Stacy v. Commonwealth

• Decision Date: 15 April 2016
• Docket Number: NO. 2015-CA-000585-MR,2015-CA-000585-MR
• Parties: NEWELL STACY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

NEWELL STACYAPPELLANT v. COMMONWEALTH OF KENTUCKYAPPELLEE

NO. 2015-CA-000585-MR

Commonwealth of Kentucky Court of Appeals

APRIL 15, 2016

NOT TO BE PUBLISHED

APPEAL FROM BOYLE CIRCUIT COURT

HONORABLE DARREN W. PECKLER, JUDGE

ACTIONNO. 10-CR-00037

OPINION

AFFIRMING

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BEFORE: DIXON, NICKELL, AND VANMETER, JUDGES.

DIXON, JUDGE: Appellant, Newell Stacy, appeals pro se from an order of the Boyle Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42.Finding no error, we affirm.

On August 21, 2009, a riot broke out at the Northpoint Training Center, a prison facility in Burgin, Kentucky.During the riot, inmates set fire to buildings, tore down fences and threw rocks and other items at correctional officers.Correction Officer Tim Peavyhouse observed Appellant attempting to break into the multipurpose center door using a concrete slab.Being unsuccessful in breaking into the door, Appellant broke some of the windows, lit toilet paper on fire, and threw it inside the building.He also set fire to a trashcan and threw it on top of the roof of the building.This, along with fires set by other inmates, eventually led to the destruction of the multipurpose building.

A Boyle County grand jury indicted Appellant for first-degree arson, first-degree riot, and being a first-degree persistent felony offender (PFO).After a jury trial in which Appellant was represented by the Department of Public Advocacy, he was found guilty of first-degree riot and first-degree PFO.The jury hung on the charge of first-degree arson.The Boyle Circuit Court entered a judgment against Appellant, sentencing him to a total of twenty years' imprisonment.He thereafter appealed, as a matter of right and the Kentucky Supreme Court affirmed the judgment of the trial court.Stacy v. Commonwealth, 396 S.W.3d 787(Ky.2013).

In August 2013, Appellant filed a motion in the trial court styled "Motion for Vacatur."Therein, Appellant alleged various errors of both trial and appellate counsel.Because the motion's style was a manner not recognized by Kentucky courts, the trial court construed it as a motion to vacate under CR 60.02.Therefore, the trial court denied the motion, finding that the issue of whether trial counsel had a conflict had been raised and decided on direct appeal, and that CR60.02 was not the appropriate avenue in which to attack ineffective assistance of trial counsel and/or appellate counsel.Appellant thereafter appealed to this Court.In an unpublished opinion, we reversed the trial court and remanded the matter for consideration of Appellant's ineffective assistance of counsel arguments under the RCr 11.42 standard.Stacy v. Commonwealth, 2013-CA-1884(November 14, 2014).On remand, the trial court considered Appellant's motion under the standards set forth in RCr 11.42, but again denied relief.Stacy appeals to this Court as a matter of right.

In an RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right that would justify the extraordinary relief afforded by the post-conviction proceeding.Dorton v. Commonwealth, 433 S.W.2d 117, 118(Ky.1968).An evidentiary hearing is warranted only "if there is an issue of fact which cannot be determined on the face of the record."Stanford v. Commonwealth, 854 S.W.2d 742, 743-44(Ky.1993), cert. denied, 510 U.S. 1049(1994); RCr 11.42(5).See alsoFraser v. Commonwealth, 59 S.W.3d 448, 452(Ky.2001);Bowling v. Commonwealth, 981 S.W.2d 545, 549(Ky.1998), cert. denied, 527 U.S. 1026(1999)."Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition."Sanders v. Commonwealth, 89 S.W.3d 380, 385(Ky.2002), cert. denied, 540 U.S. 838(2003), overruled on other grounds inLeonard v. Commonwealth, 279 S.W.3d 151(Ky.2009).However, when the trial courtconducts an evidentiary hearing, the reviewing court must defer to the determinations of fact and witness credibility made by the trial judge.McQueen v. Commonwealth, 721 S.W.2d 694(Ky.1986);Commonwealth v. Anderson, 934 S.W.2d 276(Ky.1996);McQueen v. Scroggy, 99 F.3d 1302(6th Cir.1996).

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), sets forth the standards which measure ineffective assistance of counsel claims.In order to be ineffective, performance of counsel must fall below the objective standard of reasonableness and be so prejudicial as to deprive a defendant of a fair trial and a reasonable result.Id."Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won."United States v. Morrow, 977 F.2d 222, 229(6th Cir.1992), cert. denied, 508 U.S. 975(1993).Thus, the critical issue is not whether counsel made errors, but whether counsel was so "manifestly ineffective that defeat was snatched from the hands of probable victory."Id .

In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the trial court or jury and assess the overall performance of counsel throughout the case in order to determine whether the alleged acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.Strickland;see alsoKimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 302(1986).A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render reasonablyeffective assistance.McQueen v. Commonwealth, 949 S.W.2d 70(Ky.1997), cert. denied, 521 U.S. 1130(1997).The Supreme Court in Strickland noted that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Appellant first argues that his trial counsel was ineffective because counsel(1) had an inherent conflict of interest; (2) failed to advocate Appellant's pretrial motions to the court, namely a motion for a speedy trial; (3) obstructed Appellant's ability to obtain all discovery; and (4) failed to contact witnesses that possessed exculpatory evidence.We disagree.

Appellant first claims that his trial counsel's representation of him and several other Northpoint inmates involved in the same prison riot was a conflict of interest.However, as the trial court noted, this issue was resolved by the Kentucky Supreme Court on direct appeal, wherein the Court concluded,

Appellant also asserts that his Sixth Amendment right to effective assistance of counsel was violated because he was represented by counsel who had a conflict-of-interest.Specifically, Appellant argues that his counsels' joint representation of him and several others charged with crimes arising out of the Northpoint prison riot amounted to reversible error.Appellant further argues that the trial court violated RCr 8.30 and that this violation is a reversible error as well.

According to Appellant, he was represented by several attorneys from the Department of Public Advocacy over the course of his defense.At his arraignment, Appellant was represented by DPA Attorney Susanne McCollough.At a later status conference, he was represented by DPAAttorney Elizabeth Kidd.At a subsequent preliminary hearing, Appellant was represented by DPA Attorney Stacy Coontz.Several months later at his trial, Appellant asserts he was represented by McCollough, Kidd, and DPA Attorney Leslie Ayers.According to Appellant, these attorneys also represented several other defendants who were being tried for crimes arising out of their participation in the riot.

After review, we disagree with Appellant for two reasons.First, Appellant has failed to show that a cognizable Sixth Amendment violation exists because he was represented by other defendants' counsel.Second, Appellant has failed to show prejudice in order to establish a reversible RCr 8.30 violation.

. . .

The Sixth Amendment provides that a criminal defendant shall have the right to the "Assistance of Counsel for his defence."U.S. Const. amend. VI.This right includes "the right to effective assistance of counsel,"Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), and effective assistance "includes the right to representation free from conflicts of interest."Rubin v. Gee, 292 F.3d 396, 401(4th Cir.2002)(citingCuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333(1980);Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220(1981)).

Appellant's claim, is of course, an ineffective assistance of counsel claim.However, "[a]s a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal ... because there is usually no record or trial court ruling on which such a claim can be properly considered."Humphrey v. Commonwealth, 962 S.W.2d 870, 872(Ky.1998)(citingCaslin v. Commonwealth, 491 S.W.2d 832(Ky.1973))."This is not to say, however, that a claim of ineffective assistance of counsel is precluded from review on direct appeal, provided there is a trial record, or an evidentiary hearing is held on motion for a new trial, and the trial court rules on the issue."Humphrey, 962 S.W.2d at 872-73(citingHopewell v. Commonwealth, 641 S.W.2d 744(Ky.1982);Wilson v. Commonwealth, 601 S.W.2d 280, 284(Ky.1980)).

[W]e find that there is nothing present in the record which would "establish that an actual conflict of interest adversely affected [Appellant's] lawyer's performance."Sullivan, 446 U.S. at 350, 100 S.Ct. 1708.Appellant's bare assertion that a conflict did in fact exist because his lawyers represented other Northpoint defendants does not establish that counsel's performance was adversely affected.Contrary to Appellant's assertion, joint or multiple

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