Miles v. Commonwealth

JONES, JUDGE

NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NOS. 05-CR-001335, 08-CR-003471, 09-CR-000971, 09-CR-001431 & 09-CR-001643 OPINION AND ORDER
AFFIRMING AND DENYING MOTION FOR INTERMEDIATE RELIEF

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BEFORE: JONES, TAYLOR AND THOMPSON, JUDGES. JONES, JUDGE: Acting without the assistance of counsel, the Appellant, Darrell Miles, seeks review of the Jefferson Circuit Court's denial of his RCr 11.42 motion to vacate or set aside his guilty plea and resulting sentences. Finding no error, we affirm. Likewise, we deny Miles's motion for intermediate relief as moot.

Kentucky Rule of Criminal Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 4, 2006, the Jefferson Circuit Court entered its final judgment in Case No. 05-CR-1335, convicting Miles of two counts of Possession of a Controlled Substance I, as well as multiple misdemeanor and violation offenses. The court sentenced Miles to five-years' imprisonment probated for a period of five years. While on probation, Miles was subsequently arrested and charged with the following felony offenses: (1) 2008-CR-3471 Trafficking in a Controlled Substance I; (2) 2009-CR-0971 Trafficking in a Controlled Substance I, Tampering with Physical Evidence; (3) 2009-CR-1431 Trafficking in a Controlled Substance I, Tampering with Physical Evidence; and (4) 09-CR-1643 Trafficking in a Controlled Substance I, Persistent Felony Offender I. As a result of the four new arrests and indictments, the Commonwealth also sought to revoke Miles's probation as related to the 2005 conviction.

Miles was arrested on these charges on August 14, 2008.

Miles was arrested on these charges on December 3, 2008.

Miles was arrested on these charges on February 12, 2009.

Miles was arrested on these charges on June 6, 2009.

Miles retained private counsel, Alex Dathorne, to represent him in connection with all of the pending charges. Eventually, the Commonwealth offered Miles the following plea agreement: (1) the Commonwealth would dismiss the Persistent Felony Offender I charge set forth in the fourth indictment; (2) Miles would plead guilty to all the remaining charges in the indictments one through four; (3) the Commonwealth would recommend five years for each indictment one through four to be served consecutively for a total sentence of twenty years on the four new indictments; and (4) the new twenty-year sentence would run consecutively with the five-year sentence Miles received after his probation was revoked on the 2005 conviction.

Miles accepted the Commonwealth's offer. On February 3, 2010, the trial court held a hearing on Miles's decision to plead guilty. The court engaged in a detailed colloquy to explore whether Miles's guilty plea was being entered into knowingly, voluntarily, and intelligently. The court's colloquy lasted approximately twenty-five minutes. During this time, the court reviewed each of the pleas with Miles, stating the charges, potential penalty, and the facts of each matter. The trial court questioned Miles to make sure he understood the charges and penalties he was facing with respect to each indictment. The trial court also questioned Miles about whether he understood his rights.

As occurred in Miles's case, it is common practice among the thirteen judges sitting on the Jefferson Circuit Court to agree to preside over a global guilty plea resolving all indictments against the same defendants.

The trial court then asked Miles whether he believed that his decision to plead guilty was in his best interest. Miles responded that he did not think pleading guilty was in his best interest, but he did not feel like he had a choice because he did not think he could win at trial. In response, the trial court asked Miles whether anyone had pressured him to plead guilty. Miles responded that he made the decision to plead guilty on his own. The trial court then provided Miles with a final opportunity to speak to his attorney, Mr. Dathorne.

After speaking with Miles, Mr. Dathorne informed the trial court that Miles had concerns with case number 09-CR-1643. Miles wanted Mr. Dathorne to clarify that the basis for the trafficking charge with respect to this indictment was the fact that cocaine residue was found on a digital scale in Miles's possession. Miles specifically wanted it known that there was not a separate amount of cocaine located as part of the search that led to this indictment. The court responded that the plea read as if there was a separate, more quantifiable amount of cocaine located during the search. The trial court stated, however, that the residue on the scale coupled with other indicia of trafficking was a sufficient basis for the trafficking charge. The trial court then asked Miles if he was satisfied with the court's understanding of the matter. Miles indicated that he was in agreement. The trial court then asked Miles if he was satisfied with his representation. Miles responded that he was satisfied with his counsel. Thereafter, the court accepted Miles's guilty pleas. The trial court sentenced Miles to a total of twenty-five years in accordance with the Commonwealth's recommendation: five years for each indictment one through four to be served consecutively for a total sentence of twenty years on the four new indictments to be run consecutively with the five-year sentence Miles received after his probation was revoked on the 2005 conviction.

