Joseph D. Cockroft v. Commonwealth of Kentucky ( 2022 )

RENDERED: JUNE 24, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0549-MR
JOSEPH D. COCKROFT APPELLANT
APPEAL FROM UNION CIRCUIT COURT
v. HONORABLE C. RENE’ WILLIAMS, JUDGE
ACTION NO. 15-CR-00132
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
DIXON, JUDGE: Joseph D. Cockroft appeals the denial of his RCr1 11.42 motion,
alleging ineffective assistance of counsel (IAC), and denial of his motion for an
evidentiary hearing, entered by the Union Circuit Court on April 6, 2021.
Applying the two-pronged performance and prejudice standard established in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
1
Kentucky Rules of Criminal Procedure.
the trial court denied Cockroft’s motion, finding that – based on the evidence in the
record – he failed to demonstrate either prong of Strickland’s requirements of
deficient assistance or that his case was prejudiced by trial counsel’s actions.
Following a careful review of the record, the briefs, and the law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Cockroft was indicted on three counts of flagrant nonsupport.2 The
minimum sentence for each offense is one year imprisonment, with a maximum of
five years. Cockroft also faced a fine of up to $10,000. The Commonwealth
offered Cockroft a plea deal of ten years in prison, probated for five, as well as an
agreement to pay his current child support obligations and make payments toward
his arrearage (totaling $481.71 a month). Cockroft, his counsel, and the trial court
accepted this deal, and an order on Cockroft’s guilty plea was entered with a
corresponding judgment.
Unfortunately, less than a year into his probation, Cockroft violated its
terms on multiple occasions, and his probation was revoked. Cockroft moved the
trial court for shock probation in order to complete a local chemical dependency
program. The trial court granted his motion and placed Cockroft on probation
again; however, Cockroft failed to report to either the program or his probation
officer. Consequently, his probation was revoked a second time. Following his
2
Kentucky Revised Statutes (KRS) 530.050, a Class D felony.
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reincarceration, Cockroft again moved the trial court for shock probation, but the
motion was denied.
Cockroft subsequently, pro se, moved the trial court for relief under
RCr 11.42, requesting assistance of counsel and an evidentiary hearing for his IAC
claims. The trial court appointed counsel, who supplemented his RCr 11.42
motion. After the matter was fully briefed, the trial court denied Cockroft an
evidentiary hearing and the requested relief. This appeal followed.
STANDARD OF REVIEW
As observed by the Supreme Court of Kentucky, when determining
whether a guilty plea was entered knowingly, voluntarily, and intelligently, trial
courts must consider the totality of the circumstances. Edmonds v.
Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006). “This inquiry is inherently fact-
sensitive” and is reviewed for clear error. Id.Concerning Cockroft’s IAC claims, as established in Bowling v.
Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002):
[t]he Strickland standard sets forth a two-prong test for
ineffective assistance of counsel: [f]irst, 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.
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[Strickland, 466 U.S. at 687, 104 S. Ct. at 2064]. 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.
(Emphasis added) (paragraph breaks omitted). 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. Herein, we need not determine whether counsel’s performance was
adequate on any or all the issues raised because Cockroft fails to demonstrate
prejudice resulting from counsel’s alleged 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. at 694, 104 S. Ct. at 2068. In short, one must
demonstrate 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, 104 S. Ct. at 2064. Fairness is
measured in terms of reliability. “The likelihood of a different result must be
3
“[A] court need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697, 104 S.
Ct. at 2052.
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substantial, not just conceivable.” Commonwealth v. Pridham, 394 S.W.3d 867,
876 (Ky. 2012) (quoting Harrington v. Ritcher, 562 U.S. 86, 100, 131 S. Ct. 770,
791, 178 L. Ed. 2d 624 (2011) (citing Strickland, 466 U.S. at 693, 104 S. Ct. at
2067)).
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. Conjecture that a different strategy might
have proved beneficial is also not sufficient. Baze [v.
Commonwealth, 23 S.W.3d 619 (Ky. 2000)]; Harper v.
Commonwealth, 978 S.W.2d 311 ([Ky.] 1998). As noted
by Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (en
banc): “The mere fact that other witnesses might have
been available or that other testimony might have been
elicited from those who testified is not a sufficient
ground to prove ineffectiveness of counsel.”
Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003), overruled on other
grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). “No
conclusion of prejudice . . . can be supported by mere speculation.” Jackson v.
Commonwealth, 20 S.W.3d 906, 908 (Ky. 2000) (citations omitted).
In the context of an IAC claim pertaining to a defendant entering a
guilty plea, Kentucky’s highest court has opined:
A showing that counsel’s assistance was
ineffective in enabling a defendant to intelligently weigh
his legal alternatives in deciding to plead guilty has two
components: (1) that counsel made errors so serious that
counsel’s performance fell outside the wide range of
professionally competent assistance; and (2) that the
deficient performance so seriously affected the
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outcome of the plea process that, but for the errors of
counsel, there is a reasonable probability that the
defendant would not have pleaded guilty, but would
have insisted on going to trial.
...
The trial court’s inquiry into allegations of ineffective
assistance of counsel requires the court to determine
whether counsel’s performance was below professional
standards and caused the defendant to lose what he
otherwise would probably have won and whether
counsel was so thoroughly ineffective that defeat was
snatched from the hands of probable victory. Because
[a] multitude of events occur in the course of a criminal
proceeding which might influence a defendant to plead
guilty or stand trial, the trial court must evaluate whether
errors by trial counsel significantly influenced the
defendant’s decision to plead guilty in a manner which
gives the trial court reason to doubt the voluntariness and
validity of the plea.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (internal quotation
marks and footnotes omitted) (emphasis added). The United States Supreme Court
has further observed:
In many guilty plea cases, the “prejudice” inquiry will
closely resemble the inquiry engaged in by courts
reviewing ineffective-assistance challenges to
convictions obtained through a trial. For example, where
the alleged error of counsel is a failure to investigate or
discover potentially exculpatory evidence, the
determination whether the error “prejudiced” the
defendant by causing him to plead guilty rather than go
to trial will depend on the likelihood that discovery of the
evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn,
will depend in large part on a prediction whether the
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evidence likely would have changed the outcome of a
trial.
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).
ANALYSIS
On appeal, Cockroft argues the trial court erred when it did not
conduct an evidentiary hearing or grant relief under RCr 11.42 for counsel’s failure
to (1) ensure proper plea colloquy was conducted and (2) conduct an appropriate
mitigation investigation. However, it is well-established that the effect of a guilty
plea is to waive all defenses except that the indictment charges no offense.
Quarles v. Commonwealth, 456 S.W.2d 693 (Ky. 1970); Commonwealth v.
Watkins, 398 S.W.2d 698 (Ky. 1966), cert. denied, Watkins v. Kentucky, 384 U.S.
965, 86 S. Ct. 1596, 16 L. Ed. 2d 677 (1966). RCr 11.42 does not authorize
criminal defendants to disregard a valid plea agreement. In the case herein, “since
appellant’s plea of guilty makes his allegation of ineffective assistance of counsel
unavailing, he is not entitled to a hearing.” Cox v. Commonwealth, 465 S.W.2d 76,
78 (Ky. 1971). Accordingly, we hold that because Cockroft’s plea was knowingly
and voluntarily entered, his IAC claim pertaining to his guilty plea was properly
dismissed.
We further note that trial counsel is not ineffective where he
negotiated a plea deal that his client willingly accepted but later regretted. Instead,
the defendant must show that rejecting the plea deal would have been rational
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under the circumstances. Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky.
2012). Cockroft has not done so. Furthermore, Cockroft admitted his guilt. Under
the plea agreement, Cockroft’s sentence was only two-thirds of the maximum
sentence and was probated for five years. Rejecting such a deal would not have
been rational, nor would it have been reasonable for counsel to advise otherwise
under these circumstances.
Moreover, not every single right that is waived must be specifically
listed by the trial court in its colloquy. Even issues concerning constitutional
rights, such as the right to be free from self-incrimination, may be waived if done
so knowingly and intelligently.
In Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1712, 23 L.
Ed. 2d 274 (1969), the United States Supreme Court cited Carnley v. Cochran, 369
U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70 (1962), in which it dealt with a
problem of waiver of the Sixth Amendment right to counsel, holding, “Presuming
waiver from a silent record is impermissible. The record must show, or there must
be an allegation and evidence which show, that an accused was offered counsel but
intelligently and understandingly rejected the offer. Anything less is not waiver.”
In its order, the trial court observed the following regarding the
colloquy surrounding Cockroft’s guilty plea:
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Court: “Have you reviewed with the Defendants the
nature of the charges filed against them, the possible
penalties they are facing and their constitutional rights?”
Mr. Sysol: “Yes Your Honor[.]”
Court: “Have you reviewed with them the fact that if
they enter a voluntary plea to any charge, they will waive
their constitutional rights?”
Mr. Sysol: “Yes Your Honor[.]”
Court: “Have they been able to assist in the preparation
of the defense of their case?”
Mr. Sysol: “They Have[.]”
Court: “Do you know of any reason why we should not
go forward with the acceptance of their pleas?”
Mr. Sysol: “No Your Honor[.]”
Granted Mr. Sysol was not standing next to the
Defendant [at] this time, but this Court is not aware of a
statute or rule that requires an attorney to stand right
beside a Defendant during a plea. A complete view of
the video shows Mr. Sysol walking back and forth
between the podiums where the Defendant[s] stood and
counsel table during the entire time of the pleas. It is this
Court’s common practice when one attorney represents
multiple Defendants that a “group” plea is entered in the
interest of judicial economy. The paperwork is reviewed
individually with each Defendant prior to the plea and
turned into the Court when they are ready to proceed.
Following the exchange with Mr. Sysol, the Defendants
were sworn in and the Court began the colloquy with
them. The court video also shows Mr. Sysol going back
and forth between the Bench and the Defendants
transferring papers and talking with the Defendant. . . .
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The Defendant answered the Court’s questions, including
the questions concerning the paperwork that was
submitted and signed by both he and Mr. Sysol. He was
asked specifically if he was satisfied with the advice he
had received from his attorney and he indicated he was.
Additionally, the motion to enter guilty plea signed by Cockroft specifically stated
on its first page in bold-faced type:
I further understand the Constitution guarantees to
me the following rights:
(a) The right not to testify against myself;
(b) The right to a speedy and public trial by jury at
which I would be represented by counsel and the
Commonwealth would have to prove my guilt beyond
a reasonable doubt;
(c) The right to confront and cross-examine all
witnesses called to testify against me;
(d) The right to produce any evidence, including
attendance of witnesses, in my favor; [and]
(e) The right to appeal my case to a higher court.
I understand that if I plead “GUILTY,” I waive these
rights.
Cockroft also signed the order on his guilty plea which contained this exact
language on its first page. Just as in Commonwealth v. Crawford, 789 S.W.2d 779,
780 (Ky. 1990), “[n]o cases are cited requiring a judge to read from the bench a
defendant’s rights to a defendant who has already waived those rights by written
waiver, has acknowledged his signature thereto, and has further acknowledged that
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he understood those rights.” Thus, waiver here was not implied by Cockroft’s
silence but was expressly addressed on multiple occasions.
Cockroft also contends the trial court erred in denying his request for
post-conviction relief without holding an evidentiary hearing. To this challenge,
we first must ask: When is an evidentiary hearing required? The Supreme Court
of Kentucky has held:
the trial judge shall determine whether the allegations in
the motion can be resolved on the face of the record, in
which event an evidentiary hearing is not required. A
hearing is required if there is a material issue of fact that
cannot be conclusively resolved, i.e., conclusively proved
or disproved, by an examination of the record. Stanford
v. Commonwealth, [854 S.W.2d 742, 743-44 (Ky. 1993)],
cert. denied, 510 U.S. 1049, 114 S. Ct. 703, 126 L. Ed.
