Steven Hill v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 27, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0442-MR AND 2020-CA-0444-MR
STEVEN HILL APPELLANT
APPEAL FROM HARRISON CIRCUIT COURT
v. HONORABLE JAY B. DELANEY, JUDGE
ACTION NOS. 14-CR-00090 & 14-CR-00091
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
MAZE, JUDGE: Steven Hill brings these consolidated appeals from an order of
the Harrison Circuit Court denying his motions to vacate his convictions pursuant
to RCr1 11.42. He alleges that his trial counsel provided ineffective assistance
1
Kentucky Rules of Criminal Procedure.
prior to his entry of a guilty plea. We agree with the trial court that Hill has failed
to establish either deficient performance by counsel or prejudice as a result.
Hence, we affirm.
On October 7, 2014, a Harrison County grand jury indicted Hill on
one count of rape in the first degree (victim less than twelve years old), three
counts of sexual abuse in the first degree (victim less than twelve years old), and
being a persistent felony offender in the first degree (PFO I). The grand jury
separately indicted Hill for failure to comply with sex-offender registration (first
offense) and an additional count of PFO I. Subsequently, Hill entered a guilty plea
to the attempted first-degree rape, sexual abuse, and sex-offender registration
counts. The PFO I counts were dismissed. Pursuant to the Commonwealth’s
recommendation, the trial court sentenced Hill to a total of eighteen years’
imprisonment.2 That sentence was subject to the 85% parole eligibility
requirement, as set out in KRS3 439.3401.
On April 4, 2018, Hill filed a motion to vacate his convictions
pursuant to RCr 11.42. The trial court conducted an evidentiary hearing at which
2
The trial court sentenced Hill to eighteen years on the attempted rape count, and ten years on
each of the sexual abuse counts, with all counts to be served concurrently. In the separate
indictment, the trial court sentenced Hill to five years, also to be served concurrently with the
other sentences. However, the court directed that these sentences be served consecutively to any
sentence Hill received in the state of Florida.
3
Kentucky Revised Statutes.
-2-
his trial counsel, Jennifer Fransen, testified. Following the hearing, the trial court
denied the motion, concluding Hill failed to establish that Fransen’s performance
was deficient or that he was unfairly prejudiced as a result. Hill now appeals from
this order.4 Additional facts will be set forth below as necessary.
In order to prevail on an ineffective assistance of counsel claim, a
movant must show that his counsel’s performance was deficient and that, but for
the deficiency, the outcome of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
The standard for assessing counsel’s performance is whether the alleged acts or
omissions were outside the wide range of prevailing professional norms based on
an objective standard of reasonableness. Id. at 688-89, 104 S. Ct. at 2065. A court
must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Id. The defendant bears the burden of
identifying specific acts or omissions alleged to constitute deficient performance.
Id. at 690, 104 S. Ct. at 2066. Furthermore, “the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Parrish v. Commonwealth, 272 S.W.3d 161, 168
4
Hill filed his RCr 11.42 motions to vacate the convictions under both indictments. He likewise
filed separate notices of appeal from the trial court’s order denying the motions in both cases.
This Court directed that his appeals be heard together.
-3-
(Ky. 2008) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065) (internal
quotation marks omitted).
In cases involving a guilty plea, the United States Supreme Court has
stated that the traditional test is “whether the plea represents a voluntary and
intelligent choice among the alternative courses of action open to the defendant.”
Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 (1985)
(quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed.
2d 162 (1970)). Consequently, a defendant must show that “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.” Id. at 59, 106 S. Ct. at 370. See also
Taylor v. Commonwealth, 724 S.W.2d 223 (Ky. App. 1986). When an evidentiary
hearing is held in an RCr 11.42 proceeding, RCr 11.42(6) requires the trial court to
make findings on the material issues of fact, which we review under a clearly
erroneous standard. CR5 52.01; Haight v. Commonwealth, 41 S.W.3d 436, 442
(Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279
S.W.3d 151 (Ky. 2009).
Hill first argues that he received ineffective assistance of counsel
when his trial counsel failed to file a motion to suppress the statement he gave to
5
Kentucky Rules of Civil Procedure.
-4-
police. The interview was initially non-custodial as Hill voluntarily appeared at
the Harrison County Sherriff’s Office. The officers advised Hill that he was free to
leave but did not advise him of his Miranda6 rights. But after the interview was
completed, Hill was taken into custody on an out-of-state warrant involving an
unrelated matter. Hill asserts that his counsel should have sought to suppress the
statements he made to the police.
Fransen testified that she prepared a suppression motion but decided
not to file it after receiving the plea offer from the Commonwealth. Fransen noted
that Hill gave his statement before being taken into custody. Consequently, she
had doubts whether the motion would be successful. Fransen also testified that the
Commonwealth’s case was based on other evidence which would still be
admissible even if Hill’s statement was suppressed. Under the circumstances, we
agree with the trial court that counsel’s decision not to file the suppression motion
amounted to reasonable trial strategy.
Next, Hill alleges that his trial counsel was ineffective for failing to
obtain a competency evaluation. KRS 504.100(1) authorizes a trial court to
appoint a psychologist or psychiatrist to examine and report on a defendant’s
mental condition when “the court has reasonable grounds to believe the defendant
6
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
-5-
is incompetent to stand trial[.]” See also RCr 8.06. Hill presents no evidence that
either the trial court or trial counsel had any reasonable grounds to believe he was
not competent to stand trial.
Hill alleges that he wrote a letter to Fransen concerning a learning
disability and other mental issues caused by head injuries he suffered as a child.
Fransen testified that Hill asked for a competency evaluation but did not recall him
saying anything about the prior head injuries. She also testified that Hill appeared
to fully understand the nature of the charges against him and assisted in the
defense. Fransen further testified that she believed Hill’s request for a competency
evaluation was merely a “stall tactic,” as he eventually withdrew the request and
became anxious to resolve the case as quickly as possible. We conclude that Hill
failed to show that a motion for a competency evaluation would have been
warranted. Therefore, we agree with the trial court that counsel was not deficient
in failing to request a competency evaluation.
Finally, Hill alleges that his trial counsel failed to adequately
investigate the case against him and the available defenses. He asserts that counsel
failed to investigate whether there was a sufficient factual basis for all of the
charges in the indictments. He also contends that counsel was deficient for failing
to file a bill of particulars to obtain this information from the Commonwealth.
-6-
Finally, he contends that counsel decided to accept the Commonwealth’s guilty-
plea offer prior to interviewing any of the witnesses against him.
It is well-established that trial counsel must undertake reasonable
investigation of facts and law which support the defense of a client. Wiggins v.
Smith, 539 U.S. 510, 521-22, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003).
However, “[a] reasonable investigation is not an investigation that the best criminal
defense lawyer in the world, blessed not only with unlimited time and resources,
but also with the benefit of hindsight, would conduct.” Haight, 41 S.W.3d at 446.
The focus of the inquiry must be on whether trial counsel’s decision not to pursue
evidence or defenses was objectively reasonable under all the circumstances.
Wiggins, 539 U.S. at 523, 123 S. Ct. at 2536. In other words, the question is
“whether the known evidence would lead a reasonable attorney to investigate
further.” Id. at 527, 123 S. Ct. at 2538.
As the trial court noted, there was substantial evidence supporting the
charges against Hill. Hill provides no support for his bare allegation that further
investigation would have led to the discovery of evidence which would have called
that evidence into question. Likewise, he offers no reason to support his allegation
that the indictment was “duplicitous.” Therefore, we agree with the trial court that
Hill failed to meet his burden that counsel’s alleged failure to investigate
prejudiced his decision to accept the guilty plea.
-7-
Accordingly, we affirm the order of the Harrison Circuit Court
denying Hill’s motions to vacate his convictions pursuant to RCr 11.42.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Hill, pro se Daniel Cameron
Fredonia, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
-8-