Price v. Commonwealth

• Decision Date: 14 May 2021
• Docket Number: NO. 2020-CA-0166-MR,2020-CA-0166-MR
• Parties: RANDALL PRICE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

RANDALL PRICEAPPELLANT v. COMMONWEALTH OF KENTUCKYAPPELLEE

NO. 2020-CA-0166-MR

Commonwealth of Kentucky Court of Appeals

MAY 14, 2021

NOT TO BE PUBLISHED

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE PATRICIA M. SUMME, JUDGE

ACTIONNO. 14-CR-00997

OPINION

AFFIRMING

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BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

CALDWELL, JUDGE:

AppellantRandall Price("Price") appeals from the Kenton Circuit Court's denial of his motion pursuant to RCr¹ 11.42 seeking a new trial, alleging ineffective assistance of his counsel at trial.Finding no error in the court's order, we affirm.

FACTS AND RELEVANT PROCEDURE

In 2016, the Kentucky Supreme Court issued an opinion in Price's direct appeal of his conviction, for which he was sentenced to a total term of imprisonment of thirty (30) years.The Supreme Court summarized the evidence presented at Price's trial as follows:

Appellant entered a small bar in Latonia shortly before closing time and sat next to Nick Robbins, although the two were not acquainted.The bartender, Jennifer Carnes, brought Robbins another drink and placed his change, $7.00, on the bar beneath an ashtray.Appellant tried to take the money, but Carnes caught him and gave the money to Robbins.Appellant and Robbins were the last patrons to leave the bar.

Joyce Smeal, who was waiting in the parking lot to give Carnes a ride home, saw Appellant and Robbins leave the bar and light cigarettes.As the two walked together in her direction, Smeal saw Appellant suddenly, and apparently without warning, throw Robbins violently onto the ground and begin viciously punching and kicking him.According to Smeal, Appellant kicked Robbins with such force that it lifted him off the ground.With Robbins immobilized, Appellant rifled through his pockets and then fled the scene.Smeal testified that she did not see the two men arguing before the attack, that she did not see a gun in Robbins' possession, and that she did not see Robbins enter Appellant's vehicle at any time.

Erin Fleek witnessed the event from her kitchen window in a nearby apartment building.She saw Appellant beat Robbins and then reach into the victim's pockets.Fleek and some of her friends went outside to intervene.They yelled for Appellant to stop the beating, and Fleek saw Appellant deliver one last kick to Robbins' head beforeleaving the scene.Fleek called 911 and provided a description of Appellant and his car.

Meanwhile, after finishing her closing duties, Carnes left the bar and saw Robbins lying motionless on the ground so badly beaten and covered with blood she did not recognize him.Sargent [sic]Patrick Reece saw Appellant's car leaving the scene.Reece activated his emergency equipment signaling Appellant to stop.Appellant drove on for a short distance before stopping, during which time Reece saw Appellant throw something out of the passenger side window.Further investigation disclosed that the item thrown from the vehicle was Robbins' wallet.

After his arrest, Appellant made several statements to the police.He told police that Robbins had asked him for a ride from the bar to Cincinnati where he planned to get crack cocaine and hire a prostitute.Appellant said he declined Robbins' request, and as they left the bar, Robbins seemed agitated.Appellant said that he told Robbins he would give him two Percocet pills which he had in his car.Robbins got into Appellant's car, and instead of Percocet, Appellant gave Robbins two ibuprofen tablets, which Robbins consumed.Appellant said that Robbins then became angry and aggressive.After Robbins took a swing at him, Appellant"busted his ass."During the police interview, Appellant never claimed that Robbins had a gun, but he testified at trial that Robbins drew a gun and threatened him.A BB gun was found at the scene where Robbins was beaten, although its source was never determined.Appellant testified that he beat Robbins because Robbins threatened him with a gun.

Robbins suffered devastating injuries to his face, eye, and mouth as a result of the assault.One of the first responders to the scene testified that the victim was bleeding from his head, barely breathing, and not moving.Robbins' recovery from the assault wasexacerbated by alcohol withdrawal symptoms and the preexisting conditions of Hepatitis C and cirrhosis of the liver.A few months after the assault, and before the trial, Robbins succumbed to his liver disease and died at the age of fifty-nine.

At trial, Appellant asserted the defense of self-protection, which he claimed was necessary because Robbins had pulled a gun on him and was otherwise threatening him by his actions.Appellant also asserted an extreme emotional disturbance (EED) defense and an instruction was given applicable to that theory.Appellant denied taking Robbins' wallet from his pocket.He claimed that Robbins had inadvertently left his wallet in Appellant's vehicle.The jury rejected Appellant's defenses and convicted him of first degree assault based upon the injuries inflicted upon Robbins and first degree robbery based upon the theft of Robbins' wallet.Judgment was entered accordingly[.]

Price v. Commonwealth, No. 2015-SC-000469-MR, 2016 WL 7665874, at *1-4(Ky.Dec. 15, 2016).

In his RCr 11.42 motion filed in the Kenton Circuit Court following his unsuccessful direct appeal, Price, acting pro se, alleged he was entitled to a new trial because his trial counsel was ineffective in the following ways: for misleading him as to the admissibility at trial of the victim's statements to the police; for failing to impeach witnesses to the assault with what he characterizes as prior inconsistent statements to police; for advising him to reject plea offers; for failing to object to the testimony of the victim's sister concerning the victim's allergy to ibuprofen; for failing to object to prosecution's argument that he struckRobbins in the head with a BB gun during the assault; and for answering a jury question during deliberations concerning whether his vehicle was searched by the police at the time of his arrest.

The trial court denied relief on each of the grounds without a hearing, except the court did order a hearing into the allegation that counsel misadvised Price concerning the plea offers made by the Commonwealth.Following that hearing, the trial court denied Price relief on that ground, as well, finding his counsel's testimony persuasive and Price's testimony unpersuasive.We affirm the trial court.

STANDARD OF REVIEW

This Court reviews a trial court's denial of an RCr 11.42 motion for an abuse of that court's discretion.Bowling v. Commonwealth, 981 S.W.2d 545, 548(Ky.1998).Abuse of discretion has been defined as being arbitrary, unreasonable, unfair, or unsupported by sound legal principles.Commonwealth v. English, 993 S.W.2d 941, 945(Ky.1999)(citations omitted).

For that sole issue as to which the trial court ordered and conducted an evidentiary hearing, i.e., whether counsel misadvised Price as to plea offers extended by the Commonwealth, we review the findings of fact of the trial court for clear error.CR² 52.01;Commonwealth v. Pridham, 394 S.W.3d 867, 875(Ky.2012).Findings of fact are not clearly erroneous if they are supported by substantial evidence.Eagle Cliff Resort, LLC v. KHBBJB, LLC, 295 S.W.3d 850, 853(Ky. App.2009).

A trial court reviews an allegation of ineffective assistance of trial counsel pursuant to the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).Under this highly deferential standard, the court must apply a two-part analysis first identifying error and then any resultant prejudice.

First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.Second, the defendant must show that the deficient performance prejudiced the defense.This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064.

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.A reasonable probability is the probability sufficient to undermine confidence in the outcome.

Id. at 694, 104 SCt.at 2068.

ANALYSIS

Price rather incoherently argues that he is appealing the trial court's failure to order an evidentiary hearing "on the issue of not admitting into evidence the statement made by Mr. Robbins, it is from this order Mr. Price now appeals."However, the briefing also addresses the issue upon which the trial court did grant an evidentiary hearing, i.e., whether counsel advised Price to reject certain plea offers.We will review only these two issues and none of the other issues originally...