2d 669 (1994); Lewis v. Commonwealth, [411 S.W.2d
321, 322 (Ky. 1967)]. The trial judge may not simply
disbelieve factual allegations in the absence of evidence
in the record refuting them. Drake v. United States, 439
F.2d 1319, 1320 (6th Cir. 1971).
Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). This is precisely
what occurred herein. Since all Cockroft’s allegations of error may be resolved by
a review of the record, as more specifically addressed herein, no evidentiary
hearing was required. Thus, the trial court did not err in denying same.
Cockroft also alleges his trial counsel failed to conduct a thorough,
complete, and reasonable investigation. The Court in Strickland discussed the
deference our Court must give trial counsel concerning their investigation, stating:
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strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support
the limitations on investigation. In other words, counsel
has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.
Strickland, 446 U.S. at 690-691, 104 S. Ct. at 2066. Following Strickland, the
Court further held that: “[i]n assessing counsel’s investigation, we must conduct
an objective review of their performance, measured for reasonableness under
prevailing professional norms, which includes a context-dependent consideration
of the challenged conduct as seen from counsel’s perspective at the time, (every
effort [must] be made to eliminate the distorting effects of hindsight).” Wiggins v.
Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 2536, 156 L. Ed. 2d 471 (2003)
(internal quotation marks and citation omitted).
In Kentucky, this deferential standard pertaining to counsel’s
investigation has more recently been described as:
Counsel’s performance is deficient when counsel
made errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the Sixth
Amendment. That being said, the proper inquiry when
assessing an ineffective assistance of counsel claim is
whether the counsel’s representation fell below an
objective standard of reasonableness. In this
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reasonableness analysis, we are directed to indulge a
strong presumption that counsel’s conduct falls
within the wide range of reasonable professional
assistance because, given the surrounding
circumstances, the challenged action might be
considered sound trial strategy. We employ this
presumption to prevent the harsh light of hindsight from
distorting counsel’s act or omission, making it appear
unreasonable.
Commonwealth v. Searight, 423 S.W.3d 226, 230 (Ky. 2014) (internal quotation
marks and footnotes omitted) (emphasis added).
Likewise, here, every benefit of the doubt must be given to trial
counsel’s investigation, which was objectively reasonable under the circumstances.
Moreover, Cockroft has failed to demonstrate that the so-called “sea of mitigation”
evidence4 would likely have impacted the outcome. Absent such a showing,
Cockroft cannot demonstrate prejudice.
Cockroft has failed to identify how a more thorough investigation
would have affected his plea. It is well-settled, “vague allegations, including those
of failure to investigate, do not warrant an evidentiary hearing and warrant
summary dismissal of the RCr 11.42 motion.” Mills v. Commonwealth, 170
S.W.3d 310, 330 (Ky. 2005), overruled on other grounds by Leonard, 279 S.W.3d
4Cockroft nebulously claims his mitigation includes the fact that he came to Kentucky to make
himself available to the child support office after finally having obtained an undescribed means
to pay down his obligation. He also mentions complications with his legal name – he is also
known as Joseph Holmes – but fails to describe how that is relevant or mitigating as he has an
extensive criminal history under each name. His further claims of mitigating evidence are even
more tangential.
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151. Accordingly, the trial court properly denied this claim without an evidentiary
hearing.
Simply put, Cockroft’s claims do not clear the high bar requiring
demonstration of prejudice as set forth in Strickland for the reasons discussed
herein. Thus, Cockroft was not entitled to the requested relief due to waiver of his
right to appeal, nor was he entitled to relief on the alleged merits. Finding no error,
we must affirm.
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Union Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Katelyn E. Price Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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