in the trial court.
Oakley v. Oakley , 391 S.W.3d 377, 380 (Ky. App. 2012). The instant appeal is taken from the trial court’s order denying RCr 11.42 relief on Prescott’s motion alleging ineffective assistance of trial and appellate counsel. Review of Prescott’s motion and the trial court’s order reveals that such issues were presented to the trial court for consideration. Because these issues were so presented, and denied, they are appropriate for appellate review.
Additionally, CR 76.12(4)(c)(iv), relating to the requirement of a concise statement of the facts and procedural history of an appeal, requires "ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings ... supporting each of the statements narrated in the summary." Similarly, CR 76.12(4)(c)(v), relating to arguments raised on appeal, requires "ample supportive references to the record and citations of authority pertinent to each issue of law[.]" It is not the job of this or any appellate court to scour a record to determine whether these citations support a party’s assertions. Walker v. Commonwealth , 503 S.W.3d 165, 171 (Ky. App. 2016). Appellants must exercise care, diligence, and trustworthiness to ensure the accuracy of pinpoint citations provided to the appellate court in support of any arguments pursuant to CR 76.12, pertaining to both location and substance.
Prescott’s pro se brief contains numerous pinpoint citations to the record allegedly supporting arguments advanced before this Court. Review of the cited portions, however, suggests Prescott misapprehends or mischaracterizes substantial portions of the record. As one example, Prescott states the "Judge even suggested the Attorney’s [sic] investigate the witness," citing to a portion of the video transcript of his pretrial proceedings. Our review of this, and all other cited portions, reveals that many do not depict the purported subject matter, others are taken out of context and do not support Prescott’s argument, and others do not exist (e.g. citation to V.R., 1/16/11 at 2:37:06pm (supposedly regarding suppression) ). Prescott’s repeated inattentive and inaccurate citation to portions of the record in support of his arguments is troubling.
We further note that Prescott’s pro se brief does not comply with CR 76.12(4)(c)(vii) which requires the appellant to "place the judgment, opinion, or order under review immediately after the appendix list so that it is most readily available to the court." Although the order being appealed was included with the plethora of other attachments, it did not appear until approximately page 178 of 215. This rule also provides that the index "shall set forth where the documents may be found in the record." The purpose of this rule is to ensure that only items in the record are appended to the brief and considered by our court during review. Prescott failed to do this. This rule further requires the appendix contain extruding tabs to indicate to the court the beginning of each attachment. Prescott failed to do this as well.
As an additional note, we find it appropriate to mention—considering Prescott’s lengthy pro se and in forma pauperis filings before the trial court and now on collateral appeal in our court—that quantity is a poor proxy for quality in court pleadings. It is not well taken that Prescott’s numerous and...
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