RENDERED: MAY 5, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2016-CA-000393-MR ANTONIO ELLISON APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE CHARLES LOUIS CUNNINGHAM, JR., JUDGE ACTION NO. 09-CR-003445 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Antonio Ellison appeals from an Order of the Jefferson Circuit Court denying his Motion for RCr 1 11.42 relief from Judgment. Ellison ( Appellant ) argues that because he presented meritorious claims of ineffective assistance of counsel supported by specific facts, the circuit court erred in 1 Kentucky Rule of Criminal Procedure.
summarily overruling his Motion without a hearing. Having closely studied the record and the law, we find no error and AFFIRM the Order on appeal. In the interest of judicial economy, we adopt the recitation of facts and procedural history set out in Ellison v. Commonwealth, 2013-SC-000518-MR, 2014 WL 7238821 (Ky. Dec. 18, 2014), wherein the Kentucky Supreme Court stated as follows: Around seven p.m. on October 20, 2009, several Louisville Metro Police Officers were engaged in a traffic stop on the interstate 64 on-ramp near Portland and Lytle streets in Louisville. During the traffic stop, the officers heard gunshots from a nearby alley. They observed what was later determined to be a green Mazda leaving the alley. The officers pursued the vehicle in their police cruisers. After the Mazda eventually stopped, the Appellant T.J. Ellison exited the vehicle and fled the scene. One of the officers unsuccessfully pursued him on foot. The officers remaining at the scene arrested the vehicle s driver, Clinton Jones, and the backseat passenger, Dontay Rice. A revolver, a small amount of cocaine, and multiple cell phones were discovered in the vehicle. The body of the victim, Ricco Cunningham, was found in the alley from which the Mazda had exited. He died as a result of two gunshot wounds to the face. Ellison was eventually apprehended and arrested. Ellison was indicted by a Jefferson County grand jury for complicity to murder; complicity to first-degree trafficking in a controlled substance while in possession of a firearm; and first-degree fleeing or evading the police. Jones and Rice were indicted for complicity to murder; complicity to first-degree trafficking in a controlled substance while in possession of a firearm; and possession of a handgun by a convicted felon. Jones was additionally charged with operating a motor vehicle -2-
without a license. Rice, Jones, and Ellison were all tried together. The first jury trial began on November 29, 2011, and resulted in a mistrial. The second joint trial took place in February, 2013. Upon conclusion of the second trial, a Jefferson Circuit Court jury found Ellison guilty of complicity to murder; facilitation to first-degree trafficking in a controlled substance while in possession of a firearm; and first-degree fleeing or evading the police. The jury recommended a sentence of life imprisonment for the complicity to murder conviction, 12 months for the facilitation to trafficking conviction, and three years for the fleeing or evading conviction. All sentences were ordered to run concurrently for a total sentence of life imprisonment. Id. at 1. Appellant prosecuted an appeal to the Kentucky Supreme Court in which he raised five claims of error allegedly occurring at trial. Of relevance herein, Appellant argued that the second trial violated his right against double jeopardy. In support of this argument, Appellant maintained that the trial court erred in failing to engage him in an extensive colloquy to determine whether his waiver of the right against double jeopardy - made to facilitate the Order of mistrial - was knowingly and voluntarily made. In considering this argument, the Kentucky Supreme Court determined that Appellant s trial counsel expressively waived Appellant s right against double jeopardy, that counsel advised Ellison of the issue and that Appellant was present during the proceedings. The Kentucky Supreme Court further concluded that Appellant presented no authority stating that the double -3-
jeopardy defense cannot be waived through counsel. As such, the Supreme Court reasoned that the trial court did not err by denying Ellison's motion to dismiss on double jeopardy grounds, id. at 2, and it refused to reverse the Judgment of conviction on this issue. Thereafter, Appellant filed an RCr 11.42 Motion in Jefferson Circuit Court to vacate, set aside or correct his sentence. In support of the Motion, Appellant maintained that his trial counsel did not consult or adequately consult with him prior to waiving a double jeopardy defense if a mistrial were declared. He argued that this failure constituted ineffective assistance. Upon considering the Motion, the circuit court rendered an Order denying same on March 10, 2016. As a basis for the ruling, the court cited the Kentucky Supreme Court s holding that no error occurred below in the application or waiver of any potential double jeopardy defense, nor the failure of the trial court to conduct a colloquy, nor in counsel s discussion of the waiver with Appellant. The court further determined that no hearing was required to adjudicate the Motion. This appeal followed. Appellant now argues that the Jefferson Circuit Court committed reversible error in denying his RCr 11.42 Motion, and in failing to conduct a hearing on the matter. After directing our attention to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Appellant contends that the circuit court chose to simply disbelieve or ignore the facts alleged by him in support of his Motion. Appellant argues that his counsel neither consulted with, -4-
nor obtain consent from, him prior to purportedly waiving his fundamental constitutional rights assured by the Double Jeopardy Clauses of the Kentucky and United States Constitution. Appellant goes on to contend that his claim of ineffective assistance differs from his direct appeal claim regarding double jeopardy, and that the circuit court erred in relying on the Kentucky Supreme Court opinion as a basis for disposing of the claim of ineffective assistance of counsel. In sum, Appellant argues that he presented meritorious claims of ineffective assistance of counsel supported by specific facts, and that the Jefferson Circuit Court erred in failing to conduct a hearing on the Motion and to grant the relief sought. must show two things: To prevail on a claim of ineffective assistance of counsel, Appellant 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. [T]he proper standard for attorney performance is that of reasonably effective assistance. Id. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a -5-
defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. (Internal citation omitted). Id. at 691-92. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Id. at 693. 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 a probability sufficient to undermine confidence in the outcome. Id. at 694. Additionally, a hearing is required 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). In addressing the double jeopardy issue on direct appeal, the Kentucky Supreme Court determined Appellant s counsel expressly waived the double jeopardy defense on behalf of Appellant, advised Appellant of the issue and that Appellant was present during the proceedings. The court went on to conclude that Appellant presented no authority for the proposition that counsel cannot waive a double jeopardy defense on his client s behalf. Thereafter, the Jefferson Circuit Court relied on the Kentucky Supreme Court s ruling as a basis for denying Appellant s Motion. The question for our consideration is whether the Kentucky Supreme Court Opinion forms a proper basis for the circuit court s denial of Appellant s Motion for RCr 11.42 relief. We must answer this question in the affirmative. As noted above, in order to prevail -6-
on a claim of ineffective assistance, the movant must demonstrate that counsel made errors so serious that he was not performing as the counsel guaranteed by the Sixth Amendment, and that but for the errors the outcome of the proceeding would have been different. The Kentucky Supreme Court expressly found that counsel s waiver of the double jeopardy defense was efficacious, i.e., not erroneous. As a serious error is a necessary prerequisite to a finding of ineffective assistance and as no error can be found on this issue, Appellant s claim of ineffective assistance must necessarily fail. Arguendo, even if such an error were present, Appellant has offered no basis for concluding that the outcome of the proceeding would have been different but for the purported error. We are not persuaded by Appellant s contention that the instant argument is fundamentally different from the issue addressed on direct appeal. Finally, as Appellant s Motion was justiciable from the face of the record, no hearing was required. Accordingly, we find no error. For the foregoing reasons, we AFFIRM the Order of the Jefferson Circuit Court denying Appellant s Motion for RCr 11.42 relief. ALL CONCUR. -7-
BRIEFS FOR APPELLANT: Michael L. Goodwin Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky -8-