RENDERED: APRIL 29, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0768-MR
ANTHONY WAYNE FAGAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 18-CR-00409
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND MAZE, JUDGES.
CALDWELL, JUDGE: Anthony Fagan, pro se, appeals the trial court’s denial of
his RCr1 11.42 motion for a new trial. Having reviewed the briefs, the record, and
the trial court order, we affirm.
1 Kentucky Rules of Criminal Procedure. FACTS
On April 17, 2018, the Paducah Police Department executed a search
warrant for Appellant Fagan’s residence. During the search, a large amount of
methamphetamine was seized, and Fagan was charged with trafficking in a
controlled substance in the first-degree, greater than two grams of
methamphetamine, second or subsequent offense. Following a Faretta2 hearing,
Fagan represented himself at trial with the assistance of standby counsel.3 He was
found guilty of that charge by a jury and was sentenced to fifteen years’
imprisonment.
Fagan appealed his conviction and his conviction was affirmed by this
Court in Fagan v. Commonwealth, No. 2019-CA-000471-MR, 2020 WL 1898394
(Ky. App. Apr. 17, 2020), in April of 2020. Discretionary review of that opinion
was denied by the Kentucky Supreme Court.4 Fagan then filed a motion pursuant
to RCr 11.42, seeking a new trial alleging ineffective assistance of trial and
2 Faretta v. California, 422 U.S. 806, 810, 95 S. Ct. 2525, 2529, 45 L. Ed. 2d 562 (1975).
3 “Standby counsel is defined as ‘[a]n attorney who is appointed to be prepared to represent a pro se criminal defendant if the defendant’s self-representation ends. [] The standby counsel may also provide some advice and guidance to the defendant during the self-representation.’” Allen v. Commonwealth, 410 S.W.3d 125, 138 (Ky. 2013) (citations omitted).
4 Fagan v. Commonwealth, No. 2020-SC-0203-D.
-2- appellate counsel. That motion was denied by the McCracken Circuit Court and he
now appeals.
STANDARD OF REVIEW
A denial of an RCr 11.42 motion is reviewed on appeal for an abuse
of the trial court’s discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548
(Ky. 1998). Abuse of discretion has been defined as occurring when the trial court
enters an order or makes a ruling which is arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
ANALYSIS
To succeed on a claim of ineffective assistance of counsel, a movant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S. Ct. at 2064.
Wagner v. Commonwealth, 483 S.W.3d 381, 383 (Ky. App. 2015).
Reviewing courts must presume that the assistance offered by counsel
“falls within the wide range of reasonable professional assistance[.]” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065. With this in mind, we review Fagan’s
allegations.
-3- The trial court did not hold a hearing into Fagan’s complaints
concerning counsel, finding they were refuted by the record. Fagan does not allege
on appeal that the failure to hold a hearing was error.
A trial court must hold an evidentiary hearing on an RCr 11.42 motion “only when there is ‘a material issue of fact that cannot be determined on the face of the record.’” [Commonwealth v. Searight, 423 S.W.3d 266, 228 (Ky. 2014),] (quoting RCr 11.42(5) (other citation omitted)). A court may “summarily” deny “motions asserting claims refuted or otherwise resolved by the record.” Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012). Also, no hearing is required if “the allegations, even if true, would not be sufficient to invalidate [the] convictions.” Searight, 423 S.W.3d at 228 (internal quotation marks and citation omitted).
Fowler v. Commonwealth, 634 S.W.3d 605, 609 (Ky. App. 2021).
As Fagan does not complain about the lack of a hearing, and the order
of the trial court denying the relief establishes that a hearing was not required due
to the allegations being refuted by the record, we find that a hearing was not
required and the trial court did not abuse its discretion in so finding.
Fagan spends most of his brief finding fault with the Paducah police
officer who obtained the search warrant, alleging that the officer falsified the
affidavit filed to obtain the warrant. Of course, none of those allegations are
relevant in an RCr 11.42 motion, and further, as the Commonwealth points out,
have previously been litigated on direct appeal. “‘Law of the case’ refers to a
handful of related rules giving substance to the general principle that a court
-4- addressing later phases of a lawsuit should not reopen questions decided by that
court or by a higher court during earlier phases of the litigation.” Brown v.
Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010).
Fagan does allege that trial counsel failed to adequately investigate the
validity of the factual allegations contained in the affidavit in support of the
issuance of the search warrant. However, Fagan acted as his own counsel at his
trial and was appointed only “standby” counsel.
As the U.S. Supreme Court has stated, “whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’” Faretta, 422 U.S. at 834 n.46, 95 S. Ct. 2525. Depp v. Commonwealth, 278 S.W.3d 615, 620 (Ky. 2009).
In a hybrid representation situation, as we have here, it is only when
there has been a clear outlining of separate responsibilities between the pro se
accused and his standby or assistance counsel that the accused may maintain a
colorable argument for a finding of ineffectiveness.
[T]rial counsel is obligated to provide reasonably effective representation as to those duties specifically and unequivocally assigned to him or her. See generally McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky.1997) (a criminal defendant is entitled to “reasonably effective assistance” of counsel). A blanket denial of Wagner’s right to challenge this representation leaves wholly unanswered whether trial counsel satisfied this standard. Indeed, such a denial would grant hybrid
-5- counsel complete autonomy to disregard any duty whatsoever to defendants. Wagner, 483 S.W.3d at 383-84.
When a litigant is alleging ineffective assistance of hybrid counsel, he
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RENDERED: APRIL 29, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0768-MR
ANTHONY WAYNE FAGAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 18-CR-00409
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND MAZE, JUDGES.
CALDWELL, JUDGE: Anthony Fagan, pro se, appeals the trial court’s denial of
his RCr1 11.42 motion for a new trial. Having reviewed the briefs, the record, and
the trial court order, we affirm.
1 Kentucky Rules of Criminal Procedure. FACTS
On April 17, 2018, the Paducah Police Department executed a search
warrant for Appellant Fagan’s residence. During the search, a large amount of
methamphetamine was seized, and Fagan was charged with trafficking in a
controlled substance in the first-degree, greater than two grams of
methamphetamine, second or subsequent offense. Following a Faretta2 hearing,
Fagan represented himself at trial with the assistance of standby counsel.3 He was
found guilty of that charge by a jury and was sentenced to fifteen years’
imprisonment.
Fagan appealed his conviction and his conviction was affirmed by this
Court in Fagan v. Commonwealth, No. 2019-CA-000471-MR, 2020 WL 1898394
(Ky. App. Apr. 17, 2020), in April of 2020. Discretionary review of that opinion
was denied by the Kentucky Supreme Court.4 Fagan then filed a motion pursuant
to RCr 11.42, seeking a new trial alleging ineffective assistance of trial and
2 Faretta v. California, 422 U.S. 806, 810, 95 S. Ct. 2525, 2529, 45 L. Ed. 2d 562 (1975).
3 “Standby counsel is defined as ‘[a]n attorney who is appointed to be prepared to represent a pro se criminal defendant if the defendant’s self-representation ends. [] The standby counsel may also provide some advice and guidance to the defendant during the self-representation.’” Allen v. Commonwealth, 410 S.W.3d 125, 138 (Ky. 2013) (citations omitted).
4 Fagan v. Commonwealth, No. 2020-SC-0203-D.
-2- appellate counsel. That motion was denied by the McCracken Circuit Court and he
now appeals.
STANDARD OF REVIEW
A denial of an RCr 11.42 motion is reviewed on appeal for an abuse
of the trial court’s discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548
(Ky. 1998). Abuse of discretion has been defined as occurring when the trial court
enters an order or makes a ruling which is arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
ANALYSIS
To succeed on a claim of ineffective assistance of counsel, a movant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S. Ct. at 2064.
Wagner v. Commonwealth, 483 S.W.3d 381, 383 (Ky. App. 2015).
Reviewing courts must presume that the assistance offered by counsel
“falls within the wide range of reasonable professional assistance[.]” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065. With this in mind, we review Fagan’s
allegations.
-3- The trial court did not hold a hearing into Fagan’s complaints
concerning counsel, finding they were refuted by the record. Fagan does not allege
on appeal that the failure to hold a hearing was error.
A trial court must hold an evidentiary hearing on an RCr 11.42 motion “only when there is ‘a material issue of fact that cannot be determined on the face of the record.’” [Commonwealth v. Searight, 423 S.W.3d 266, 228 (Ky. 2014),] (quoting RCr 11.42(5) (other citation omitted)). A court may “summarily” deny “motions asserting claims refuted or otherwise resolved by the record.” Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012). Also, no hearing is required if “the allegations, even if true, would not be sufficient to invalidate [the] convictions.” Searight, 423 S.W.3d at 228 (internal quotation marks and citation omitted).
Fowler v. Commonwealth, 634 S.W.3d 605, 609 (Ky. App. 2021).
As Fagan does not complain about the lack of a hearing, and the order
of the trial court denying the relief establishes that a hearing was not required due
to the allegations being refuted by the record, we find that a hearing was not
required and the trial court did not abuse its discretion in so finding.
Fagan spends most of his brief finding fault with the Paducah police
officer who obtained the search warrant, alleging that the officer falsified the
affidavit filed to obtain the warrant. Of course, none of those allegations are
relevant in an RCr 11.42 motion, and further, as the Commonwealth points out,
have previously been litigated on direct appeal. “‘Law of the case’ refers to a
handful of related rules giving substance to the general principle that a court
-4- addressing later phases of a lawsuit should not reopen questions decided by that
court or by a higher court during earlier phases of the litigation.” Brown v.
Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010).
Fagan does allege that trial counsel failed to adequately investigate the
validity of the factual allegations contained in the affidavit in support of the
issuance of the search warrant. However, Fagan acted as his own counsel at his
trial and was appointed only “standby” counsel.
As the U.S. Supreme Court has stated, “whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’” Faretta, 422 U.S. at 834 n.46, 95 S. Ct. 2525. Depp v. Commonwealth, 278 S.W.3d 615, 620 (Ky. 2009).
In a hybrid representation situation, as we have here, it is only when
there has been a clear outlining of separate responsibilities between the pro se
accused and his standby or assistance counsel that the accused may maintain a
colorable argument for a finding of ineffectiveness.
[T]rial counsel is obligated to provide reasonably effective representation as to those duties specifically and unequivocally assigned to him or her. See generally McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky.1997) (a criminal defendant is entitled to “reasonably effective assistance” of counsel). A blanket denial of Wagner’s right to challenge this representation leaves wholly unanswered whether trial counsel satisfied this standard. Indeed, such a denial would grant hybrid
-5- counsel complete autonomy to disregard any duty whatsoever to defendants. Wagner, 483 S.W.3d at 383-84.
When a litigant is alleging ineffective assistance of hybrid counsel, he
or she must be specific to the duties of hybrid counsel where he believes the
performance fell below the acceptable standard of representation. While Fagan
alleges that standby counsel failed to investigate his claims that the police officer
was not truthful in the allegations made in the search warrant affidavit, he does not
establish that such investigation was the purview of standby counsel, rather than a
task reserved for his own performance. The motion to suppress was filed by Fagan
pro se and Fagan also filed a motion for “co-council” (sic). Nothing in Fagan’s
brief and nothing in the record delineates the duties between Fagan and his standby
counsel. Absent such allegation, we cannot say that the trial court was incorrect in
finding that Fagan failed to meet his burden; it was not made clear that the matters
of which he complains were even matters to which hybrid counsel was to attend.
Fagan also alleges that appellate counsel was ineffective for failing to
raise on appeal an issue of scientific evidence pertaining to the controlled
substance seized in his residence. Two large portions of alleged
methamphetamine, each similar in appearance to the other, were seized during the
execution of the search warrant. However, the state police crime laboratory only
conducted scientific testing on a part of one of the portions, which testing revealed
-6- the portion contained methamphetamine. Fagan alleges that appellate counsel
should have argued that the fact the other portion was not tested in any way was
error and that he should have been convicted only of trafficking in a lesser amount
of methamphetamine as a result.
First, Fagan was charged with trafficking in more than two grams of
methamphetamine. Each portion seized from his residence weighed more than
twenty (20) grams. Thus, testing of only one of the portions was more than
sufficient for the finding. See Taylor v. Commonwealth, 984 S.W.2d 482, 484 (Ky.
App. 1998) (holding that testing a portion of contraband found at the same time
and in the same location is sufficient evidence that all of the substance seized was
of the same character). Appellate counsel was not ineffective for not raising this
issue.
CONCLUSION
Having reviewed the order of the trial court, the briefs of the parties,
and the record below, we find that the trial court did not abuse its discretion in
denying the motion for a new trial pursuant to RCr 11.42. We affirm the trial
court.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Anthony Wayne Fagan, pro se Daniel Cameron Louisville, Kentucky Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
-8-