RENDERED: MAY 26, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0640-MR
CHARLES ROBERSON APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 18-CR-00372
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Charles Roberson1 appeals pro se from the Hardin Circuit
Court’s order entered on May 11, 2022, which denied his Kentucky Rule of
Criminal Procedure (RCr) 11.42 post-conviction motion for relief from judgment.
We affirm.
1 The briefs and multiple filings in the trial court record refer to the Appellant as “Charles Roberson Jr.” However, the notice of appeal only listed his name as “Charles Roberson”; thus that is the name we must use. On April 26, 2018, Roberson was indicted for murder in the death of
Xedric “C.J.” McNeil along with two counts of criminal attempt to commit
murder, one count of first-degree wanton endangerment, and one count of
tampering with physical evidence. The charges arose from a verbal altercation
between Roberson and McNeil during a social gathering on February 4, 2018,
which escalated and resulted in Roberson firing multiple gun shots at McNeil and
into the vicinity of three other individuals.
A jury trial was scheduled for February 4, 2019, during which voir
dire was conducted before Roberson opted to accept an offer to plead guilty to
amended charges of first-degree manslaughter and three counts of first-degree
wanton endangerment. The tampering with physical evidence charge was
additionally dismissed in return. Roberson was later sentenced to 18 years on
April 4, 2019, in accordance with the plea agreement.
On January 24, 2022, Roberson filed a post-conviction motion
asserting he unknowingly and unintelligently entered into his plea agreement due
to the ineffective assistance of counsel. Specifically, Roberson argued his trial
counsel failed to file a motion to suppress evidence and properly investigate,
pursue, and advise him of an extreme emotional disturbance (EED) defense and
imperfect self-defense. The trial court denied the motion on March 9, 2022,
because Roberson failed to attach a signed verification to the motion pursuant to
-2- RCr 11.42(2), and the motion was refiled with a proper verification on March 21,
2022. The Commonwealth filed a response on May 2, 2022, and on May 11, 2022,
the trial court denied Roberson’s motion on the merits without an evidentiary
hearing. This appeal followed.
An RCr 11.42 movant must satisfy the two-pronged test laid forth in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984), by demonstrating that his or her counsel was inadequate, and counsel’s
errors prejudiced the case. See also Gall v. Commonwealth, 702 S.W.2d 37, 39
(Ky. 1985). When involving entry of a guilty plea, the movant must prove there
was a reasonable probability that, absent counsel’s deficiency, he or she would not
have pled guilty and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); accord Phon v. Commonwealth,
51 S.W.3d 456 (Ky. App. 2001). A reviewing court “must be highly deferential”
of counsel’s performance, and “the defendant must overcome the presumption that
counsel provided a reasonable trial strategy.” Brown v. Commonwealth, 253
S.W.3d 490, 498-99 (Ky. 2008).
Before addressing the arguments before us, we must first note that,
along with some formatting errors, Roberson’s brief fails to provide a preservation
statement for the claims he raises, and it does not include a word-count certificate
since it exceeds by three pages the limit required by Kentucky Rule of Appellate
-3- Procedure (RAP) 31(G)(2). However, the Commonwealth has asserted no
objection, and due to the relatively short length of the record and the clear nature
of the claims, we elect to ignore the deficiencies and review under the normal
Strickland analysis as opposed to manifest injustice. See Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010).
On appeal, Roberson again asserts he entered into an unknowing and
unintelligent plea agreement due to trial counsel’s errors, the first of those errors
being trial counsel’s failure to seek suppression of evidence. Roberson maintains
that the shooting occurred in a parking lot outside an apartment unit located at 300
Diecks Drive #7, and officers made entry into the apartment before a search
warrant, predicated on a faulty affidavit, was later granted.
The trial court ruled that Roberson failed to identify “anything
specific gathered” pursuant to the warrant which would have been used to convict
him at trial. We agree with this rationale. RCr 11.42(2) mandates a motion to
“state specifically the grounds on which the sentence is being challenged and the
facts on which the movant relies in support of such grounds.” Facts must be pled
with “particularity” otherwise “the trial court cannot tell whether an evidentiary
hearing is necessary.” Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012).
Failure to satisfy this specificity requirement mandates a summary dismissal. RCr
11.42; Roach, 384 S.W.3d at 140. The only mention of any evidence that
-4- Roberson alleges was unlawfully obtained was in reference to cell phones seized at
the scene, but Roberson fails to articulate what exactly was contained on these
phones and how suppression would have secured a more favorable outcome for his
case. Furthermore, as the Commonwealth argues, there is a question as to whether
Roberson would have had proper standing to invoke suppression because he
indicates in his brief he did not reside at the apartment unit searched, and multiple
cell phones, which presumably did not all belong to him, were seized. See Ordway
v. Commonwealth, 352 S.W.3d 584, 592 (Ky. 2011) (citation omitted) (“A
defendant bears the burden of establishing standing to challenge a Fourth
Amendment search.”). Roberson does not otherwise articulate what expectation of
privacy he maintained in what was searched or seized. See Rawlings v. Kentucky,
448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).
Turning to the only remaining claim of error, Roberson argues that
trial counsel failed to sufficiently investigate, pursue, and advise him regarding an
EED defense and imperfect self-defense. This claim is directly and conclusively
refuted by the record, and we further affirm the trial court’s summary denial which
was also predicated on this reasoning. See Cawl v. Commonwealth, 423 S.W.3d
214, 218 (Ky. 2014) (“[A]n evidentiary hearing is not required when the record
refutes the claim of error or when the allegations, even if true, would not be
sufficient to invalidate the conviction.”) (emphasis in original).
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 26, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0640-MR
CHARLES ROBERSON APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 18-CR-00372
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Charles Roberson1 appeals pro se from the Hardin Circuit
Court’s order entered on May 11, 2022, which denied his Kentucky Rule of
Criminal Procedure (RCr) 11.42 post-conviction motion for relief from judgment.
We affirm.
1 The briefs and multiple filings in the trial court record refer to the Appellant as “Charles Roberson Jr.” However, the notice of appeal only listed his name as “Charles Roberson”; thus that is the name we must use. On April 26, 2018, Roberson was indicted for murder in the death of
Xedric “C.J.” McNeil along with two counts of criminal attempt to commit
murder, one count of first-degree wanton endangerment, and one count of
tampering with physical evidence. The charges arose from a verbal altercation
between Roberson and McNeil during a social gathering on February 4, 2018,
which escalated and resulted in Roberson firing multiple gun shots at McNeil and
into the vicinity of three other individuals.
A jury trial was scheduled for February 4, 2019, during which voir
dire was conducted before Roberson opted to accept an offer to plead guilty to
amended charges of first-degree manslaughter and three counts of first-degree
wanton endangerment. The tampering with physical evidence charge was
additionally dismissed in return. Roberson was later sentenced to 18 years on
April 4, 2019, in accordance with the plea agreement.
On January 24, 2022, Roberson filed a post-conviction motion
asserting he unknowingly and unintelligently entered into his plea agreement due
to the ineffective assistance of counsel. Specifically, Roberson argued his trial
counsel failed to file a motion to suppress evidence and properly investigate,
pursue, and advise him of an extreme emotional disturbance (EED) defense and
imperfect self-defense. The trial court denied the motion on March 9, 2022,
because Roberson failed to attach a signed verification to the motion pursuant to
-2- RCr 11.42(2), and the motion was refiled with a proper verification on March 21,
2022. The Commonwealth filed a response on May 2, 2022, and on May 11, 2022,
the trial court denied Roberson’s motion on the merits without an evidentiary
hearing. This appeal followed.
An RCr 11.42 movant must satisfy the two-pronged test laid forth in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984), by demonstrating that his or her counsel was inadequate, and counsel’s
errors prejudiced the case. See also Gall v. Commonwealth, 702 S.W.2d 37, 39
(Ky. 1985). When involving entry of a guilty plea, the movant must prove there
was a reasonable probability that, absent counsel’s deficiency, he or she would not
have pled guilty and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); accord Phon v. Commonwealth,
51 S.W.3d 456 (Ky. App. 2001). A reviewing court “must be highly deferential”
of counsel’s performance, and “the defendant must overcome the presumption that
counsel provided a reasonable trial strategy.” Brown v. Commonwealth, 253
S.W.3d 490, 498-99 (Ky. 2008).
Before addressing the arguments before us, we must first note that,
along with some formatting errors, Roberson’s brief fails to provide a preservation
statement for the claims he raises, and it does not include a word-count certificate
since it exceeds by three pages the limit required by Kentucky Rule of Appellate
-3- Procedure (RAP) 31(G)(2). However, the Commonwealth has asserted no
objection, and due to the relatively short length of the record and the clear nature
of the claims, we elect to ignore the deficiencies and review under the normal
Strickland analysis as opposed to manifest injustice. See Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010).
On appeal, Roberson again asserts he entered into an unknowing and
unintelligent plea agreement due to trial counsel’s errors, the first of those errors
being trial counsel’s failure to seek suppression of evidence. Roberson maintains
that the shooting occurred in a parking lot outside an apartment unit located at 300
Diecks Drive #7, and officers made entry into the apartment before a search
warrant, predicated on a faulty affidavit, was later granted.
The trial court ruled that Roberson failed to identify “anything
specific gathered” pursuant to the warrant which would have been used to convict
him at trial. We agree with this rationale. RCr 11.42(2) mandates a motion to
“state specifically the grounds on which the sentence is being challenged and the
facts on which the movant relies in support of such grounds.” Facts must be pled
with “particularity” otherwise “the trial court cannot tell whether an evidentiary
hearing is necessary.” Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012).
Failure to satisfy this specificity requirement mandates a summary dismissal. RCr
11.42; Roach, 384 S.W.3d at 140. The only mention of any evidence that
-4- Roberson alleges was unlawfully obtained was in reference to cell phones seized at
the scene, but Roberson fails to articulate what exactly was contained on these
phones and how suppression would have secured a more favorable outcome for his
case. Furthermore, as the Commonwealth argues, there is a question as to whether
Roberson would have had proper standing to invoke suppression because he
indicates in his brief he did not reside at the apartment unit searched, and multiple
cell phones, which presumably did not all belong to him, were seized. See Ordway
v. Commonwealth, 352 S.W.3d 584, 592 (Ky. 2011) (citation omitted) (“A
defendant bears the burden of establishing standing to challenge a Fourth
Amendment search.”). Roberson does not otherwise articulate what expectation of
privacy he maintained in what was searched or seized. See Rawlings v. Kentucky,
448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).
Turning to the only remaining claim of error, Roberson argues that
trial counsel failed to sufficiently investigate, pursue, and advise him regarding an
EED defense and imperfect self-defense. This claim is directly and conclusively
refuted by the record, and we further affirm the trial court’s summary denial which
was also predicated on this reasoning. See Cawl v. Commonwealth, 423 S.W.3d
214, 218 (Ky. 2014) (“[A]n evidentiary hearing is not required when the record
refutes the claim of error or when the allegations, even if true, would not be
sufficient to invalidate the conviction.”) (emphasis in original).
-5- During the final pretrial conference on January 29, 2019, trial counsel
explicitly informed the trial court in Roberson’s physical presence that he intended
to pursue a self-defense claim. Trial counsel stated it was the defense’s belief that
McNeil was armed on the night of his death and that an eyewitness would testify
McNeil had fired a gun at the apartment located at 300 Diecks Drive #7
approximately two weeks prior to his death. It was further stated that this witness
would additionally testify he informed Roberson of this incident. On the first, and
ultimately the only, scheduled day of trial, trial counsel asked questions during voir
dire concerning the jury pool’s attitude toward firearm rights and self-defense.
Roberson later accepted a plea offer after the jury was sworn. The
plea agreement forms, along with a very thorough plea colloquy conducted by the
trial court, provide the most conclusive refutation observable within the record.
See Ford v. Commonwealth, 453 S.W.2d 551, 552 (Ky. 1970). The
Commonwealth’s plea offer bears Roberson’s handwritten signature, and the
stipulated facts contained therein clearly state Roberson caused the death of
McNeil “under circumstances in which he acted under the influence of extreme
emotional disturbance as defined by KRS 507.020.” In the moments just after
entry of the plea, the prosecutor indicated they were presented with evidence which
supported an EED defense and self-defense. Specifically, the prosecution
-6- mentioned there was evidence that would support a claim McNeil “provoked”
Roberson into firing at him.
Roberson’s trial counsel signed a “certificate of counsel” contained
within the motion to enter the guilty plea which verified he “fully discussed” the
charges and “any possible defenses” with Roberson and that he believed Roberson
understood. During the colloquy, trial counsel further stated he discussed the
possible outcomes of proceeding to trial, and when asked by the trial court,
Roberson affirmed he told his trial counsel “everything he knew” about his
charges. Roberson also signed the motion to enter the guilty plea, which along
with his own verbal acknowledgments, denied he was in any way mentally
impaired or that he was being “influenced” or “forced” to enter into the agreement
“against [his] will.”
The trial court informed Roberson of his trial counsel’s duties, such as
his duty to investigate the case and pursue defenses “including in this particular
case the claim of self-protection which you all have talked about.” The signed plea
agreement and the colloquy demonstrate Roberson acknowledged and understood,
by pleading guilty, he was waiving his right to present evidence and a defense at a
jury trial. The trial court further informed Roberson that by pleading guilty, he
was indicating he was satisfied with his attorney’s performance and “there [was]
nothing else out there that [he] want[ed] any attorney to do that might have
-7- changed [his] mind or made a difference about [his] decision to enter this guilty
plea.” Immediately thereafter, Roberson affirmed he was satisfied with his trial
counsel’s services, and the trial court read over and explained the terms of the
Commonwealth’s plea offer he signed.
“[T]he representations of the defendant, his lawyer, and the
prosecutor at [an original plea hearing], as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent collateral
proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 1629, 52
L. Ed. 2d 136 (1977). “Solemn declarations in open court carry a strong
presumption of verity.” Id. at 74, 97 S. Ct. at 1629. Roberson has provided no
discussion as to why this plea colloquy and the entry of his plea should be called
into doubt. Roberson only makes general assertions that trial counsel failed to
investigate and discuss his defenses, and he cites various alleged facts and
circumstances he maintains would have advanced an EED defense and self-
defense. But Roberson presents nothing more specific such as a claim that these
alleged facts and circumstances were specifically unknown either to him or trial
counsel, or were otherwise undiscussed, before the entry of his plea. See
Blackledge, 431 U.S. at 74, 97 S. Ct. at 1629 (“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.”).
-8- Regardless, the record demonstrates some of the alleged exculpatory information
Roberson discusses in his brief, relating to McNeil being armed and threatening on
the night of the shooting, were referenced or alluded to either by trial counsel or
the prosecution before or during entry of the plea as previously discussed.
Thus, due to insufficient pleadings and the conclusiveness of the
record, Roberson has failed to satisfy the deficiency prong under the Strickland
analysis, and it is therefore unnecessary to undertake any additional discussion
relating to the prejudice prong. The Hardin Circuit Court’s summary denial of
Roberson’s RCr 11.42 motion without an evidentiary hearing was proper, and we
affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Charles Roberson, pro se Daniel Cameron Wheelwright, Kentucky Attorney General of Kentucky
Matthew F. Kuhn Solicitor General
Rachel A. Wright Assistant Solicitor General Frankfort, Kentucky
-9-