Malcolm Dickerson 193817 v. Commonwealth of Kentucky ( 2022 )


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  •                  RENDERED: DECEMBER 2, 2022; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2021-CA-1041-MR
    MALCOLM DICKERSON                                                     APPELLANT
    APPEAL FROM JEFFERSON CIRCUIT COURT
    v.               HONORABLE ERIC JOSEPH HANER, JUDGE
    ACTION NO. 15-CR-001394
    COMMONWEALTH OF KENTUCKY                                                 APPELLEE
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: CETRULO, COMBS, AND GOODWINE, JUDGES.
    CETRULO, JUDGE: Malcolm Dickerson appeals from an order of the Jefferson
    Circuit Court denying his Kentucky Rule of Criminal Procedure (RCr) 11.42
    motion for post-conviction relief. We affirm.
    I. Procedural History
    The underlying facts which led to Dickerson’s indictment are not
    germane to the issues in this appeal. Dickerson was indicted for assault in the first
    degree for shooting a person; possession of a handgun by a convicted felon;
    receiving stolen property (specifically, a firearm); three counts of wanton
    endangerment in the first degree for firing a weapon into a house multiple times;
    criminal mischief in the first degree; two counts of fleeing or evading police in the
    first degree; violation of a protective order; and being a first-degree persistent
    felony offender (PFO I).
    Dickerson and the Commonwealth reached a plea agreement, which
    called for dismissal of the violation of a protective order charge; one of the counts
    of fleeing or evading police; and the PFO I charge. Dickerson agreed to plead
    guilty to the remainder of the charges. The agreement, which Dickerson signed,
    specifically stated that the victim suffered serious physical injuries. The plea
    agreement recommended Dickerson receive an overall sentence of imprisonment
    of 20 years, ten of which would be attributable to the assault charge. The trial
    court sentenced Dickerson in accordance with the plea agreement.
    A few months later, Dickerson filed a pro se RCr 11.42 motion,
    alleging his counsel had been ineffective by: 1) not conducting an adequate
    investigation; and 2) not informing Dickerson that he would not be eligible for
    parole until he had served at least 85% of his ten-year sentence for first-degree
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    assault.1 In addition to the pro se filing, appointed counsel submitted a
    supplemental brief on behalf of Dickerson. After briefing concluded, the trial
    court denied Dickerson’s RCr 11.42 motion without holding a hearing. Dickerson
    then filed this appeal.
    II. Analysis
    A. Standard of Review
    As our Supreme Court has held:
    To successfully establish the invalidity of a guilty plea
    based upon the allegedly deficient performance of
    defense counsel, the movant must satisfy both prongs of
    the two-part test set forth in Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984)
    and restated by this Court in Bronk v. Commonwealth, 
    58 S.W.3d 482
    , 486-487 (Ky. 2001). The movant must
    demonstrate that: (1) defense counsel’s performance fell
    outside the wide range of professionally competent
    assistance; and that (2) a reasonable probability exists
    that, but for the deficient performance of counsel, the
    movant would not have pled guilty, but would have
    insisted on going to trial. In making that determination,
    the trial court must indulge the strong presumption that
    counsel’s conduct fell within the wide range of
    reasonable professional assistance.
    1
    Kentucky Revised Statute (KRS) 439.3401(1)(c) defines a violent offender as a person
    convicted of committing a Class B felony involving serious physical injury to the victim.
    Dickerson’s first-degree assault conviction satisfied that standard. KRS 439.3401(3)(a) provides
    that “[a] violent offender who has been convicted of a . . . Class B felony shall not be released on
    . . . parole until he has served at least eighty-five percent (85%) of the sentence imposed.” Thus,
    Dickerson was ineligible for parole until serving 85% of his ten-year assault sentence (i.e., 8.5
    years). By contrast, inmates who are not violent offenders, and who do not meet other
    exceptions, generally may become eligible for parole after serving 20% of their sentence. See
    501 Kentucky Administrative Regulations (KAR) 1:030 § 3(1)(e).
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    Commonwealth v. Rank, 
    494 S.W.3d 476
    , 481 (Ky. 2016). If the RCr 11.42
    motion “raises a material issue of fact that cannot be resolved on the face of the
    record, the trial court must grant a prompt hearing.” 
    Id.
    If, as here, the trial court resolves an RCr 11.42 motion without a
    hearing, “appellate review is limited to whether the motion on its face states
    grounds that are not conclusively refuted by the record and which, if true, would
    invalidate the conviction.” Haley v. Commonwealth, 
    586 S.W.3d 744
    , 750 (Ky.
    App. 2019) (internal quotation marks and citation omitted). Our examination of
    whether Dickerson has raised material questions which are not refuted by the
    record is hampered because the certified record before us contains no video or
    audio recordings of any proceedings, such as Dickerson’s guilty plea hearing. “[I]t
    is an appellant’s responsibility to ensure that the record contains all of the materials
    necessary for an appellate court to rule upon all the issues raised. . . . [W]e are
    required to assume that any portion of the record not supplied to us supports the
    decision of the trial court.” Clark v. Commonwealth, 
    223 S.W.3d 90
    , 102 (Ky.
    2007) (footnote and citations omitted).
    Finally, our analysis is not identical to that employed by the trial
    court, but our Supreme Court has held that “[i]f an appellate court is aware of a
    reason to affirm the lower court’s decision, it must do so, even if on different
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    grounds.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 
    434 S.W.3d 489
    , 496 (Ky. 2014).
    B. Counsel’s Alleged Failure to Investigate
    The gist of Dickerson’s first argument is that the record does not show
    that counsel adequately investigated two main issues: 1) whether the shooting
    victim suffered a serious physical injury; and 2) the possibility of a self-defense
    claim. The record does not contain a detailed recitation of the investigation of
    Dickerson’s counsel, but he nonetheless is not entitled to relief.
    The only specific action Dickerson alleges counsel failed to take was
    to interview the victim, a topic to which we shall return. Otherwise, Dickerson
    only offers conjecture that some sort of additional, undefined investigation might
    somehow have resulted in an acquittal. Left wholly unanswered is even a cursory
    explanation of how that result would have been possible with more investigation.
    Instead, “Appellant’s claims are nothing more than bold assertions
    without any factual basis. Such does not justify an evidentiary hearing pursuant to
    RCr 11.42.” Harper v. Commonwealth, 
    978 S.W.2d 311
    , 317 (Ky. 1998). We will
    not scour the record or attempt to flesh out underdeveloped arguments. See, e.g.,
    Prescott v. Commonwealth, 
    572 S.W.3d 913
    , 923 (Ky. App. 2019). In other
    words, “[m]ere speculation as to how other counsel might have performed either
    better or differently without any indication of what favorable facts would have
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    resulted is not sufficient. Conjecture that a different strategy might have proved
    beneficial is also not sufficient.” 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).
    Moreover, even on the merits, Dickerson is not entitled to relief.
    First, there is nothing in the record to cast doubt on whether the victim suffered a
    serious physical injury. Serious physical injury means “physical injury which
    creates a substantial risk of death, or which causes serious and prolonged
    disfigurement, prolonged impairment of health, or prolonged loss or impairment of
    the function of any bodily organ.” KRS 500.080(17).2
    We cannot interpret a statute in a manner which “defies common
    sense.” Matheney v. Commonwealth, 
    191 S.W.3d 599
    , 603 (Ky. 2006). Common
    sense and human experience would lead a reasonable person to conclude that
    getting shot in the chest – an area of the body containing many vital organs –
    creates a substantial risk of death.3
    2
    KRS 500.080 was recently amended, but those changes do not impact this case, so we quote the
    current version.
    3
    Dickerson contends in his brief that the victim was shot in the shoulder. By contrast, the
    victim’s hospital records submitted by the Commonwealth in response to Dickerson’s RCr 11.42
    motion explicitly state that the victim was shot in the chest.
    -6-
    Although not every gunshot injury is automatically deemed to be a
    serious physical injury, the Commonwealth provided the victim’s medical records
    to Dickerson’s counsel in discovery. The entirety of those medical records is not
    in the record before us. However, the one page which was provided indicates the
    victim was shot in the chest, required needle decompression in the field by EMS
    personnel, had a tube placed in his chest “emergently” in the emergency
    department, and was admitted to the ICU. Record at 168. Moreover, the
    Commonwealth notified Dickerson in discovery that it intended to offer the expert
    testimony of Dr. William Smock, a professor at the University of Louisville School
    of Medicine, opining unequivocally that the victim suffered a serious physical
    injury. Specifically, Dr. Smock sent an email to the Commonwealth stating:
    “Easy Assault 1, he [the victim] would have died without EMS and ER
    intervention.”
    Finally, the plea agreement – which Dickerson signed – specifically
    states that the shooting victim suffered a serious physical injury. The trial court’s
    judgment confirms that, at the guilty plea proceeding, Dickerson admitted he had
    committed first-degree assault – which statutorily requires the victim to suffer a
    serious physical injury. Furthermore, before accepting the plea, the court reviewed
    the charges and offer to ensure that Dickerson understood and voluntarily wished
    to plead guilty. See, e.g., RCr 8.08. In other words, the original trial court could
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    not have properly allowed Dickerson to plead guilty to first-degree assault, which
    statutorily requires the victim to have sustained a serious physical injury, if
    Dickerson refused to admit the victim’s injuries were serious.
    Dickerson castigates his counsel for allegedly not interviewing the
    victim. However, “the test for effectiveness is not whether counsel could have
    done more, . . . but rather whether counsel’s errors undermined the reliability of the
    trial.” Baze v. Commonwealth, 
    23 S.W.3d 619
    , 625 (Ky. 2000), overruled on other
    grounds by Leonard v. Commonwealth, 
    279 S.W.3d 151
     (Ky. 2009) (citations
    omitted). Dickerson has not demonstrated what would have been gleaned from
    interviewing the victim. In light of the evidence that the victim suffered a serious
    physical injury, as defined by statute, Dickerson has not shown that counsel’s
    allegedly insufficient investigation undermined the reliability of the proceedings.
    The same conclusion applies to Dickerson’s self-defense argument,
    which is even less developed than his serious physical injury argument. Indeed,
    Dickerson offers no explanation whatsoever as to how it would have been
    potentially wise for him to have relied on a self-defense theory and not pled guilty.
    He has produced no witness statements, police reports, or hospital records
    supporting this theory. We will not scour the record or attempt to flesh out
    underdeveloped arguments. Prescott, 
    572 S.W.3d at 923
    .
    -8-
    C. Parole Eligibility
    Finally, Dickerson argues his counsel was ineffective in not telling
    him that the terms of the plea agreement would result in being classified as a
    violent offender and, as such, he would not be eligible for parole until serving 85%
    of his ten-year sentence for assault. It is accurate that counsel may be deemed
    ineffective for not conveying to a defendant the consequences of a guilty plea on
    his or her parole eligibility. See, e.g., Stiger v. Commonwealth, 
    381 S.W.3d 230
    ,
    236 (Ky. 2012).
    However, as our Supreme Court has explained, to show ineffective
    assistance of counsel in this context, Dickerson “must allege facts that, if proven,
    would support a conclusion that the decision to reject the plea bargain and go to
    trial would have been rational, e.g., valid defenses, a pending suppression motion
    that could undermine the prosecution’s case, or the realistic potential for a lower
    sentence.” Id. at 237. Dickerson has not made that showing.
    Dickerson cites to nothing to show there was a realistic possibility he
    could have received a lower sentence. Indeed, as a Class B felony, ten years is the
    minimum sentence for assault in the first degree.
    If Dickerson had proceeded to trial and been convicted of assault in
    the first degree and found to be a PFO I, he would have received at least 20 years
    of imprisonment. KRS 532.080(6)(a). Upon conviction of assault in the first
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    degree and being a PFO I, Dickerson would not have been eligible for parole until
    he served at least 17 years (20 years x 0.85 = 17 years). KRS 532.080(7) provides
    “[a] violent offender who is found to be a persistent felony offender in the first
    degree shall not be eligible for parole except as provided in KRS 439.3401.” KRS
    439.3401(3)(a) provides “[a] violent offender who has been convicted of a . . .
    Class B felony shall not be released on probation or parole until he has served at
    least eighty-five percent (85%) of the sentence imposed.”
    In short, by rejecting the plea and proceeding to trial, Dickerson
    would have actually delayed his parole eligibility date. To prevail, an appellant
    must convince the court that rejecting the plea agreement would have occurred but
    for counsel’s errors and would have been “rational under the circumstances.”
    Stiger, 381 S.W.3d at 237. Dickerson has not demonstrated that it would have
    been rational to reject the plea agreement in this instance.
    For the foregoing reasons, the order of the Jefferson Circuit Court is
    affirmed.
    ALL CONCUR.
    -10-
    BRIEF FOR APPELLANT:     BRIEF FOR APPELLEE:
    Kara Stinson Lewis       Daniel Cameron
    La Grange, Kentucky      Attorney General of Kentucky
    Stephanie L. McKeehan
    Assistant Attorney General
    Frankfort, Kentucky
    -11-
    

Document Info

Docket Number: 2021 CA 001041

Filed Date: 12/1/2022

Precedential Status: Precedential

Modified Date: 12/9/2022