Opinion
NO. 2018-CA-001429-MR
02-21-2020
GEORGE GOODMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Mark G. Hall Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE PHILLIP PATTON, JUDGE
ACTION NO. 12-CR-00003 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES. LAMBERT, JUDGE: In this post-conviction action, George Goodman has appealed from the order of the Edmonson Circuit Court denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief following an evidentiary hearing. In support of his motion for relief, Goodman cites ineffective assistance of both his trial and appellate counsel. We reverse and remand.
In January 2012, the Edmonson County grand jury indicted Goodman on thirty counts, each, of first-degree sexual abuse pursuant to Kentucky Revised Statutes (KRS) 510.110 and of first-degree unlawful transaction with a minor pursuant to KRS 530.064(1)(a). These offenses were alleged to have taken place between January 1, 2004, and December 31, 2010, and the victim was Goodman's stepdaughter. For a brief factual background of the case, we shall rely upon the recitation of the facts as set forth in the opinion by this Court in the direct appeal:
"Child" was born to "Mother" on February 2, 1995. Child's father is not a party to these proceedings. When Child was about four years old, Mother and Child moved into the residence of Stepfather. Mother married Stepfather the following year.
The record reveals that the same year in which Child and Mother moved into Stepfather's house, he began touching Child in an inappropriate and sexual manner. The nature of the touching is detailed in the record and need not be recited herein. Suffice it to say that Stepfather touched Child in a sexual manner variously ranging from seldom to several times a day until she reached the age of 15. Child told Mother about the sexual touching on at least two occasions, but Mother chose not to believe Child nor to confront Stepfather about it. As Child grew older, she developed a compulsion to cut herself on her wrists and ankles. She would later testify that she felt hopeless, overpowered and invisible.
When Child was 15 years old, she confided with her school friends about her tendency to self harm and they reported her statements to school authorities. An investigation followed, which resulted in Child acknowledging the molestation and cutting to a social
worker and Kentucky State Trooper Jeremy Hodges. Trooper Hodges then interviewed Stepfather, who admitted the nature and duration of the touching.G. G. v. Commonwealth, No. 2013-CA-001377-MR, 2014 WL 7206860, at *1 (2013-CA-001377-MR) (Ky. App. Dec. 19, 2014).
Goodman hired an attorney, and a jury trial was held in February 2013. The defense theory was that the victim made this complaint against Goodman when she was 14 years old because Goodman and her mother did not want her to have a boyfriend. Goodman had been teaching her martial arts techniques to protect herself since she was nine years old, and during the course of this training and other "playing around," Goodman had accidentally touched private areas of the victim's body. Goodman's statement to police was prompted by the officer because it was meant to help the victim. The victim had been using this circumstance to control the family. In its case in chief, the Commonwealth presented testimony from social worker Lauren Cottrell, the victim, the victim's mother, and Trooper Jeremy Hodges of the Kentucky State Police.
The victim, who was 18 years old at the time of the trial, testified about her life with her mother and Goodman, her stepfather. According to the victim, Goodman had been touching her between her legs since she was three years old and later touched her breasts. She told her mother about what had been happening when she was nine years old, but her mother did nothing to protect her. Goodman began homeschooling her when she was 11 or 12 years old, and the touching continued. She felt overpowered by him and became suicidal in the 9th or 10th grade. The victim recounted an argument right before her 15th birthday, after which the touching stopped. At that time, she had become interested in boys, but Goodman did not want her to date anyone. The victim reported this to Trooper Hodges after she returned to public school at the beginning of her junior year. She had spoken to two people about what had happened, and they told officials at the school. The victim was called to the office, where she spoke with Trooper Hodges and the social worker about what was going on at home. Her friends had reported seeing cuts on her wrists and her ankle and were concerned for her welfare at home because they knew what she was going through. She told the trooper and social worker everything that had happened.
On cross-examination, defense counsel questioned the victim about her statement to Trooper Hodges about participating in martial arts with Goodman. She denied telling the officer that she had participated in martial arts with him. We note that in the recorded interview, the victim stated Goodman had claimed he had been trying to teach her self-defense, not that he had actually been doing so. She went on to state that, after the fight when she was 14, Goodman told her and her mother that the activities were self-defense training. That was his way of teaching her self-defense, but he told her mother that it got out of hand and he started enjoying it, which is why he kept doing it.
The victim's mother, and Goodman's former wife, testified next. She and Goodman married in 2001; they had been together since 1999, when the victim was three years old. They separated in late 2011 or early 2012. The victim came to her when she was nine years old to say that Goodman had touched her. She confronted Goodman, who told her it was an accident. The victim also said it could have been an accident. Goodman admitted later that he had been touching the victim and that it had been going on for a long time. The mother did not take any action because she was confused and scared. She did not contact the police or Department for Community Based Services. She found out later how much this had affected the victim. She told Trooper Hodges what she knew. The mother was ultimately prosecuted. She reached an agreement with the Commonwealth but had not been promised anything. She thought she would have to go to jail.
On cross-examination, the mother stated Goodman trained her and the victim in martial arts and self-defense beginning when the victim was six or seven years old. Once the victim lost interest, the training ended. She went on to testify about the victim having a boyfriend and stated that Goodman had a problem with it.
Trooper Hodges testified next. The social worker contacted him to tell him that she was heading to the school to investigate possible sexual abuse and an attempted suicide. Trooper Hodges interviewed the victim and then spoke with Goodman after learning of the alleged acts of sexual abuse. The Commonwealth played Goodman's interview for the jury without objection from defense counsel. In the recording, Trooper Hodges told Goodman that, after being confronted with the self-harm, the victim told the trooper what had been going on in the house with Goodman. Hodges told Goodman that he wanted to help the victim through this conversation, and he asked Goodman to talk about when the touching took place. They discussed past molestation by a cousin and a future brother-in-law and that Goodman wanted to help the victim protect herself through martial arts training. He said in his ignorance, he went further than he should have. This started when the victim was eight or nine years old, when he touched her breast over her clothes. It accidentally happened when they were goofing off and he was teaching her martial arts. He admitted that it became a game and more intentional over time. This ended four years before when the victim was 12 or 13 years old. He said that while the first incident was not for sexual gratification, it turned into that. On cross-examination, defense counsel unsuccessfully sought to play the beginning of Trooper Hodges' interview with the victim in an attempt to show that the entire interview had not been recorded.
At the conclusion of the Commonwealth's case, defense counsel moved for directed verdicts on all counts. He argued that the Commonwealth had only introduced the victim's testimony to establish its case. Related to the unlawful transaction charges, there was no testimony by the victim that she had been forced to engage in any type of sexual acts, and she never committed any illegal sexual acts herself. The Commonwealth objected overall, citing the interview where Goodman stated the victim went along with the activities. The court denied the motion, noting that Goodman had told his wife that it had happened.
Goodman was the first witness to testify in his case-in-chief. He testified about the start of his relationship with the victim's mother. The mother and the victim moved in with him during the winter of 1999, and they were married in June 2001. About a year after they moved in, the mother thought he should be more of an authority figure for the victim because the victim would take advantage of him to get what she wanted. He testified about martial arts in the home, which started when the victim was eight or nine years old. They all participated in this, usually in the living room. He explained his activities with the victim, and he said they would "goof off," and that she might elbow him or kick him in the leg in the kitchen. They would grapple and wrestle until he began instructing again. He said sometimes she would turn and his hand would be in the wrong place, unintentionally.
Goodman testified about an incident on the couch when he touched the inside of the victim's thigh. She became upset, and they had a disagreement a few days later. She told her mother he had touched her that day. He stopped initiating horseplay with her after that, but he said the victim continued to do so. He said he told the mother, after an argument, that he had touched the victim's breast, but explained it was during grappling and was accidental. He said the mother and victim went outside to the car, then came back inside an hour later. He said the victim made demands. Goodman said he never did the martial arts training for sexual gratification and never had that on his mind. He felt awkward when a body part was touched. She would make a face, and it was embarrassing. When something happened, he would walk away, and she would laugh. He never planned for anything to happen.
