Aaron Antonio Evans v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: July 6, 2023
• Docket: 2022 CA 001224
• Status: Unknown

Opinion

RENDERED: JULY 7, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1224-MR

AARON ANTONIO EVANS APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 18-CR-01191

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.

COMBS, JUDGE: Appellant, Aaron Evans (Evans), appeals from an Order of the

Fayette Circuit Court denying his RCr1 11.42 motion to vacate. After our review,

we affirm.

On July 20, 2018, officers with the Lexington Police Department

conducted a narcotics investigation based upon information from a qualified

1 Kentucky Rules of Criminal Procedure. confidential informant and observed Evans make a hand-to-hand transaction

involving heroin with the informant. A traffic stop of Evans’s vehicle was

undertaken, and marijuana was observed in plain view.

On October 15, 2018, a Fayette County Grand Jury indicted Evans for

one count of trafficking in a controlled substance and one count of possession of

marijuana. On February 15, 2019, Evans’s defense attorney, Chris Wilkie, filed a

motion to suppress “the evidence seized in this case after the unreasonable and

illegal stop.” The motion was set for hearing on March 6, 2019, but subsequently

Evans was arrested on federal charges. By Agreed Order, the suppression hearing

was removed from the docket and the case was set for a status conference.

Multiple court dates were rescheduled because Evans was in federal custody.

After petitioning the Commonwealth and the trial court pursuant to the Interstate

Agreement on Detainers Act, Evans was returned to state custody in order to

resolve the charges in Fayette County.

On August 14, 2020, based upon the Commonwealth’s recommended

minimum sentence of five years and dismissal of the marijuana charge, Evans pled

guilty to the trafficking charge. On September 23, 2020, the trial court entered

Final Judgment and Sentence of Imprisonment, adjudging Evans guilty of the

crime of Count I, Trafficking in a Controlled Substance, 1st Offense, Heroin.

However, the court sentenced him to the five years as recommended -- but ordered

-2- it to run consecutively to his federal sentence rather than concurrently as his

counsel had requested. The court dismissed Count 2, the marijuana charge.

In 2021, Evans, pro se, filed multiple requests with the trial court that

his sentence be run concurrently, all of which were denied.

On February 14, 2022, Evans, pro se, filed a form which appears to

have originated from another jurisdiction. Although untitled, the instructions on

the first page indicate that it is a motion to vacate, set aside, or correct conviction

and sentence. The motion provides as follows in relevant part:2

8. State concisely all the grounds known to you for vacating, setting aside or correcting your conviction and sentence (See Rule PC 1, Sec. 1a)

(a) The Petitioner’s right to counsel has been violated.

(b) Counsel was ineffective for failing to challenge the basis for the alleged traffic offense.

(c) Counsel was ineffective for cancelling the motion to suppress hearing, which was not a strategic decision due to the circumstances of this case.

...

9. State concisely and in the same order the facts which support each of the grounds set forth in (8).

(a) The petitioners [sic] right to counsel under the Sixth Amendment has been violated, due to counsel

2 Evans’s handwritten responses on the original form are underlined.

-3- refusing to make aware of State’s Discovery, Lab test, Bill of particulars.

(b) Counsel was ineffective for failing to challenge the traffic stop upon which the offense was based because the police report did not specify the nature of infraction and the stop thus lacked probable cause.

(c) Counsel was ineffective for cancelling the motion to suppress hearing, which was not a strategic decision to the circumstances of this case. By having the hearing could of only helped the petitioners [sic] argument to get the charges dismissed.

The form further indicates: that Chris Wilkie was the attorney who

had represented Evans; that Evans had not retained an attorney in the current

proceeding; that Evans lacked sufficient funds to employ counsel; and that he

wished to have the public defender represent him. The form was verified and

notarized. An affidavit of indigency was attached.

By Order entered on April 12, 2022, the circuit court granted Evans’s

motions to proceed in forma pauperis and to appoint counsel. The circuit court

allowed the Department of Public Advocacy (the DPA) until June 3, 2022, to file

any supplemental pleading, extending the time for the Commonwealth to respond

and for defendant to file a reply -- if any -- accordingly.

On June 3, 2022, the DPA filed a motion requesting an extension of

time until August 31, 2022, in order to review the case and to supplement if

-4- necessary. The circuit court granted that motion by Order entered on June 14,

2022.

On June 15, 2022, Evans, pro se, filed a handwritten document (“the

June 15th letter”) stating that he had not agreed to an extension nor to the DPA’s

representation. Evans further stated, “I would like to continue my ‘post

conviction’ ‘ineffective counsel’ ‘Pro se’ until further notice. I would like to

proceed without anymore Delays and if allowed I would like to be in court for all

future and Further Hearings.”

On July 1, 2022, the circuit court granted Evans’s “Pro Se Motion to

Proceed Pro Se” and released the DPA as counsel of record.

On July 27, 2022, Evans filed a handwritten document dated July 21,

2022, explaining that he had been told that an attorney had been appointed to his

case and had requested an extension of time, “which didn’t agree with my

strategy.” Evans further stated that he would like representation, but “no motions

filed without [his] approval.”

By Order entered on August 1, 2022, the circuit court denied Evans’s

request to reinstate DPA as counsel.

On August 1, 2022, the Commonwealth filed a response to Evans’s

RCr 11.42 motion, reciting in relevant part as follows:

[It] believes that the basis for the Defendant’s Motion to Vacate is contained in the June 15th letter. Therein the

-5- Defendant claims that (1) he never agreed to be represented by the DPA and (2) that he did not agree to an extension of the filing deadline. Also, Commonwealth assumes Movant is arguing his original Counsel, Hon. Chris Wilkie was ineffective.

Movant has not listed any specific grievances about the Hon. Chris Wilkie.

Evans filed a reply (designated as a “Response”), contending that his

“guilty plea was not voluntary, knowing & intelligent, therefore [he] was Denied

effective assistance of counsel.” Evans complained that his counsel never made

him aware of the state’s discovery, lab test, or bill of particulars; that counsel was

ineffective for failing to challenge the traffic stop; and that counsel was ineffective

for cancelling the motion to suppress.

By Order entered on September 13, 2022, the circuit court denied

Evans’s motion to vacate judgment pursuant to RCr 11.42, adopting the

Commonwealth’s response as its basis.

Evans filed a Motion for Reconsideration, explaining, inter alia, the

apparent confusion in the Commonwealth’s response to his RCr 11.42 motion.

Evans stated that he had “filled out a post conviction application packet that a

friend printed out and sent off to [him] and that was filed on February 14, 2022[.]”

Evans further explained that his June 15th letter -- which the Commonwealth

believed was the basis for his RCr 11.42 motion -- had nothing to do with his

-6- claim for ineffectiveness of counsel and that he was not claiming ineffectiveness of

counsel with respect to the DPA. Rather, Evans’s claim for ineffectiveness of

counsel was based upon the “Poor Performance” of his defense attorney, Chris

Wilkie, as had been set forth in his RCr 11.42 motion (the post-conviction

application packet) filed on February 14, 2022, and in his reply to the

Commonwealth’s response.

By Order entered on October 3, 2022, the circuit court denied Evans’s

Motion for Reconsideration as follows in relevant part:

Upon the Court receiving a Pro se Motion from the Defendant For Reconsideration, the Court has reviewed the motion and the record and finds as follows:

The previous motion could be decided on the record; therefore, there was not a need for an evidentiary hearing.

There is no legal basis to change the Court’s prior Order.

Evans appeals. His initial argument3 is that the circuit court erred

when it “denied Appellant an evidentiary hearing even though he alleged in his

RCr 11.42 specific grounds and facts that if true would warrant relief and the

record cannot conclusively disprove the Material issues of fact raised in his

motion.” Evans further argues that defense counsel was ineffective:

3 This argument is not numbered and precedes Appellant’s Argument I.

-7- I. for violating [his] rights under the Sixth Amendment U.S.C. and for failing to inform and Properly Advise [him of] viable defenses.

II. for failing to challenge the traffic stop upon which the offense [was] based on the police report did not specify the Nature of infraction and thus lacked probable cause.

III. for failing to move to suppress Evidence and cancelling motion to suppress hearing.

We address Evans’s arguments together. In order to prove a claim for

ineffective assistance of counsel, a defendant must show both that counsel’s

performance was deficient and that the deficiency prejudiced the defendant.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d

674 (1984). In Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009), our

Supreme Court explained as follows:

In order to prove ineffective assistance of counsel where a guilty plea has been entered, the movant must establish:

(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 pleaded guilty, but would have insisted on going to trial.

-8- Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (considering claim of ineffective assistance of counsel brought pursuant to RCr 8.10 motion to withdraw a guilty plea). “[T]he 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.” Id. at 487.

Our analysis . . . must begin with the voluntariness of [the defendant’s] guilty plea. This is because the effect of a valid plea of guilty is to waive all defenses other than that the indictment charges no offense. Quarles v. Commonwealth, 456 S.W.2d 693, 694 (Ky. 1970). We determine the voluntariness of the plea from the “totality of the circumstances.” Rodriguez v. Commonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002). In doing so, we “juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel.” Bronk, 58 S.W.3d at 486.

In the case before us, our review of the record reveals that the trial

court determined the voluntariness of Evans’s guilty plea by conducting a thorough

Boykin4 colloquy. Evans readily testified that he had no complaints regarding his

lawyer. He admitted that he was guilty of trafficking in a controlled substance,

first offense, heroin. Evans testified that he understood that the Commonwealth’s

recommendation -- five years -- was the minimum on a Class C felony. Evans

further testified that his lawyer had discussed with him what the Commonwealth

4 Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

-9- would have to prove to convict him; the elements of the offenses; possible lesser

offense; and possible defenses.

Defense counsel confirmed that he had discussed the elements of the

offenses, possible lesser offense, and possible defenses with Evans and confirmed

that Evans understood. Evans responded “Yes,” when the trial court asked if he

agreed with his lawyer’s answers. “Solemn declarations in open court carry a

strong presumption of verity. The subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as are

contentions that in the face of the record are wholly incredible.” Edmonds v.

Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006) (internal quotation marks and

citation omitted).

Thus, despite any confusion below regarding the June 15th letter

versus the form as the basis for Evans’s RCr 11.42 motion (which Evans addressed

in his motion for reconsideration), we are satisfied from our own independent

review of the record that the circuit court properly denied Evans’s motion without

conducting an evidentiary hearing. “[A]n appellate court may affirm a lower court

for any reason supported by the record.” Coursey v. Commonwealth, 593 S.W.3d

64, 67 (Ky. App. 2019).

As aptly stated in Allen v. Commonwealth, 668 S.W.2d 556, 557 (Ky.

App. 1984):

-10- The trial court in this case conducted a lengthy and constitutionally complete guilty plea proceedings. The appellant freely admitted guilt to the charges, satisfaction with the assistance of counsel, and that he was freely, voluntarily, knowingly, and intelligently entering the guilty pleas. Therefore, the record refutes in every way the appellant’s allegations in his motion to vacate judgment. No evidentiary hearing was required.

Accordingly, we affirm.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Aaron Evans, pro se Daniel Cameron Beaver, West Virginia Attorney General of Kentucky

Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky

-11-