Malcolm Dickerson 193817 v. Commonwealth of Kentucky

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NOT TO BE PUBLISHED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.
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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.
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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.
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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
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