Christopher Alexander Pope v. Commonwealth of Kentucky ( 2023 )

RENDERED: SEPTEMBER 8, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1093-MR
CHRISTOPHER ALEXANDER POPE APPELLANT
APPEAL FROM LINCOLN CIRCUIT COURT
v. HONORABLE TERESA WHITAKER, JUDGE
ACTION NO. 18-CR-00152
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.
ECKERLE, JUDGE: Appellant, Christopher Alexander Pope (Pope), appeals the
denial of his post-conviction, RCr1 11.42 motion. Finding no error, we affirm.
1
Kentucky Rules of Criminal Procedure.
BACKGROUND
A jury convicted Pope of trafficking in a controlled substance (heroin)
in the first degree in Lincoln County, Kentucky, and he pled guilty to being a first-
degree, persistent felony offender. The Trial Court sentenced him to a jury-
recommended, 20-year sentence of imprisonment. On direct appeal, the Kentucky
Supreme Court affirmed his conviction, describing the facts as follows:
Pope was indicted by a Lincoln County grand jury
for trafficking in a controlled substance and being a first-
degree PFO. The charges stemmed from Pope selling
heroin to a confidential informant during a controlled
buy. The controlled buy was arranged by deputies from
the Boyle County Sheriff’s Department who apparently
anticipated that it would occur in Boyle County.
However, when the buy was set in motion Pope told the
confidential informant that he would not make the sale in
Boyle County. Instead Pope instructed the informant to
meet him at a fast-food restaurant in adjoining Lincoln
County. The Boyle County deputies followed the
informant to that location and surveilled the drug
transaction. Notably, the deputies received prior verbal
approval from the Lincoln County Sheriff’s Department
for their investigative activities in Lincoln County.
Pope communicated with the confidential
informant via Snapchat. At one point, Pope instructed
the informant to leave his vehicle unlocked when he went
into the restaurant. When the informant met with Pope
inside the restaurant, Pope told him that the heroin had
already been placed in the glove compartment of his
vehicle. The informant then paid Pope and returned to
Boyle County.
The Boyle County deputies later testified that they
surveilled the entire transaction. One officer observed
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Pope arrive, approach the passenger door of the
informant’s vehicle, and then enter the restaurant where
he had a discussion with the informant. Afterward, the
officers met the confidential informant in Boyle County
where he gave them the purchased heroin.
Following the Lincoln County grand jury’s
indictment of Pope, a Boyle County officer arrested him
in Boyle County. As noted, a Lincoln County jury found
pope guilty of trafficking in a controlled substance, first
degree and, following his guilty plea to the charge of
PFO I, recommended a sentence of twenty years. The
trial court sentenced Pope accordingly and entered
judgment.
Pope v. Commonwealth, 629 S.W.3d 5, 7 (Ky. 2021).
Pope then filed a post-conviction motion pursuant to RCr 11.42. Pope
raised numerous allegations of ineffective assistance of counsel both at his trial and
on appeal. He requested an evidentiary hearing. After reviewing responsive
pleadings, the Lincoln Circuit Court denied the request for an evidentiary hearing
and denied Pope’s request for post-conviction relief. Pope timely appealed.
ANALYSIS
Pope raises multiple issues relating both to his trial counsel and his
appellate counsel. We begin our analysis with the standard of review before
addressing his allegations of error.
I. Standard of Review.
Ineffective assistance of counsel claims are evaluated under the
standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
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L. Ed. 2d 674 (1984), and as adopted in Gall v. Commonwealth, 702 S.W.2d 37(Ky. 1985). Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016). The
Strickland test for ineffective assistance is a two-prong test: counsel’s
performance was deficient; and the deficient performance prejudiced a defendant.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Deficient performance is proven
when “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment [to the United States
Constitution].” Id. An Appellate Court reviews counsel’s performance under an
objective standard of reasonableness and “indulge[s] a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance[.]” Id. at 689, 104 S. Ct. at 2065. “We must analyze counsel’s overall
performance and the totality of circumstances therein in order to determine if the
challenged conduct can overcome the strong presumption that counsel’s
performance was reasonable.” McGorman, 489 S.W.3d at 736 (citation omitted).
Under the prejudice prong, “A defendant is prejudiced by counsel’s
deficient performance when the ‘errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is unreliable.’” Commonwealth v. Searight, 423
S.W.3d 226, 230 (Ky. 2014) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at
2064). To prove prejudice, there must be a showing of a reasonable probability of
a different outcome had counsel’s unprofessional errors not occurred. Searight,
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423 S.W.3d at 230. “This reasonable probability is a probability ‘sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694,
104 S. Ct. at 2067).
Both prongs must be met for relief to be afforded. Searight, 423
S.W.3d at 231. Thus, a defendant must show both deficient performance of counsel
and prejudice.
A claim of ineffective assistance of appellate counsel “premised upon
appellate counsel’s alleged failure to raise a particular issue on direct appeal [is]
cognizable in Kentucky.” Commonwealth v. Pollini, 437 S.W.3d 144, 147 (Ky.
2014) (citing Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010)). To succeed
on such a claim, a defendant must show that “counsel’s performance was deficient,
overcoming a strong presumption that appellate counsel’s choice of issues to
present to the appellate court was a reasonable exercise of appellate strategy.”
Hollon, 334 S.W.3d at 436. “The omitted issue must be ‘clearly stronger’ than
those presented for the presumption of effective assistance to be overcome.”
Pollini, 437 S.W.3d at 149. A defendant must also show that there was resulting
prejudice, which “requires a showing that absent counsel’s deficient performance
there is a reasonable probability that the appeal would have succeeded.” Hollon,
334 S.W.3d at 437.
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When a Trial Court does not hold an evidentiary hearing on an RCr
11.42 motion, “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) (quoting Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)).
“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.”
Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citing 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); and Lewis, 411 S.W.2d at 322). See also
RCr 11.42(5).
We review de novo a lower court’s ruling on counsel’s performance
and potential deficiencies. Pollini, 437 S.W.3d at 149 (citing Brown v.
Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008)). Accordingly, no deference to
the Trial Court is afforded.
II. Alleged, Ineffective Assistance of Counsel During Pretrial Motions
and Direct Appeal
We first address Pope’s arguments that his trial counsel and appellate
counsel rendered ineffective assistance. Both claims relate to a pretrial motion to
suppress evidence or alternatively to dismiss the indictment. We review both
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together as our analysis and the underlying substantive law are similar, though
through different lenses.
Regarding the pretrial motion, Pope’s trial counsel claimed that the
Boyle County Sheriff’s Deputies did not have authority to arrest in Lincoln
County; thus, he contended that they exceeded their authority under KRS2
431.007(1)3 by conducting an investigation in Lincoln County. The resulting
evidence obtained during the investigation in Lincoln County, trial counsel
claimed, should be suppressed. Pope admits that the issues raised in the pretrial
motion were denied by the Trial Court, whose decision was ultimately affirmed by
the Kentucky Supreme Court, albeit for different reasons. Pope claims his counsel
erroneously cited to and argued KRS 431.007 to claim Boyle County Sheriff’s
Deputies had no authority to investigate drug activity in Lincoln County. Pope
2
Kentucky Revised Statutes.
3
That Section delineates the arrest powers of peace officers as such:
A peace officer certified pursuant to KRS 15.380 to 15.404, who is
directly employed as a police officer by a Kentucky city, county,
or urban-county government and whose department meets the
requirements of KRS 15.440 and a sheriff, or deputy sheriff who
has been certified pursuant to KRS 15.380 to 15.404, who is
officially requested by a law enforcement agency in another county
in Kentucky to assist in any matter within the jurisdiction of the
requesting agency shall possess, while responding to and for the
duration of the matter for which the request was made, the same
powers of arrest in the requesting county as he possesses in the
county in which he is a police officer.
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now claims his counsel should have cited to Churchwell v. Commonwealth, 843
S.W.2d 336 (Ky. App. 1992), a case finding that a park ranger was operating
outside of his jurisdictional authority when conducting an investigatory stop
multiple miles outside of his jurisdictional parameters.
The Commonwealth ostensibly concedes trial counsel’s performance
“was deficient in making an argument without legal basis prior to trial. Trial
counsel took a chance and made a novel argument.” Appellee’s Brief at 7.
Nonetheless, the Commonwealth notes that Pope’s ineffective assistance of
counsel claim cannot succeed because he has failed to show any resulting
prejudice. We agree for reasons shown below.4
Additionally, Pope argues that his appellate counsel rendered
ineffective assistance by failing to raise a winning argument on appeal. His
argument follows two lines. First, Pope claims that his counsel should have raised
Churchwell on appeal. Second, Pope claims his counsel erroneously waited until a
petition for rehearing to argue that Fisher v. Commonwealth, 506 S.W.3d 329 (Ky.
App. 2016), and KRS 65.240 applied to his suppression issue.
4
While we do not need to decide whether counsel’s performance was deficient, we would be
hard-pressed to conclude the filing of the motion in this case constituted deficient performance,
as counsel routinely push legal and/or factual boundaries when zealously advocating for clients.
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Regarding both trial and appellate counsel’s performance, we find no
deficiency with failing to cite to and argue Churchwell. That case concerned a
park ranger stopping a vehicle some four miles outside of his jurisdictional
authority granted by KRS 148.056.5 843 S.W.2d at 339. The park ranger was not
in hot pursuit, nor were there any exigent circumstances. Id. at 339-40.
Accordingly, having no authority to conduct an investigatory stop, the evidence
subsequently seized was fruit of the poisonous tree. Id. at 340.
No such issues arise here. As the Kentucky Supreme Court held on
Pope’s direct appeal, the Boyle County Sheriff’s Deputies were acting under
authority granted pursuant to KRS 218A.240(1). Pope, 629 S.W.3d at 9-12 (“their
investigatory activity fits squarely within the language of KRS 218A.240(1)”).
5
That statute provides:
(1) The commissioner of parks, in his discretion, may employ and commission
park rangers as the commissioner deems necessary to secure the parks and
property of the Department of Parks and to maintain law and order and such
employees, when so commissioned, shall have all of the powers of peace
officers and shall have on all parks property and on public highways
transversing such property in all parts of the state the same powers with
respect to criminal matters and enforcement of the laws relating thereto as
sheriffs, constables granted peace officer powers, and police officers in their
respective jurisdictions, and shall possess all the immunities and matters of
defense now available or hereafter made available to sheriffs and police
officers in any suit brought against them in consequence of acts done in the
course of their employment.
(Emphasis added.)
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Churchwell is wholly inapplicable, and Pope suffered no prejudice by his trial
counsel not citing to it.
Moreover, Pope has failed to present even a claim that any prejudice
resulted from his trial counsel’s performance. Pope summarily states in his brief,
“Appellant suffered prejudice due to these inexcusable errors which adversely
effected his defense in the pretrial phase.”6 This summary conclusion does not
constitute an argument, nor does it make any causal connection to the prejudice
discussed in Strickland. Our case law is legion with pretrial suppression motions
that failed both at trial and on appeal, and we will not hold that pressing ultimately
losing claims at trial and on appeal constitutes de facto prejudice. Likewise, we
cannot discern any prejudice, even under Strickland, that resulted from counsel’s
failed motion to suppress and/or dismiss for lack of jurisdiction. The motion did
not require Pope to disclose any information that could be used against him at trial;
the Commonwealth did not gain any advantage through the motion; and the result
of losing the motion only placed Pope in the exact same position he would have
been in had he not made the motion at all.
Additionally, we find neither deficient performance nor prejudice
resulted from appellate counsel’s performance. To prevail on an ineffective
6
This quote is from the Appellant’s Brief. Pope omitted page numbers in his brief; thus we
provide no pinpoint citation.
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assistance of appellate counsel claim, a defendant must first show deficient
performance by demonstrating that counsel omitted an issue, and the “omitted
issue must be ‘clearly stronger’ than those presented for the presumption of
effective assistance to be overcome.” Pollini, 437 S.W.3d at 148-49 (citing Hollon
v. Commonwealth, 334 S.W.3d 431 (Ky. 2010)). Second, a defendant must show
prejudice, “which . . . requires a showing that absent counsel’s deficient
performance there is a reasonable probability that the appeal would have
succeeded.” Pollini, 437 S.W.3d at 149 (quoting Hollon, 334 S.W.3d at 437).
Pope does not succeed on either prong. On the first prong, even if his
appellate counsel did not cite to Churchwell, counsel nonetheless raised the
jurisdictional argument, and the Kentucky Supreme Court fully considered the
same and rejected it. Had counsel cited to Churchwell, the outcome in the instant
case would have been the same given that the Boyle County Sheriff’s Deputies had
statutory authority to conduct their investigation in Lincoln County. On the second
prong, there is no reasonable probability that citing to Churchwell would have
changed the outcome, as that case was wholly inapplicable to the instant case.
Likewise, to the extent Pope is arguing that his appellate counsel was
ineffective by raising Fisher, 506 S.W.3d 329, and KRS 65.240 for the first time in
his petition for rehearing, we find that Pope still fails to demonstrate ineffective
assistance of appellate counsel. There was nothing improper about raising those
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claims in a petition for rehearing, as Pope’s appellate counsel was arguing that the
not-yet-final, to-be-published opinion would lead to a misleading application of the
law under the instant facts, which is an argument that the Supreme Court could
rightly consider. Indeed, it might have been ineffective assistance not to raise the
issue. Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (“When the facts reveal a
fundamental basis for decision not presented by the parties, it is our duty to
address the issue to avoid a misleading application of the law.”) (emphasis added).
Likewise, there was no resulting prejudice. The Kentucky Supreme
Court considered and rejected Pope’s claims by denying the petition for rehearing.
Indeed, given that the Boyle County Sheriff’s Deputies had jurisdictional authority
pursuant to KRS 218A.240(1), neither Fisher nor KRS 65.240 would operate to
limit that authority. Accordingly, Pope has not shown ineffective assistance of
counsel with either his trial counsel or his appellate counsel on this issue, and the
Trial Court properly denied his motion.
III. Alleged Ineffective Assistance of Counsel During Plea Negotiations
Pope next alleges that his trial counsel rendered deficient performance
that prejudiced him during plea negotiations. Specifically, Pope claims that his
counsel should have advised him that he could have pursued a conditional plea
offer. Pope notes that the Commonwealth offered a plea package that included a
recommendation of imprisonment for nine years, dismissal of the PFO charge, and
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parole eligibility at 50% of time served. However, the offer was only valid if Pope
entered an unconditional guilty plea. Pope claims that his counsel advised him to
reject the offer due to an ultimately mistaken belief that the suppression and
jurisdictional issue was strong on appeal. Pope claims that his counsel never
advised him that he could enter a conditional plea, locking in a lower sentence than
he obtained at trial, while awaiting the outcome of his suppression and
jurisdictional claim on appeal. Pope claims his counsel should have provided that
advice.
The Commonwealth responds that Pope was not captain of his own
ship on the conditional plea offer. A conditional plea requires the approval of both
the Commonwealth and the Trial Court. RCr 8.09. It is noteworthy that no
conditional plea offer was made in the instant case. The Commonwealth further
replied below that it would not have made a conditional plea offer with the same
terms as the unconditional plea offer. If it had extended a conditional plea offer,
the Commonwealth would not have dismissed the persistent felony offender
charge. The Trial Court rejected Pope’s claim, noting that at best Pope would have
received an increased penalty, and that it was “mere speculation” as to whether the
Trial Court would have accepted a conditional plea at all.
We find no error with the Trial Court’s conclusion. Pope claims that
he would have entered a conditional plea pursuant to the same terms as the
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unconditional plea, which included dismissal of the persistent felony offender
charge. But that offer was never on the table. “The process of arriving at a guilty
plea requires give and take between the Commonwealth and the defendant, and at
some point, an agreement may be reached.” Commonwealth v. Corey, 826 S.W.2d
319, 320-21 (Ky. 1992). In other words, Pope had no inchoate ability to create a
conditional plea offer. And the Trial Court might not have accepted such an offer
even if Pope had the ability to operate unilaterally.
The record thus refutes Pope’s allegation of ineffective assistance of
counsel. Accordingly, we affirm the Trial Court on this point.
IV. Alleged Ineffective Assistance of Counsel During Discovery
Pope next claims that he suffered ineffective assistance of counsel as
it relates to certain, photographic evidence of Snapchat messages that were
introduced at trial and as it relates to the chain of custody of the drugs that were
seized. Regarding the Snapchat messages, the confidential informant took pictures
of the Snapchat messages he was sending and receiving with Pope during the drug
buy process. Prior to trial, the Commonwealth turned over copies of those photos
that were less than clear. After the trial began, the Commonwealth received clearer
photos and disclosed them to Pope’s counsel, who immediately moved to dismiss
the case for prosecutorial misconduct. Counsel also noted that the clearer photos
now showed one additional word, which indicated that Pope told the confidential
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informant to leave the car “unlock[ed].” Pope’s counsel alternatively requested a
multiple-day continuance. The Trial Court granted less than an hour continuance
and overruled the motion to dismiss, finding no prosecutorial misconduct and
opining that counsel should have requested clearer copies during the discovery
process.
Regarding his ineffective assistance of counsel claim on this issue, the
Trial Court rejected any resulting prejudice under Strickland, noting that the
clearer photos in no way “gutted his defense” or “prevented him from making an
informed decision as to trial strategy.” On appeal, Pope continues to make
summary and conclusory allegations that he was prejudiced by his counsel’s
allegedly deficient performance on this issue.
Having reviewed the record, we find no error with the Trial Court’s
ruling on this issue. Counsel effectively and defensively utilized the Snapchat
messages by pointing out that they do not contain any request to purchase drugs.
Counsel also challenged the confidential informant’s veracity on the witness stand,
noting that he was being paid and was a convicted felon. Counsel also highlighted
the confidential informant’s inability to recall all of the events. Moreover, even if
the clearer version shows the word “unlock,” Pope cannot show the manner in
which that additional word thwarted his defense. Strickland requires a defendant
to show a “reasonable probability that, but for counsel’s unprofessional errors, the
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result of the proceeding would have been different.” Koteras v. Commonwealth,
589 S.W.3d 534, 541 (Ky. 2018) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at
2068). That standard was not met here. If counsel knew about the word “unlock”
before trial, he would have exploited the same weaknesses in the Commonwealth’s
evidence that he did at the trial, and those arguments have repeatedly proven
unsuccessful.
Pope also claims his defense counsel rendered ineffective assistance
of counsel because he did not, pre-trial, interview the lab technician who received
and tested the drugs. Pope insinuates that had his counsel performed such an
interview, he would have had a better argument that there was some problem with
the chain of custody of the drugs. Again, this summary argument without
elaboration demonstrates neither deficient performance nor prejudice under
Strickland, and the Trial Court was correct to reject the same.
V. Alleged Ineffective Assistance of Counsel in Cross-Examination
Pope next argues that his counsel’s cross-examination of Deputy
Abbott constituted ineffective assistance of counsel. Specifically, Pope claims his
counsel should have questioned Deputy Abbott’s inconsistencies about his
surveillance of the drug transfer and Deputy Abbott’s inconsistencies about his
search of the confidential informant’s vehicle before, during, and after the
transaction. Pope claims that his trial counsel was ineffective because he did not
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“punch holes” in the evidence showing that the confidential informant might have
acquired the heroin from another source either before, during, or after the meeting
with Pope.
We have reviewed the trial and agree with the Trial Court that
counsel’s performance did not constitute ineffective assistance of counsel. At the
trial, counsel questioned the confidential informant and Deputy Abbott about
inconsistencies and gaps in the testimony, recordings, and Snapchat messages.
Specifically, evidence was introduced that Deputy Abbott may have only searched
the confidential informant’s person, not his vehicle, and Deputy Abbott did not
always have eyes on the confidential informant or his vehicle. The confidential
informant stopped at a gas station to get Gatorade and cigarettes, and Pope’s
counsel highlighted this fact on cross-examination of Deputy Abbott, who admitted
that he has informed confidential informants not to make such stops. Counsel also
succeeded in having Deputy Abbott concede that confidential informants “have a
mind of their own,” and that it is possible that someone other than the defendant
could have gotten into the car during a pit stop.
Under Strickland, Pope must show that trial counsel’s performance
was deficient, and that that there is a reasonable probability that the result of the
proceeding would have been different absent that deficiency. Koteras, 589 S.W.3d
at 541. Here, Pope’s counsel’s questioning succeeded in exposing the weaknesses
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in the Commonwealth’s case. It cannot be said that there is a reasonable
probability in a different outcome. Accordingly, we affirm the Trial Court’s order
on this issue.
VI. Alleged Ineffective Assistance of Counsel During Penalty Phase
Pope next alleges that his counsel rendered ineffective assistance
during the penalty phase when counsel “recommended” that Pope testify. Pope
had not testified during the guilt phase of his trial, but after the jury convicted him
of the underlying offense, Pope entered a guilty plea to being a first-degree
persistent felony offender and proceeded to the penalty phase of his trial. At the
presentation of evidence during the Truth-In-Sentencing phase, the Commonwealth
first read into the record all of Pope’s prior convictions, including five felonies and
three misdemeanors, most of which were drug related.
Pope then elected to testify, attempting to mitigate his actions by
explaining his drug addiction. The Commonwealth, on cross-examination, asked if
Pope was aware of the deadly danger of fentanyl, which laced the heroin he had
just been convicted of trafficking. The Commonwealth further asked if Pope had
been incarcerated previously for trafficking in drugs and for possessing a gun
while being a convicted felon. On the latter question, Pope disclaimed possession
of the firearm, though he admitted to pleading guilty to the charge. The
Commonwealth followed up with additional questions regarding the firearm
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possession charge, as Pope had previously pled guilty to charges relating to the
same. During closing, Pope’s argument that he should get some credit for pleading
guilty to the first-degree persistent felony offender charge was rebuffed in part by
the Commonwealth’s argument that Pope would not really take ownership of his
past gun crime.
During jury deliberations, the jury asked to return to the courtroom
and review the list of prior convictions. The Trial Court had the list re-read to the
jury in open court. The jury then deliberated more and returned with a
recommendation of the maximum penalty.
Pope claims his counsel’s performance was deficient by
recommending that he testify about his drug addiction. Pope claims his attorney
misadvised him that the Commonwealth could only read his convictions into the
record, not question him about them. Pope claims his attorney should have
introduced evidence of Pope’s drug addiction through Pope’s grandfather or
girlfriend.
As there was no evidentiary hearing, we will assume it true that
Pope’s counsel recommended that Pope testify and misadvised Pope regarding the
scope of the Commonwealth’s questions. Pope claims this alleged deficiency
resulted in prejudice because he received the maximum sentence.
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The Trial Court found no ineffective assistance on this issue. It noted
that there was no evidence to conclude that the sole reason he received the
maximum sentence was Pope’s testimony. It further noted that had Pope’s
grandfather or girlfriend testified, the Commonwealth would have cross-examined
these witnesses in such a way as to highlight the same conclusion: Pope is a repeat
drug trafficker in inherently dangerous drugs who deserves the maximum penalty.
The Trial Court thus believed the argument was speculative at best and rejected it.
We agree.
“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 [to establish ineffective assistance 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). Here, Pope
speculates that his counsel might have performed better by calling a different
witness to testify about his drug addictions. But as the Trial Court noted, the
Commonwealth would have cross-examined those witnesses to attain the same
conclusion. Likewise, the jury would have heard the list of all the prior
convictions regardless of whether Pope testified. The jury was not clearly
inflamed as a result of Pope’s testimony, as it spent time in deliberations and even
asked the Trial Court if it could return to the courtroom to re-examine Pope’s prior
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convictions. Moreover, and importantly, Pope points to no favorable facts that
would have changed the result. Accordingly, it is purely speculative that any
prejudice resulted. We affirm the Trial Court’s order on this issue.
VII. Cumulative Error
Finally, Pope argues that if we hold that none of the aforementioned
allegations of ineffective assistance of counsel meets the test under Strickland that
we should hold that the cumulative effect of all of the allegations constitutes the
requisite ineffective assistance of counsel. We do not agree. Cumulative error
may apply when the “individual errors were themselves substantial, bordering, at
least, on the prejudicial.” Commonwealth v. Harbin, 602 S.W.3d 166, 174 (Ky.
App. 2019) (quoting Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)).
The evidence against Pope was overwhelming and none of the individual
allegations of error was either substantial or bordering on prejudicial.
Accordingly, there was no cumulative error constituting prejudice.
CONCLUSION
Pope raises multiple allegations of ineffective assistance of trial
counsel and appellate counsel. We have reviewed them all and find none warrant
relief pursuant to Strickland’s standards for ineffective assistance of counsel.
Accordingly, we AFFIRM the Trial Court’s order denying relief.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Louis W. Rom Daniel Cameron
Lexington, Kentucky Attorney General of Kentucky
Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky
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