On cross-examination, Goodman said he told Trooper Hodges that the touching was accidental at first, but it became intentional, and that it was for sexual gratification. On the stand, Goodman maintained that what he told Trooper Hodges was not true. On redirect examination, Goodman stated that Trooper Hodges started the recording after they began talking and that he understood he would be going to jail unless he said what the trooper wanted him to say and took responsibility.
Trooper Hodges was recalled to the stand next. He recalled telling Goodman that if he was honest with him, it would be beneficial. He denied saying anything that would have given Goodman the impression that he had to confess or take responsibility.
The victim was recalled next. Defense counsel questioned her about her testimony regarding self-defense training. She still denied being involved in any of that. Defense counsel sought to introduce her recorded interview with Trooper Hodges to establish inconsistencies with her trial testimony. The Commonwealth continued to object, stating that there were no inconsistencies. The court permitted the evidence to be introduced by avowal. Defense counsel explained to the court that the inconsistencies were in the level of specificity. She could not remember specific instances when Trooper Hodges asked, as opposed to during the trial. The court permitted the evidence to be admitted by avowal and marked defense exhibits 1 and 2 as not-admitted. The defense closed its case, and the Commonwealth did not have any rebuttal.
The parties and the court went on to discuss the charges upon which the jury would be instructed. The Commonwealth limited the charges to two counts of unlawful transaction with a minor and 30 counts of sexual abuse based upon the testimony of the victim and Goodman. Defense counsel objected to the 30 counts of sexual abuse due to the lack of specificity in the testimony. He went on to argue that there was no testimony that the victim had engaged in any active behavior to support the unlawful transaction charges. The Commonwealth countered that Goodman testified that the victim had participated. The court overruled Goodman's objections.
After closing arguments, the matter was submitted to the jury. The jury was only able to reach a verdict on six charges. The court opted to accept the verdicts the jury was able to agree upon and declared a mistrial on the remaining charges. The jury returned guilty verdicts on one count of unlawful transaction with a minor under Instruction No. 4 and of five counts of sexual abuse under Instruction Nos. 5, 14, 16, 17, and 26, as well as recommended sentences for each conviction. A sentencing hearing was scheduled for April. Defense counsel failed to appear for sentencing. However, the trial court sentenced Goodman pursuant to the jury's recommendation to a ten-year term of imprisonment on the unlawful transaction with a minor conviction and to a seven-year term on the sexual abuse charges. The sentences were ordered to run concurrently for a total of ten years.
Goodman directly appealed his conviction to this Court via a belated appeal, arguing that the circuit court committed reversible error in denying his motion for a continuance made on the day of trial, after counsel had been informed that the co-defendant (the victim's mother) had entered a guilty plea and would be testifying against him. In affirming his conviction, we held that Goodman had not met the burden of demonstrating that the denial of his motion for a continuance was an abuse of discretion. G.G. v. Commonwealth, 2014 WL 7206860, at *2.
Goodman's attorney committed suicide in May 2013, three months after the trial in this case and after the final judgment was entered, but before the time for filing a notice of appeal had expired.
On December 17, 2017, Goodman filed a motion to vacate his conviction pursuant to RCr 11.42, citing ineffective assistance of both trial and appellate counsel. He argued that his trial counsel was ineffective for failing to properly prepare and investigate the facts of the alleged offenses; ensure the jury was properly instructed; file a motion for a new trial or for a judgment notwithstanding the judgment; seek suppression of Goodman's recorded statement or exclusion of any references to uncharged conduct and inadmissible character evidence; conduct a competent voir dire; impeach the victim's testimony; and submit jury instructions, including any lesser included offenses or alternate theories of guilt. Goodman argued that his appellate counsel only raised one substantive issue on direct appeal. He also moved for an evidentiary hearing. In response, the Commonwealth argued that the RCr 11.42 motion did not merit any relief.
The court granted Goodman's motion for an evidentiary hearing, which was held on July 18, 2018. Goodman was the only witness to testify. He testified about the time he spent with his trial attorney in preparation for his trial as well as his version of the events that took place and the reasons he believed the victim made the accusations. The court denied Goodman's motion in an order entered August 29, 2018, holding that he had failed to satisfy either prong of the Strickland test. This appeal now follows.
The applicable standard of review in RCr 11.42 post-conviction actions is well-settled in the Commonwealth. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient, and 2) the deficient performance prejudiced the defense. 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), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874, 878 (Ky. 1969). Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. If an evidentiary hearing is held, as in the present case, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983).
In Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), the Supreme Court later observed:
In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949
S.W.2d 70 (1997). Strickland notes that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The right to effective assistance of counsel is recognized because of the effect it has on the ability of the accused to receive a fair trial.Haight, 41 S.W.3d at 441-42. With these standards in mind, we shall review the order on appeal.
In a RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, Ky., 433 S.W.2d 117, 118 (1968). Even when the trial judge does conduct an evidentiary hearing, a reviewing court must defer to the determination of the facts and witness credibility made by the trial judge. [Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky. 1998)]; McQueen v. Commonwealth, Ky., 721 S.W.2d 694 (1986); McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996).
For his first argument, Goodman contends that the circuit court failed to address his ineffective assistance of appellate counsel (IAAC) claim. The Commonwealth argues that Goodman waived this claim by failing to seek a ruling below. Goodman's IAAC claim was premised on his appellate counsel's failure to raise any issue other than the trial court's denial of his motion to continue the trial, which ruling this Court affirmed. He alleged that his appellate counsel should have raised the substantive issues raised in his RCr 11.42 motion and incorporated those arguments by reference in support of his IAAC claim in his motion below. Because the circuit court did not find any deficient and/or prejudicial conduct related to those substantive issues to warrant post-conviction relief, there was no need for it to address Goodman's IAAC claim, and we find no error in the failure to do so.
We shall now turn to Goodman's claims of ineffective assistance of his trial counsel. For his first argument, he asserts that his trial counsel was ineffective for failing to ensure he was properly sentenced for the sexual abuse convictions under the statute that was in effect at the time of the offenses. Goodman was sentenced to Class C felonies when he should have been sentenced to Class D felonies because the offenses took place prior to 2006. The jury recommended seven-year sentences for these convictions. The Commonwealth concedes that this was a violation of Webster v. Commonwealth, 438 S.W.3d 321 (Ky. 2014):
[Grigsby v. Commonwealth, 302 S.W.3d 52 (Ky. 2010),] identifies two situations where unpreserved sentencing issues will be treated as preserved for appellate review purposes: (1) when a sentencing decision is contrary to statute or (2) when a sentencing decision is made without full consideration of statutory sentencing options. [Id. at 54.] Notably, those sentencing issues that are automatically treated as preserved both involve sentencing decisions and do not involve any other aspect of the sentencing phase. See id.Id. at 325-26. The Commonwealth defers to this Court on the issue.
Based upon our review of the record and the Commonwealth's concession, we hold that Goodman's trial counsel's representation on this issue was deficient. However, we must also consider whether this deficient performance prejudiced Goodman. We recognize that the trial court sentenced Goodman to a ten-year term of imprisonment on the unlawful transaction with a minor conviction and to a seven-year term on the sexual abuse charges and ordered the sentences to run concurrently for a total of ten years. Therefore, Goodman could not suffer any prejudice unless his trial counsel's representation related to the unlawful transaction conviction was also ineffective. Accordingly, we must consider Goodman's next argument regarding his unlawful transaction with a minor conviction to determine whether any prejudice exists with regard to his deficient performance for the sexual abuse sentences.
Goodman presents two arguments in relation to the unlawful transaction with a minor conviction. First, he argues that the Commonwealth could not prove a violation of that offense as a matter of law and that his trial counsel should have raised this issue in a motion for a directed verdict and by more effectively objecting to the jury instruction. In addition, Goodman argues that his appellate attorney should have raised this issue on direct appeal. Second, he argues that his trial counsel should have requested that the jury be instructed on lesser included offenses.
The offense of unlawful transaction with a minor is set forth in KRS 530.064(1):
A person is guilty of unlawful transaction with a minor in the first degree when he or she knowingly induces, assists, or causes a minor to engage in:
(a) Illegal sexual activity; or
(b) Illegal controlled substances activity other than activity involving marijuana or salvia, as defined in KRS 218A.010;
Except those offenses involving minors in KRS Chapter 531 and in KRS 529.100 where that offense involves commercial sexual activity.
In Young v. Commonwealth, 968 S.W.2d 670, 672 (Ky. 1998), overruled on other grounds by Matthews v. Commonwealth, 163 S.W.3d 11 (Ky. 2005), the Supreme Court of Kentucky discussed the elements of this offense:
None of the elements of this offense are [sic] statutorily defined. However, "induce" is considered synonymous with "persuade" and "prevail." Webster's Third New International Dictionary 1154 (Merriam-Webster 1993). In interpreting a similar statute, the Supreme Judicial Court of Maine held in State v. Miller, 252 A.2d 321 (Me. 1969) that:
The term induce signifies a successful persuasion; that the act has been effective and the desired result obtained. State v. Stratford, 55 Idaho 65, 37 P.2d 681 (1934); Hautau v. Kearney & Trecker Corporation, 179 F.Supp. 490 (E.D. Mich. 1959); Vol. 21 Words and Phrases, Permanent Ed., p. 481.
The charge of inducing one to take indecent liberties means that the persuasion has resulted in the doing of the indecent act.
The Young Court went on to discuss what constituted "illegal sexual activity" pursuant to the statute.
Id. at 325.
To "engage" denotes action and means "to employ or involve one's self; to take part in." Black's Law Dictionary 528 (6th ed. 1990). Thus, to complete the offense, the minor must consent to and actively participate in the activity.
Several years later, the Supreme Court again addressed this statute in Combs v. Commonwealth, 198 S.W.3d 574 (Ky. 2006):
We analyzed this statute at length in Young v. Commonwealth, 968 S.W.2d 670 (Ky. 1998), overruled on other grounds by Matthews v. Commonwealth, 163 S.W.3d 11, 26-27 (Ky. 2005), concluding that "any sexual activity with a child less than twelve years of age is illegal, regardless of the age of the perpetrator." Id. at 672. However, we also concluded that "to induce" "signifies a successful persuasion; that the act has been effective and the desired result obtained," id. (quoting State v. Miller, 252 A.2d 321, 325 (Me. 1969)); and that "'to engage' denotes action and means 'to employ one's self; to take part in."' Id. (quoting Black's Law Dictionary 528 (6th ed. 1990)). "Thus, to complete the offense, the minor must consent to and actively participate in the activity." Id. By H.A.'s own account
that she "did not want him to do it," she did not consent to and actively participate in Appellant's fondling of her breasts and vagina or his digital penetration of her vagina. She specifically testified with respect to the masturbation incident that Appellant attempted to induce her to touch his penis but that she refused to engage in that activity. Thus, she did not testify to any activity that could constitute a violation of KRS 530.064(1).Combs, 198 S.W.3d at 577-78. Goodman cites to both Young and Combs in his brief.
"'Consent,' as used here, does not mean 'legal consent.' The law deems a person under the age of sixteen to be incapable of consent. KRS 510.020(3)(a). As used here, it means 'to willingly engage in' the activity." (Footnote 2 in original.)
And more recently, the Supreme Court discussed the statute in Hale v. Commonwealth, 396 S.W.3d 841 (Ky. 2013), which the Commonwealth cited in its brief. In Hale, the Supreme Court considered the history of the unlawful transaction with a minor statute since its first enaction in 1974 as part of Kentucky's new Penal Code, focusing on the General Assembly's intent.
Had the General Assembly intended to depart from the earlier contributing-to-the delinquency-of-a-minor idea (and from the Commentary embracing that idea) and to limit KRS 530.064 to inducements to commit a crime, it could and very likely would have said so, as it has done in the criminal solicitation statute, KRS 506.030. The legislature's choice not to refer specifically to a "crime" by the minor, but to use the much more general expression "engage in illegal sexual activities" persuades us again, as in Young, that the narrow reading Hale proposes was not intended and that the overlap with KRS Chapter 510 was intended, the General Assembly deliberately affording grand juries and prosecutors an important option when minors have been induced to engage in sex for which they are too young to consent. See also Quist v. Commonwealth, 338 S.W.3d 778 (Ky.
App. 2010) (rejecting claim that KRS 530.064 does not apply unless the minor is induced to commit a crime).Hale, 396 S.W.3d at 849-50 (footnote omitted). Based upon this holding, the Commonwealth contends that it did not have to prove that Goodman had induced the victim to commit a crime to be convicted of this offense.
The court instructed the jury under Instruction No. 4 that it would find Goodman guilty if it believed beyond a reasonable doubt that "on or about February 2, 2007 and February 1, 2010 . . . he knowingly induced, assisted, or caused [the victim] to engage in illegal sexual activity when he touched her breasts[.]" The victim was between the ages of 12 and 14 during this period of time. Goodman contends that the Commonwealth failed to prove that the victim consented because she had objected to his conduct and that martial arts training does not constitute illegal sexual activity. In its order, the circuit court pointed out that Goodman's trial counsel objected to the jury instructions, and it relied upon Goodman's own testimony that the victim had willingly participated in the martial arts training to find a basis for the unlawful transaction with a minor charges.
The jury did not reach a verdict on the second count of unlawful transaction with a minor for touching her inner thigh.
Our review of the record supports the circuit court's finding that trial counsel had objected to the instructions for the unlawful transaction charges and had moved for a directed verdict on those charges. Trial counsel argued that there was no testimony by the victim that she had been forced to engage in any type of sexual acts and there was no active behavior on her part. The victim never committed any illegal sexual acts herself and was never required to do so. We also observe that the victim denied ever participating in martial arts training with Goodman. The Commonwealth, as did the circuit court, relied upon the interview where Goodman stated the victim went along with the training activities and had participated. Because the record reflects that trial counsel actually made the proper arguments to the court to defend against this charge, we cannot find any deficient performance on his part.
However, we do believe that this substantive issue should have been raised on direct appeal by Goodman's appellate counsel. The Supreme Court of Kentucky recognized the claim of ineffective assistance of appellate counsel in Hollon v. Commonwealth, 334 S.W.3d 431, 436-37 (Ky. 2010):
We are thus persuaded that it is time, indeed past time, to overrule Hicks and the cases relying upon it and to recognize IAAC claims premised upon appellate counsel's alleged failure to raise a particular issue on direct appeal. To succeed on such a claim, 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. As the Supreme Court noted in [Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)], "'[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance be overcome.'" 528 U.S. at 288, 120 S.Ct. 746 (quoting
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). We further emphasize "ignored issues" to underscore that IAAC claims will not be premised on inartful arguments or missed case citations; rather counsel must have omitted completely an issue that should have been presented on direct appeal. For further clarity, we additionally emphasize that IAAC claims are limited to counsel's performance on direct appeal; there is no counterpart for counsel's performance on RCr 11.42 motions or other requests for post-conviction relief. Finally, the defendant must also establish that he or she was prejudiced by the deficient performance, which, as noted, requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded. Smith, supra.
While the Commonwealth contends it did not have to prove that the victim had been induced to commit a crime, it did have to prove that she had been induced to participate in illegal sexual activity. See Hale, supra. The victim vehemently denied that she had willingly participated in these activities with Goodman. The Commonwealth and the circuit court, on the other hand, relied on Goodman's testimony that the victim had participated in the martial arts training. As Goodman argues in his brief, martial arts training is not illegal, and the court should not have equated the inducement requirement for the unlawful transaction charge with such legal activity. Had appellate counsel raised this issue on appeal, a reasonable probability exists that Goodman's conviction on the unlawful transaction with a minor charge would have been reversed. Accordingly, we hold that Goodman has established that his appellate counsel was deficient for failing to raise this issue on direct appeal and that he was prejudiced as a result. The circuit court erred as a matter of law in holding otherwise.
And because we have found defective and prejudicial performance related to the unlawful transaction with a minor charge, we must therefore find Goodman was prejudiced by his trial counsel's deficient performance related to the sexual abuse convictions. We need not address the remaining arguments based upon our holding.
For the foregoing reasons, the order of the Edmonson Circuit Court denying Goodman's motion for RCr 11.42 relief is reversed, and this matter is remanded for a new trial.
ALL CONCUR. BRIEFS FOR APPELLANT: Mark G. Hall
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky