APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 14-CR-00034-002
OPINION
AFFIRMING
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BEFORE: DIXON, KRAMER, AND TAYLOR, JUDGES.
DIXON, JUDGE: Isaiah William Tyler appeals from the order denying his motion to vacate, set aside, or correct judgment and sentence pursuant to RCr1 11.42 andCR2 60.02 entered by the Henderson Circuit Court. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
The facts of the underlying action were previously summarized by the Supreme Court of Kentucky on Tyler's direct appeal.
At around 4:40 a.m. on the morning of December 4, 2013, Erin Floyd, manager of the EZ Shop in Henderson, was training an employee, LaStar McGuire, when three black men wearing hooded sweatshirts and masks entered the store. One of the assailants was armed with a hatchet, and the other two were armed with knives.
The women were ordered to lie on the floor. Floyd was then grabbed by her hair and escorted to one of the store's safes by two of the robbers, including the hatchet-wielding man. The robbers demanded that Floyd open the safe, threatening her with the hatchet, and she complied. The robbers then ordered her to lie on [the] floor, removed the safe's contents, and fled the store, taking Floyd's keys with them. McGuire was unable to observe their car or any other identifying information.
Neither Floyd nor McGuire recognized the three robbers or were able to identify them by sight. Floyd, however, believed she recognized the voice of one of the assailants as belonging to Jeremy Raggs, who was the boyfriend of Monica Green, a former employee of the EZ Shop who had recently been terminated. And Floyd indicated that the robbers had exhibited knowledge about the store, such as the location of its two safes, that would not have been known to the general public.
Thus suspecting Raggs and Green of involvement in the robbery, police located them at Green's apartment as the two were getting into Green's tan Cadillac. Green drove off with Raggs as her passenger, fleeing the officer when he attempted to stop them. The officer pursued the couple in his squad car, and both were eventually arrested after Raggs jumped from Green's car and attempted to escape on foot.
Once in custody, Raggs admitted his involvement in the crime. He explained that Green had provided to him information about the EZ Shop and that he had recruited the Appellant, Isaiah Tyler, and Tyler's half-brother, Josh Ervin, to help pull off the robbery. Raggs told police that he had driven the three of them to the EZ Shop in Green's Cadillac and, after completing the robbery, to the house Tyler and Ervin had shared (which had belonged to their recently deceased mother), where they split the proceeds of their crime.
Based on this information, police obtained and executed search warrants at Green's apartment and Tyler's and Ervin's house.
In Green's apartment, police found the $200 Raggs admitted receiving from the robbery. They also found Floyd's keys in Green's car.
Tyler was home alone when the police executed the warrant at the brothers' house. In the front bedroom of the house, police discovered coins and paper money, coin wrappers, a coin box, bank bags labeled "EZ Shop No. 3," and a piece of a cut-up black shirt. Also in that bedroom, police reportedly found a photo identification card. (For some unknown reason, the actual card was not preserved as physical evidence and there was conflicting evidence whether it belonged to Tyler or Ervin.) Police also discovered elsewhere in the house a knife, brass knuckles, a hatchet, hooded sweatshirts and sweatpants, and additional pieces of the cut-up black shirt.
Later, while in jail, Raggs prepared a notarized statement indicating that he had falsely implicated Tyler in the robbery in his statements to police. But he retracted that statement in his testimony at Tyler's trial, explaining that he had only written it because he felt bad and at fault for Tyler's arrest. (Tyler also reportedly paid him for writing the statement, although Raggs testified that he was going to write it anyway and that Tyler had only offered to pay him after he had already decided to do so.) Instead, Raggs testified that his initial statements about the robbery and Tyler's involvement were true and that he had accepted a plea offer from the Commonwealth contingent upon his testifying at Tyler's trial.
Ultimately, Tyler was convicted of complicity to first-degree robbery and of being a second-degree persistent felony offender (PFO). The jury recommended a prison sentence of forty years, and he was sentenced accordingly.
Tyler v. Commonwealth, 2015-SC-000064-MR, 2016 WL 3370931, at *1-2 (Ky. June 16, 2016). The Supreme Court of Kentucky affirmed, prompting Tyler, pro se, to move the trial court to vacate, set aside, or correct his sentence, alleging ineffective assistance of counsel ("IAC") and "newly discovered" evidence. The trial court denied his motion. This appeal followed.
COMPLIANCE WITH RULES OF APPELLATE PRACTICE We begin by commenting on the proper structure of an appellate brief and the importance of preservation. CR 76.12(4)(c)(v) requires each argument in the brief for appellant to begin with a statement of preservation referencing "the record showing whether the issue was properly preserved for review and, if so, inwhat manner." The same rule also requires each argument to contain "ample supportive references to the record and citations of authority pertinent to each issue of law[.]" Id. Tyler's brief contains no statement of preservation for any issue raised.
We have three options: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)." Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). "While pro se litigants are sometimes held to less stringent standards than lawyers in drafting formal pleadings, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), Kentucky courts still require pro se litigants to follow the Kentucky Rules of Civil Procedure." Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky. App. 2009). Due to our resolution of this action, we have chosen not to penalize the appellant.
Denial of RCr 11.42 relief is reviewed for abuse of discretion. Phon v. Commonwealth, 545 S.W.3d 284, 290 (Ky. 2018) (citing Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014)). Denial of a CR 60.02 motion is also reviewed for abuse of discretion. St. Clair v. Commonwealth, 451 S.W.3d 597, 617 (Ky. 2014) (citing Bedingfield v. Commonwealth, 260 S.W.3d805, 810 (Ky. 2008)). The test is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Legal issues are reviewed de novo. Phon, 545 S.W.3d at 290.
To establish ineffective assistance of counsel, a movant must satisfy a two-pronged test showing counsel's performance was deficient and that the deficiency caused actual prejudice, resulting in a fundamentally unfair proceeding with an unreliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel:
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 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.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, thedefendant must show 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 the confidence in the outcome.
Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.
Both Strickland prongs must be met before relief may be granted. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In the instant case, we need not determine whether Tyler's trial counsel's performance was adequate because Tyler fails to demonstrate prejudice resulting from counsel's allegedly deficient performance.3
To establish prejudice, a movant must show a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694, 104 S.Ct at 2068. In short, one must demonstrate "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 693. Fairness is measured in terms of reliability. "The likelihood of a different result must be substantial, not just conceivable." Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012) (quoting Harrington v Ritcher, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)).
Mere speculation as to how other counsel might have performed either better or differently without any indication of what favorable facts would have resulted is not sufficient.
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