Diontre Martin v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 21, 2024
• Docket: 2022 CA 001285
• Status: Unknown

Opinion

RENDERED: MARCH 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1285-MR

DIONTRE MARTIN APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 12-CR-001046-003

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.

CETRULO, JUDGE: Appellant Diontre Martin (“Martin”) appeals the order of

the Jefferson Circuit Court denying his Kentucky Rule of Criminal Procedure

(“RCr”) 11.42 motion to vacate, set aside, or correct his sentence, which claimed

ineffective assistance of counsel. I. FACTUAL AND PROCEDURAL HISTORY

In February 2012, Martin and two co-defendants committed a home

invasion robbery while armed with handguns. The Louisville Metropolitan Police

Department was dispatched to the scene, and Officer Lamont Washington

(“Officer Washington”) pursued Martin and the two co-defendants upon arrival.

During the pursuit, Martin fired three rounds from his handgun at Officer

Washington, striking him in the upper-left chest and on his thumb, causing serious

physical injury.

In July 2014, Martin pled guilty to attempted murder and three counts

of first-degree robbery (the home invasion involved three victims). The

Commonwealth recommended a sentence of 20 years for each count, to run

concurrently for a total of 20 years, which the circuit court accepted. The day

before Martin entered his plea, one of his co-defendants, Dominique Gosnell

(“Gosnell”), pled guilty to three counts of second-degree robbery, second-degree

burglary, second-degree assault, fleeing or evading police, possession of a handgun

by a minor, and theft by unlawful taking over $500. Gosnell received sentences of

15 years and two years, to run consecutively for a total of 17 years. Two months

later, the other co-defendant, Donald Jackson (“Jackson”), pled guilty to three

counts of facilitation to robbery and received a sentence of ten years, probated for

five years.

-2- In August 2015, Martin, pro se, filed an RCr 11.42 motion to vacate,

set aside, or correct his sentence, claiming his trial counsel was ineffective. The

motion asserted that trial counsel advised him to plead guilty without investigating

the facts of the case; that he had no choice but to plead guilty because of his

counsel’s performance; and he alleged eight instances of trial counsel’s

ineffectiveness. Martin requested an evidentiary hearing concerning any material

issues which could not be conclusively disproved by an examination of the record.

Martin also asked the circuit court to appoint him counsel and provide time for that

counsel to supplement his motion, if necessary. Additionally, Martin submitted an

affidavit from Gosnell stating that Martin was wrongly accused because he had

been pressured to go to the victims’ house in February 2014; he had been

intoxicated during the incident; and he did not take anything from the victims.

Gosnell stated that he would be willing to testify to Martin’s innocence “in the

future.”

The next month, the circuit court appointed counsel to assist with

Martin’s RCr 11.42 motion,1 and two years later, in 2017, a private attorney

entered an appearance for Martin.2 That attorney then withdrew in 2021, and the

1 Once the circuit court appointed the attorney, the record was silent until Martin hired private counsel. 2 Likewise, after Martin hired private counsel, the record was silent until that attorney withdrew.

-3- circuit court again appointed counsel to assist Martin. In July 2022, the newly

appointed counsel reviewed the motion and record and found that Martin had

sufficiently pled his claims. As such, that counsel filed a notice of submission on

the pleadings, asking the circuit court to consider Martin’s RCr 11.42 motion and

provide the relief requested.

Upon review, the circuit court denied Martin’s motion without an

evidentiary hearing, finding his claims were insufficiently alleged or otherwise

disproved by the record. In its order, the circuit court explained that Martin failed

to specifically state the grounds on which he was challenging his sentence because

Martin’s pleading included only “scant factual support and mostly amount[ed] to

bald allegations.” Nevertheless, the circuit court analyzed each of Martin’s eight

arguments pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984), but still found each to be meritless. Martin appealed,

claiming the circuit court should have conducted an evidentiary hearing and that

his post-conviction counsel was ineffective for failing to supplement his motion.

II. STANDARD OF REVIEW

An evidentiary hearing is required for an RCr 11.42 motion only when

“there is a material issue of fact that cannot be conclusively resolved, i.e.,

conclusively proved or disproved, by an examination of the record.” Fraser v.

Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citations omitted).

-4- On appeal, this Court must determine whether the allegations

contained in the RCr 11.42 motion are “conclusively refuted by the record” and

whether, “if true, would invalidate the conviction.” Lewis v. Commonwealth, 411

S.W.2d 321, 322 (Ky. 1967) (citations omitted). An evidentiary hearing is not

required where “the face of the record as a whole” refutes the allegations. Sparks

v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (citation omitted).

As to Martin’s claims of ineffective assistance of post-conviction

counsel, he recognizes those issues were not properly preserved and requests

palpable error review. RCr 10.26 provides that

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

III. ANALYSIS

Martin claims the circuit court erred when it failed to hold an

evidentiary hearing on his RCr 11.42 motion. Additionally, Martin argues his

post-conviction counsel from 2015 was ineffective because the counsel represented

him for two years and never supplemented his RCr 11.42 motion. Likewise,

Martin argues that the private counsel he hired in 2017 was ineffective because that

counsel never supplemented the motion, although he represented Martin for four

years.

-5- A. Trial Counsel

First, Martin claims the circuit court erred when it failed to hold an

evidentiary hearing on his RCr 11.42 motion regarding trial counsel. Specifically,

Martin claims that a hearing was required to prove he “intelligently entered” the

plea agreement. In such cases, our Supreme Court has found, “the voluntariness of

[a] plea depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases[.]” Roach v. Commonwealth, 384 S.W.3d

131, 140 (Ky. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88

L. Ed. 2d 203 (1985)).

To prove that counsel’s advice met that standard, and “to be entitled

to relief under RCr 11.42, the movant must ‘state specifically the grounds on which

the sentence is being challenged and the facts on which the movant relies in

support of such grounds.’” Id. (quoting RCr 11.42(2)). As such, “[c]onclusory

allegations that counsel was ineffective without a statement of the facts upon

which those allegations are based do not meet the rule’s specificity standard and so

‘warrant a summary dismissal of the motion.’” Id. (citations omitted).

Our Supreme Court has been clear that an RCr 11.42 motion does not

require a hearing when the claims are refuted by the record. Sanborn v.

Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other grounds by

Leonard v. Commonwealth, 279 S.W.3d 151, 158-59 (Ky. 2009). “A hearing is

-6- also unnecessary where the allegations, even if true, would not be sufficient to

invalidate the conviction.” Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky.

1998) (citing Brewster v. Commonwealth, 723 S.W.2d 863, 865 (Ky. App. 1986)).

Likewise, if the claims are not alleged with the requisite particularity, the circuit

court “cannot tell whether an evidentiary hearing is necessary” and dismissal of the

motion is warranted without a hearing. Roach, 384 S.W.3d at 140.

As the circuit court detailed in its order denying Martin’s motion, each

of the eight allegations either lacked requisite particularity or was refuted by the

record. First, Martin claimed his trial counsel was ineffective because she failed to

call witnesses who would have testified that Martin had no part in the crime other

than being present while intoxicated. As the circuit court noted, aside from

Gosnell, Martin failed to specify who he would have called to testify and what they

would have said, which was not sufficient to prove ineffectiveness. See Williams

v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011) (RCr 11.42 movant failed to

specify what evidence the witnesses would have provided, which was fatal to his

claim that counsel was ineffective for failing to subpoena them.).

Martin referenced only Gosnell, who, according to his affidavit,

would testify “in the future” that Martin was intoxicated while participating in the

robbery and had kept no proceeds from the crime. Despite that assertion, Martin

provided no evidence, and the affidavit did not state, that Gosnell would have

-7- agreed to testify before Martin had entered his guilty plea in 2014 and that if he

had agreed, Martin’s trial counsel knew of such testimony. Indeed, Gosnell

specified that he would testify “in the future.” Further, Gosnell’s affidavit

referenced only Martin’s participation in the robbery, not Martin’s participation in

the attempted murder of the police officer, which was the primary reason for

Martin’s stiffer penalty than his co-defendants.

As such, the face of the record refuted that Gosnell was willing to

testify on Martin’s behalf prior to entering the plea agreements; therefore, trial

counsel did not fail to call witnesses – namely, Gosnell – who would have testified

that Martin “had no part in the crime other than being present while intoxicated.”

Likewise, Gosnell did not state he would testify regarding the attempted murder

charge, so testimony regarding only the robbery would not have invalidated

Martin’s sentence and thereby did not rise to the level of “ineffective.” See

Bowling, 981 S.W.2d at 549.

Second, Martin asserted that trial counsel was ineffective because she

failed to move to suppress Gosnell’s and Jackson’s inculpatory statements against

him on the basis that they were coerced. However, Martin failed to cite any

inculpatory statements or instances of coercion with any particularity. Similarly, in

Roach, the defendant claimed in his RCr 11.42 motion that “the girlfriend’s

consent was ‘coerced.’” Roach, 384 S.W.3d at 140. The defendant simply

-8- asserted that “the police somehow threatened the girlfriend, but he fail[ed] to allege

the threat with any particularity, and it is that level of factual specificity that

RCr 11.42(2) requires[.]” Id. Therefore, our Supreme Court found that the

defendant’s motion “did not satisfy [the] specificity requirement, [and] it was

subject to “summary dismissal[.]” Id. Likewise, here, Martin failed to allege the

inculpatory statements – much less the “coercion” – with any particularity, and that

claim was subject to dismissal without a hearing.

Third, Martin claimed that his trial counsel failed to consult with an

independent ballistics expert before trial, whom he claims would have testified that

Martin “only had 1 of 3 components of alleged gunshot residue on his person,

which tended to show that he had not fired a weapon [that day].” Again, Martin

failed to assert the claim with requisite particularity. See id. Martin simply

speculated as to what an independent ballistics expert might have concluded and

testified. Martin did not indicate whether such expert existed, much less whether

any expert had reviewed the evidence and shared Martin’s assertions.

Additionally, at trial, the Commonwealth’s ballistics witness testified that it could

not determine whether Martin had fired a gun the day of the incident because its

gunshot residue analysis was inconclusive. It is unlikely that a second witness

testifying to a similar result would have invalidated the outcome of the case. See

-9- Bowling, 981 S.W.2d at 549. Again, Martin’s allegation did not meet the standard

for ineffectiveness.

Fourth, Martin claimed that trial counsel had failed to file a motion in

limine3 regarding the facts that: (1) only one of three alleged witnesses picked

Martin as the alleged perpetrator; and (2) Martin had no “fruits of the alleged

robbery.” The circuit court noted that those “facts” were not submitted to the jury;

however, if they had been, it likely would have been the Commonwealth who

would have filed a motion in limine regarding them. Indeed, even if those

assertions could have been substantiated, they would not have been subject to

exclusion by a motion in limine. Alternatively, such assertions during a plea

colloquy would have been irrelevant, as the circuit court needed to determine only

whether the plea was voluntary, knowing, and intelligent. As such, the record, as

well as relevant legal concepts, refuted this assertion.

Fifth, Martin asserted that his trial counsel had failed to investigate the

plea agreements of Gosnell and Jackson, which would have shown that “they had

received better deals” than Martin. Instead, Martin claimed, trial counsel led him

to believe that Gosnell and Jackson were serving 85% sentences,4 when they were

actually serving 20% sentences. However, the record indicated that Martin had

3 Motions in limine seek exclusion of evidence from being presenting during trial. 4 Sentences in which the defendants would serve 85% before being eligible for parole.

-10- admitted to a more serious crime – attempted murder of a police officer; therefore,

knowing his co-defendants’ plea agreements, which contained charges regarding

only the robbery, would not have been useful for comparison. Further, Martin

failed to assert how additional knowledge of his co-defendants’ plea agreements

would have affected his willingness to take his own plea. Martin’s decision to

plead guilty was independent from the co-defendants,’ and the Commonwealth was

not required to offer similar penalties to each defendant. Again, the record refuted

Martin’s assertion.

Sixth, Martin claimed his trial counsel was ineffective because she

misinformed him that Gosnell and Jackson were prepared to testify against him;

however, Martin failed to make that allegation with requisite particularity. While

Gosnell’s affidavit stated he was willing to testify in support of Martin in 2022, it

did not state that he was unwilling to testify against Martin in 2014. Further, the

circuit court noted that the Commonwealth could have called Gosnell or Jackson to

testify at trial regardless of whether they had prepared to do so because the plea

agreements extended the opportunity to testify against one another in exchange for

shorter sentences. Therefore, the record disproved that telling Martin that his co-

defendants could testify against him was “misinformation.” As the circuit court

stated, it likely would have been ineffective if Martin’s trial counsel had not told

him Gosnell and Jackson were prepared to testify against him.

-11- Seventh, Martin asserted that his trial counsel failed to have Martin

psychologically evaluated, despite his history of mental and emotional issues.

However, again, Martin failed to adequately articulate the mental or emotional

issues he had, their relevance to the case, and what an expert could have testified to

regarding the same. Such assertion, therefore, lacked the requisite specificity

RCr 11.42 requires. See Roach, 384 S.W.3d at 140.

Eighth, and finally, Martin claimed his trial counsel was ineffective

for refusing to step aside as counsel when Martin’s family told her that they wished

to hire private counsel. However, Martin failed to present any specific facts to

support that claim: he provided no evidence that he had hired private counsel, and

no counsel entered an appearance on his behalf. A mere statement that the family

wished to hire private counsel was not sufficient grounds for a public defender to

move to withdraw. Again, the assertion was disproved by the record.

The circuit court carefully reviewed each of Martin’s allegations and

properly dismissed each based on the face of the record. See Sanborn, 975 S.W.2d

at 909. As such, an evidentiary hearing was not required. See Bowling, 981

S.W.2d at 550-51.

B. Post-Conviction Counsel

Next, Martin argues that his post-conviction counsel was ineffective

for failing to supplement his RCr 11.42 motion. Specifically, Martin claims his

-12- post-conviction counsel should have raised three new claims for his original

RCr 11.42 motion: that trial counsel failed to inform him of (1) the lesser-included

offense of attempted robbery, (2) the provisions of double jeopardy, and (3) the

elements of attempted murder.

Although Martin introduces the claim against his post-conviction

counsel, his brief largely focuses on those three new claims for ineffective

assistance of his trial counsel. However, the merits of the claims against his trial

counsel are not properly before this Court because Martin did not raise them before

the circuit court. See Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999)

(“[a] new theory of error cannot be raised for the first time on appeal.”). Instead,

the sole issue is whether there is a valid claim that Martin’s post-conviction

counsel was ineffective. Appellant concedes that this issue was not preserved, and

requests palpable error review.

First, Martin acknowledges that Kentucky Courts do not recognize

ineffective assistance of post-conviction counsel as a valid claim. Therefore, he

asks this Court to implement federal law, which allows claimants to pursue such

claims “as a basis for cause and prejudice for the failure to preserve issues of

ineffective assistance of counsel.”

However, our Supreme Court previously addressed a similar issue in

Bowling, 981 S.W.2d 545. There, it clarified that

-13- [t]he purpose of an RCr 11.42 proceeding is to review a judgment and sentence for constitutional validity of the proceedings prior to judgment or in the sentence and judgment itself. The rule simply provides for a collateral attack on the sentence. RCr 11.42(1). Assuming that this issue [regarding effectiveness of post-conviction counsel] could be considered under RCr 11.42, Appellant concedes that it was not presented to the trial court for consideration. In the absence of palpable error affecting Appellant’s rights, this issue is not reviewable on appeal. Todd v. Commonwealth, Ky., 716 S.W.2d 242 (1986).

Notwithstanding the procedural deficiency, Appellant’s argument is without merit. In Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991), the United States Supreme Court held that “[t]here is no constitutional right to an attorney in state post- conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” (citations omitted); See also Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L. Ed. 2d 1 (1989).

Bowling, 981 S.W.2d at 552.

As an intermediate appellate court, we are bound by our Supreme

Court’s decision in Bowling. See Kentucky Supreme Court Rule 1.030(8)(a) (“The

Court of Appeals is bound by and shall follow applicable precedents established in

the opinions of the Supreme Court and its predecessor court.”). Therefore, we, too,

must find that Martin does not have a valid claim regarding his post-conviction

counsel.

-14- IV. CONCLUSION

The Jefferson Circuit Court did not err when it denied Martin’s

RCr 11.42 motion without a hearing. Additionally, Martin’s claim that post-

conviction counsel was ineffective is without merit. As such, the order of the

Jefferson Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Diontre Martin, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

-15-