Miles did not seek direct review on any of his convictions or sentences. However, on February 28, 2011, Miles filed a pro se motion to vacate pursuant to RCr 11.42. In his motion, Miles alleged that his guilty plea was not intelligently and voluntarily entered because he was deprived of effective assistance of counsel.

Subsequently, on January 17, 2013, the trial court appointed counsel for Miles and granted his request for an evidentiary hearing. At the evidentiary hearing, the trial court heard the testimony of both Miles and his prior counsel, Mr. Dathorne. Following the evidentiary hearing, the trial court denied Miles's motion on the basis that evidence showed that Miles's guilty plea was entered into knowingly, voluntarily, and intelligently. Further, the court found that Miles did not meet his burden of establishing that Mr. Dathorne was deficient in his representation. The court found that it was not unreasonable for Mr. Dathorne to pursue a plea agreement considering the overwhelming evidence against Miles as well as the severity of the charges. This appeal followed.

II. STANDARD OF REVIEW

The standards for assessing ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This two-pronged test requires Miles to show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Id. at 687. An attorney's performance is evaluated "by the degree of its departure from the quality of conduct customarily provided by the legal profession." Henderson v. Commonwealth, 636 S.W.2d 649, 650 (Ky. 1982). In addition, courts should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999).

When a defendant contends that his guilty plea is the result of ineffective assistance of counsel, his conviction may only be set aside when he demonstrates: (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 outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pled guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986).

When an evidentiary hearing is held in an RCr 11.42 proceeding, as in this case, 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. Findings of fact are clearly erroneous if they are not supported by substantial evidence. Johnson v. Commonwealth, 412 S.W.3d 157, 166 (Ky. 2013). The trial court's legal conclusions are reviewed de novo. Stiger, 381 S.W.3d at 234. Recognition must be given to the trial court's superior position to judge the credibility of the witnesses and the weight to accord their testimony. McQueen v. Commonwealth, 721 S.W.2d 699, 698 (Ky. 1986). With these standards in mind, we turn to the arguments presented by Miles.

III. ANALYSIS

A criminal defendant may demonstrate that his guilty plea was involuntary by showing that it was the result of ineffective assistance of counsel. In such a case, the trial court is to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel." Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (quoting Bronk, 58 S.W.3d at 486). A defendant is not guaranteed errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance. McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997). Miles makes several complaints of ineffective assistance of counsel under each of the five indictments included in his guilty plea. We will address these arguments in turn, as they relate to each indictment.

A. 08-CR-3471

First, Miles alleges that Mr. Dathorne's representation was defective with respect to charges stemming from the events of August 14, 2008. There, officers pulled Miles over for failing to make a right-hand turn signal. The arresting officer claimed Miles seemed very nervous during the traffic stop and was observed reaching down between the driver and passenger seat. Officers conducted a pat down and found a large bag of what the officers believed to be crack cocaine in Miles's right hand pocket of his pants. Miles also had two cell phones and $115 in his possession. Miles claims Mr. Dathorne should have filed a motion to suppress with respect to this stop and the ensuing search of his person.

At the evidentiary hearing Mr. Dathorne testified that this was Miles's second arrest in a week, the first one being on August 7, 2008. Mr. Dathorne testified that this case was pretty clear cut in his opinion. He explained that he spoke with the police officers and considered pursuing a motion to suppress or a lesser charge of possession versus trafficking, but there was a clear quantity of cocaine recovered. Additionally, he testified that he factored in that this was a second arrest within a week of a previous drug charge and Miles was on probation. Mr. Dathorne also testified that he considered the negative impact his fighting this charge with a less than certain motion to suppress might have on his ability to obtain a plea agreement on the other charges, some of which were more serious than this charge. In light his concerns, the strength of the evidence against Miles, and his on-going negotiations with the Commonwealth, Mr. Dathorne testified that he chose not to file a motion to suppress. Mr. Dathorne further testified that he talked about these risks and benefits with Miles and advised him of his opinion of what would be the best strategy for Miles.

Under 08-CR- 2935, Mr. Miles was arrested on August 7, 2008 after concerned citizens complained of drug activity near Mr. Miles's residence. After conducting surveillance and arranging a controlled buy, the police executed a search warrant where they recovered marijuana packaged for sale, a digital scale with white residue, a handgun, and ammunition. At the hearing, Mr. Dathorne discussed that as a result of his negotiations this indictment was dismissed as part of the guilty plea. He felt that in the future, in considerations for parole, this charge would be beneficial in being dismissed due to the fact that there was a firearm involved.

The evidence is clear that Mr. Dathorne considered the likely success of such a motion in relation to the overall goal of achieving a favorable outcome for Miles on all the various charges against him. Having extensively reviewed the record from the evidentiary hearing, we conclude the trial court correctly held that counsel's discretionary decision not to file a motion to suppress on this charge was the result of sound trial strategy and did not rise to ineffective assistance of counsel.

If a police officer has probable cause to believe a person has committed a traffic offense, the officer may detain the person temporarily, regardless of the officer's motives or suspicions. Whren v. U.S., 517 U.S. 806, 808, 812-13 (1996). Miles presented no evidence to indicate the initial stop was unlawful and nothing in the record suggests it was long in duration and thus illegal. Further, a police officer, in the course of an investigatory stop, may conduct a limited pat-down of a suspect's outer clothing so long as the officer possesses a reasonable belief that the detainee poses a threat to the officer's safety. Terry v. Ohio, 392 U.S. 1, 27 (U.S. 1968). The officer performing the stop indicated Miles looked very nervous and was reaching down in the seat. The officer could have reasonably believed Miles was trying to secure a gun. Thus, it is unlikely Miles would have been successful in pursuing the motion. --------

B. 09-CR-0971

Next, Miles claims that Mr. Dathorne was ineffective with respect to the charges under 09-CR-0971. These charges arose on December 3, 2008, when police found Miles parked in a parking lot and approached his vehicle. Police observed Miles take a baggie of cocaine and throw it in the back seat of the car. The police also found a scale in the car and then went on to search Miles's residence where they found another scale with cocaine residue and baggies.

Here, Miles claims that trial counsel was ineffective because he allowed the Commonwealth to include inaccurate information in the plea. Miles asserts that counsel's performance affected the outcome of the process by allowing the Commonwealth to illegally enhance the charge and the penalty from possession, one to five years, to trafficking, five to ten years. Further, he asserts that trial counsel coaxed him into pleading guilty based on statements he made during an interrogation which violated Miranda.

Mr. Dathorne testified that Miles admitted to the police that he was selling drugs to pay for attorney fees and then signed a consent form for the search of his residence. Mr. Dathorne stated that he did consider and discuss with Miles a potential suppression motion, considering whether this was a stop or not, however he believed there was little chance of success because Miles's vehicle was parked in plain view. Further, Mr. Dathorne did not believe that there was any way to validly attack the search of Miles's residence because he signed a search form.

Mr. Dathorne testified that he did advise Miles that he could take the case to trial to fight the trafficking charge, but there was a risk that he would be found guilty and the penalties for trafficking would be stiff. Mr. Dathorne testified that in light of the number of separate charges pending against Miles and the risk of conviction, he believed it was in Miles's best interest to attempt to enter into a global plea agreement. In light of the evidence against Miles and based on the record before us, we agree with the trial court that counsel appropriately exercised his discretion in pursuing the overall strategy that he believed was most effective for Miles.

C. 09-CR-1431

Miles next argues that counsel was ineffective for failing to get the charges in 09-CR-1431 dismissed. The underlying events transpired on February 12, 2009, when officers were dispatched to Hale Avenue after an anonymous caller claimed shots were fired. The caller alleged that the perpetrator got into a green Ford Mustang with a spoiler and tinted windows. Officers located the vehicle and initiated a traffic stop. Miles exited the Ford Mustang and fled on foot; however, he was eventually caught. Officers traced Miles's track on foot and discovered a bag of crack cocaine. Miles was also in possession of $798. Miles alleges that there was no evidence that he had physical control or possession of the cocaine and that this information was withheld from him.

Mr. Dathorne testified that he looked into the facts of this case and considered the evidence against his client and found that it would not be in his client's best interest to file a motion to suppress. Mr. Dathorne also explained that there was a significant amount of cocaine involved that was consistent with trafficking. Again, we agree with the trial court. Mr. Dathorne made a sound strategic decision to attempt to resolve these charges in conjunction with the other charges pending against Miles.

D. 09-CR-1643

On June 6, 2009, officers executed another search warrant after noticing a lot of foot traffic moving in and out of the area where Miles was residing. Officers arrested two individuals, both of whom alleged they had bought drugs from Miles. Officers retrieved baggies of marijuana as well as a digital scale with alleged cocaine residue from the home as a result of the search. Miles alleges Mr. Dathorne failed to challenge the sufficiency of the search warrant and failed to investigate the facts of the case.

At the evidentiary hearing Mr. Dathorne testified that initially he believed this case was one of the weaker cases, however after looking into it more carefully he believed that there was clear circumstantial evidence of trafficking, and therefore, there was no basis for suppression. Having reviewed the record from the evidentiary hearing, we once again must agree with the trial court. Mr. Dathorne testified that he investigated the underlying facts and researched the law. Furthermore, we believe that he kept Miles appropriately informed of charges and his conclusions with respect thereto. We agree with the trial court that Miles failed to demonstrate that Mr. Dathorne rendered ineffective assistance with respect to 09-CR-1643.

E. Waiver of Separate Sentencing Hearing

Miles claims that he was prejudiced when the trial court failed to follow the mandatory presentence and sentence procedure set out in KRS 532.050 and as interpreted by the case of Brewer v. Commonwealth, 550 S.W.2d 474 (Ky. 1977), by holding a separate sentencing hearing following his guilty plea. Miles believes that had a presentence investigation report been prepared before the trial court sentenced him, it would have benefited him because it would have shown that he was a drug addict, not a drug trafficker.

We believe the record supports the trial court's conclusion that Miles knowingly waived his right to a separate sentencing hearing. Furthermore, we would be remiss if we did not point out that the trial court sentenced Miles in accordance with the Commonwealth's recommendation, which was part of the plea agreement. We find no error here.

F. Coercion

Lastly, Miles argues several claims of coercion throughout his appeal. As part of his claims of coercion, Miles claims that his only choice was to accept all four of the pleas of guilt as well as to have his probation revoked as a package deal. The Commonwealth took the stance that it wanted to resolve all of the charges together. This was the Commonwealth's prerogative. Likewise, it was counsel's duty to give his realistic opinion on the likely outcome if Miles took the cases to trial. The fact that counsel recommended to Miles that he accept the plea agreement does not render his representation defective. It was necessary for counsel to advise Miles on the gravity of the charges he was facing and the likelihood that the jury might convict him on those charges. We believe Mr. Dathorne had an obligation to tell Miles whether he believed his cases were likely to be successful at trial and recommend that he accept the Commonwealth's plea offer if he believed it was the best course of action for Miles under the circumstances. See Beecham v. Commonwealth, 657 S.W.2d 234, 237 (Ky. 1983).

Moreover, Miles stated on the record as part of his plea agreement that his plea was voluntary and that he had not been coerced. Miles has not set forth anything other than the fact that his attorney gave him a less than optimistic view of his chances of prevailing at trial. Based on the facts, we agree with the trial court that Miles failed to show any coercion.

IV. CONCLUSION

For these reasons, we AFFIRM the order of the Jefferson Circuit Court. Appellant's motion for intermediate relief is DENIED as MOOT.

THOMPSON, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY. ENTERED: JULY 1, 2016

/s/ Allison E. Jones

JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Darrell L. Miles, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky