Opinion
NO. 2018-CA-000754-MR
06-28-2019
MARCUS PERRY GREEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Christine Foster Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 14-CR-00701-1 OPINION
AFFIRMING
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BEFORE: ACREE, NICKELL, AND L. THOMPSON, JUDGES. NICKELL, JUDGE: Marcus Perry Green has appealed from the Fayette Circuit Court's denial of his RCr 11.42 motion for post-conviction relief. He contends his trial counsel was ineffective in failing to file a motion to suppress evidence seized at his arrest and the trial court erred in not so finding. Following a careful review, we affirm.
Kentucky Rules of Criminal Procedure.
Green entered a guilty plea to trafficking in a controlled substance in the first degree, less than two grams of heroin, and being a persistent felony offender in the first degree (PFO I) following a traffic stop on May 7, 2014. As part of his plea agreement, two traffic violations were dismissed, as were other unrelated felony and misdemeanor charges pending under different indictments against himself and his brother. Green was sentenced on September 19, 2014, to an enhanced term of ten years' imprisonment.
Kentucky Revised Statutes (KRS) 218A.1412, a Class D felony.
These additional charges stemmed from execution of a search warrant at Green's home approximately one month after the traffic stop. A firearm and a large quantity of drugs were recovered. --------
Just under three years later, on May 30, 2017, Green filed a pro se motion for post-conviction relief pursuant to RCr 11.42 raising four allegations of ineffectiveness of his trial counsel. In a supplemental filing tendered by appointed counsel in September 2017, one of the original claims was expanded. Green claimed his counsel failed to perform an adequate investigation prior to advising him to enter a guilty plea, did not pursue a motion to suppress the evidence seized at his arrest, neglected to investigate his mental history and competency, and misadvised him regarding sentencing and parole eligibility. He alleged absent these errors or the cumulative effect thereof, he would not have pled guilty but would have insisted on going to trial. Without convening an evidentiary hearing, on April 30, 2018, the trial court denied Green's motion in a comprehensive order. This appeal followed.
Before this Court, Green challenges only trial counsel's failure to pursue suppression of the evidence seized, seemingly abandoning his remaining allegations of trial counsel ineffectiveness. "Normally, assignments of error not argued in an appellant's brief are waived." Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky. 1987). "An appellant's failure to discuss particular errors in his brief is the same as if no brief at all had been filed on those issues." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Thus, our focus shall be on the only assertion of error presented in Green's brief.
Prior to considering Green's arguments, we note first we review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014). The test for abuse of discretion 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) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both deficient performance by counsel, and the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As established in Bowling v. Commonwealth, 80 S.W.3d 405 (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, the defendant 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.Id. at 411-12. In the context of a guilty plea, the prejudice prong requires showing "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Additionally, we note the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances, counsel's action "might be considered sound trial strategy. . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations and internal quotation marks omitted).
Green asserts trial counsel was deficient in failing to pursue suppression of the evidence seized following the roadside traffic stop. He acknowledges two of his co-defendants filed unsuccessful suppression motions, but claims different grounds existed which would have justified suppression had they been raised by his counsel. While his co-defendants focused on the legality of the initial stop, Green asserts the stop was unlawfully extended to permit a canine sniff search of the vehicle. He claims this theory was not presented to the trial court for consideration and counsel's failure to do so constituted ineffective and prejudicial assistance requiring reversal. We disagree.
Green relies primarily on Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016), in support of his position. In Davis, our Supreme Court recognized a clarification of the law by the United States Supreme Court set forth less than a year earlier in Rodriguez v. United States, 575 U.S. ___, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), announcing "any prolonging of the stop beyond its original purpose is unreasonable and unjustified; there is no 'de minimis exception' to the rule that a traffic stop cannot be prolonged for reasons unrelated to the purpose of the stop." Id. at 294 (emphasis original). Green sets forth a detailed recitation of the facts he believes warrant a finding the traffic stop was unlawfully prolonged beyond the original purpose of investigating a simple traffic violation, thereby mandating suppression. He concedes the initial stop was justified.
A lawful traffic stop "can become unlawful if it is prolonged beyond the time reasonably required to issue a traffic citation." Commonwealth v. Smith, 542 S.W.3d 276, 281 (Ky. 2018) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Thus, prolonging a traffic stop beyond what is reasonably required to complete the purpose of the stop violates the Fourth Amendment's protection against unreasonable seizures. Smith, 542 S.W.3d at 281 (citing Rodriguez, 135 S.Ct. at 1616). Further detention of a driver becomes unreasonable when the "tasks tied to the traffic infraction are—or reasonably should have been—completed[.]" Smith, 542 S.W.3d at 281-82 (quoting Rodriguez, 135 S.Ct. at 1614).
We have reviewed the record and discern no evidence the traffic stop was prolonged. Within the first two minutes after pulling over Green, and while preparing the traffic citation, Officer Adam Ray received information from another officer Green was an acknowledged gang member known to carry weapons and narcotics. In the interest of officer safety, Officer Ray determined to frisk the occupants of the vehicle for weapons. While the frisks were ongoing, another officer requested a canine come to the scene. The canine arrived on-scene within a few minutes and alerted on the vehicle contemporaneously with Officer Ray completing the frisks. There was no improper extension of the stop to facilitate the sniff search as Green asserts.
We conclude nothing in this record indicates a suppression motion based on Green's theory would have been unquestionably successful as he contends. Counsel's decision not to file such a motion does not indicate deficient performance, no prejudice can be implied, and Green has not carried the heavy burden of overcoming the strong presumption of constitutionally effective assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The trial court correctly denied Green's post-conviction motion for relief.
For the foregoing reasons, the judgment of the Fayette Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Christine Foster
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky