Frederick L. Miller v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: February 2, 2022
• Docket: 2020 CA 000670
• Status: Unknown

Opinion

RENDERED: FEBRUARY 4, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0670-MR

FREDERICK L. MILLER APPELLANT

APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 15-CR-00751

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, DIXON, AND McNEILL, JUDGES.

McNEILL, JUDGE: Appellant, Frederick L. Miller (“Miller”), pro se, appeals the

order of the Warren Circuit Court denying his motion to vacate, set aside, or

correct his sentence pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42.

Following a careful review of the record and the law, we affirm. I. BACKGROUND

On September 23, 2015, Miller was indicted by the Warren County

Grand Jury on 14 counts of criminal activity primarily relating to possessing and

trafficking in controlled substances. Miller was also indicted on one count of

being a persistent felony offender in the first degree (PFO I). Following a jury

trial, Miller was convicted of seven counts of trafficking in a controlled substance

in the first degree, one count of possession of drug paraphernalia, one count of

operating a motor vehicle on a suspended or revoked operator’s license, and one

count of being a persistent felony offender in the first degree (PFO I). Due to the

PFO enhancement, Miller was sentenced to 18 years’ imprisonment.

The PFO I charge and subsequent jury verdict against Miller were

predicated on the following convictions: a December 23, 2009 conviction for

unlawful transaction with a minor in the second degree in Case No. 03-CR-00204;

an April 2, 2004 conviction for failure to register as a sexual offender in Case No.

03-CR-00014, enhanced by a conviction for PFO I in Case No. 03-CR-00379; a

November 18, 1987 conviction for trafficking in a schedule two narcotic controlled

substance in Case No. 87-CR-00390; a June 4, 1987 conviction for criminal

attempt to commit sodomy in the first degree and being a persistent felony offender

in the second degree in Case No. 86-CR-00190; and a February 24, 1982

-2- conviction for two counts of wanton endangerment in the first degree in Case No.

81-CR-00452.

During the trial, and later, between the jury verdict and the penalty

phase of his proceedings, Miller’s counsel moved for a directed verdict of acquittal

on the PFO I charge. The circuit court denied those motions, and Miller was

ultimately convicted and sentenced. Miller appealed the circuit court’s denial of

his motions for a directed verdict, and this Court affirmed on direct appeal.1

On July 16, 2018, Miller filed his motion pursuant to RCr 11.42. The

motion was denied by order of the Warren Circuit Court on March 23, 2020, and

this appeal followed.

II. STANDARD OF REVIEW

“We review the trial court’s denial of an RCr 11.42 motion for an

abuse of discretion.” Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App.

2014). On an appeal from an order denying an RCr 11.42 motion without an

evidentiary hearing, we review “whether the motion on its face states grounds that

are not conclusively refuted by the record and which, if true, would invalidate the

conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). A

hearing is only required if an RCr 11.42 motion raises an issue that cannot be

1 Miller v. Commonwealth, No. 2016-CA-000748-MR, 2017 WL 3129216 (Ky. App. Jul. 21, 2017).

-3- determined on the face of the record. RCr 11.42(5); Fraser v. Commonwealth, 59

S.W.3d 448, 455 (Ky. 2001). A trial court’s findings will not be disturbed absent a

finding of clear error. Commonwealth v. Payton, 945 S.W.2d 424, 425 (Ky. 1997).

III. ANALYSIS

On appeal, Miller argues that he received ineffective assistance of

counsel when: (1) his trial counsel failed to object to improper character evidence

and inadmissible hearsay statements; (2) his trial counsel failed to call a witness

from the Department of Corrections to explain that the predicate offense for the

PFO I charge expired outside the statutory timeframe to qualify as a predicate

offense; (3) his trial counsel failed to investigate his prior convictions and to put

forth mitigating evidence at the penalty phase of his trial proceedings; (4) his trial

counsel failed to object to jury instructions regarding the PFO I charge; (5) his trial

counsel failed to object to alleged prosecutorial misconduct; and (6) his trial

counsel denied him of his right to testify under the Fifth Amendment to the United

States Constitution. Miller also argues that he was entitled to an evidentiary

hearing on the claims below. In addition, Miller appears to argue that his appellate

counsel on direct appeal was ineffective.

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984), the United States Supreme Court set forth a two-part test for

ineffective assistance of counsel claims. A movant is only entitled to relief when

-4- his counsel’s performance was both deficient and actually prejudicial to the

outcome in his case. Id. at 687, 104 S. Ct. at 2064. To prove that counsel was

deficient, the defendant must show that “counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. With regard to prejudice, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.

Ct. at 2068.

A. Trial Counsel’s Failure to Object to Testimony of Whitney Taylor and Rena Martin

Miller argues that his trial counsel was ineffective by failing to object

to improper character evidence provided through the trial testimony of Whitney

Taylor and Rena Martin. At trial, both witnesses were called to testify on behalf of

the Commonwealth. Taylor testified that she had previously lived with Miller and

was romantically involved with him for a brief period, but that their relationship

was eventually limited to the business of buying and selling drugs. She testified

that she had purchased cocaine from Miller in the past, and that Miller had taught

her how to sell drugs, but that she did not share any of the profits of her drug sales

with Miller.

-5- Martin testified that she had also lived with Miller and was in a

romantic relationship with him for a brief period. She also testified that Miller

would advise her on how to cook and sell drugs, and that she would buy drugs

from Miller to sell to other individuals. During both Taylor’s and Martin’s

testimonies, the Commonwealth also played for the jury recordings of wiretapped

phone conversations between the two witnesses and Miller regarding drug activity.

Miller contends that the Commonwealth elicited testimony from

Taylor and Martin to portray him as a “habitual drug dealer.” Miller’s contention

that his counsel was ineffective for failing to object to the testimony of Taylor and

Martin is based on Kentucky Rule of Evidence (KRE) 404, which generally

prohibits the use of evidence of a person’s character or bad acts to prove action in

conformity therewith on a particular occasion.

The circuit court found that Miller failed to explain how the testimony

of Taylor and Martin prejudiced him. RCr 11.42(2) provides that a motion “shall

state specifically the grounds on which the sentence is being challenged and the

facts on which the movant relies in support of such grounds.” When a motion

under RCr 11.42 fails to state grounds upon which relief may be granted, the

motion may be properly denied without an evidentiary hearing. Fraser, 59 S.W.3d

at 455. We agree with the circuit court that Miller did not specify any facts to

support an argument that the testimony of Taylor and Martin was prohibited

-6- character evidence under KRE 404, nor did he provide any more than the

conclusory allegation that the Commonwealth used the testimony to “portray

Miller as a habitual drug dealer and deliberately and methodically [elicit]

inadmissible testimony relating to past drug dealing by Miller.”

Moreover, the record does not support Miller’s claim that his trial

counsel failed to object on the grounds that Taylor’s or Martin’s testimony

constituted impermissible character evidence. Prior to Taylor taking the stand,

Miller’s trial counsel did formally object to Taylor’s testimony in a bench

conference:

Judge, as far as Ms. Taylor goes, I know that they are going to question her about some drug transactions, things like that. In part of the e-mail I received from [the Commonwealth] regarding Ms. Taylor he indicated there would be testimony regarding Mr. Miller teaching her how to sell drugs. I would object to any line of testimony or any line of questioning in that manner. I do think that it goes beyond the scope of what the proof has been in this case . . . and I think that would go more to his character, more [KRE] 404(b), which we never received notice of.

The Commonwealth responded by explaining that Taylor’s testimony was relevant

to its theory of the case because Taylor was part of an alleged drug syndicate

involving Miller. The circuit judge overruled the objection of Miller’s counsel,

noting that he believed Taylor’s testimony was relevant to the concept of Miller

being involved in a criminal enterprise. Similarly, prior to Martin’s testimony,

-7- Miller’s counsel approached the bench and stated a nearly identical objection on

the record. The circuit judge overruled the objection on the same grounds.

Accordingly, because Miller’s trial counsel did object to Taylor’s and

Martin’s testimony based on improper character evidence, we find no error in her

representation in this respect, and we affirm the finding of the circuit court with

respect to this issue.

B. Trial Counsel’s Failure to Object to Recording of Conversation with Deonta Yarbrough

Next, Miller alleges that his trial counsel was ineffective by failing to

object to a recording of a telephone conversation between Miller and Deonta

Yarbrough that was played at trial. Miller argues that because neither he nor

Yarbrough testified at trial, there was no way to verify that the voice on the other

end of the recording was Yarbrough’s.

Again, Miller fails to state with specificity the evidence on the

recording that would have been precluded by a successful objection by counsel, or

how he was prejudiced by his counsel’s decision not to object to the recording.

“Conclusory 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.” Roach v.

Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (internal quotation marks

omitted).

-8- Miller further argues that regardless of the performance of his trial

counsel, the circuit court abused its discretion by allowing the recording to be

considered. “It is not the purpose of RCr 11.42 to permit a convicted defendant to

retry issues which could and should have been raised in the original proceeding,

nor those that were raised in the trial court and upon an appeal considered by this

court.” Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009) (quoting

Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972)). The claim that the

circuit court abused its discretion by allowing the introduction of certain evidence

at trial is certainly an issue which could have been pursued on direct appeal, rather

than in a collateral attack. Accordingly, we affirm the finding of the circuit court

with respect to these issues.

C. Claims Regarding PFO I Charge

Miller raises several issues related to the PFO I charge that enhanced

his sentence. The Commonwealth argues that each of Miller’s allegations is

merely an attempt to reconstruct the arguments he made on direct appeal. The

circuit court addressed Miller’s arguments regarding his PFO I conviction with a

single sentence in its order denying relief under RCr 11.42: “The movant’s

arguments regarding his PFO I conviction were already addressed by the Court of

Appeals and this [c]ourt will not restate that Court’s opinion.”

This Court addressed Miller’s arguments on direct appeal as follows:

-9- Miller also argues that the conviction in Case No. 03-CR-00014 did not qualify as a predicate for the PFO I charge because service of the sentence was not completed within five years of the commission of the offenses in the current case. During the trial, the Commonwealth had Detective Gordon Turner testify based on official court documents and documents from the Department of Corrections on Miller’s prior criminal history. The evidence indicated that Miller was discharged from further service of his sentence in Case No. 03-CR-00014 on December 23, 2009. Miller contends that the date of discharge is not the operative date for determining the date of completion of service for purposes of KRS 532.080(3)(c)(1). He argues that the Commonwealth must establish the date of completion of a sentence under the statute beyond a reasonable doubt. This would include the application of the various provisions involving service credit available while imprisoned, such as good time credit, that must be applied to determine completion of service. However, he has presented no other legal authority directly supporting this interpretation of the statute.

Miller, 2017 WL 3129216, at *2 (footnotes omitted). On direct appeal, Miller

argued that certain prior convictions were improperly used as the predicate

offenses supporting the PFO I charge.

In the case sub judice, Miller alleges that his trial counsel was

ineffective by failing to put forth mitigating evidence at the penalty phase of the

proceedings to refute sentencing enhancement of the PFO I charge against him.

Specifically, he claims that his counsel should have called a witness from

Probation and Parole or the Department of Corrections to explain that a prior

conviction used for the PFO I charge could not qualify as a predicate offense.

-10- We agree with the circuit court that these arguments are mere

reiterations of those raised on direct appeal. Moreover, Miller’s trial counsel filed

a total of three motions to prohibit the use of Miller’s convictions in No. 03-CR-

00014, No. 03-CR-00204, and No. 03-CR-00379 for purposes of penalty

enhancement as a persistent felony offender. Accordingly, we hold that the circuit

court did not abuse its discretion when it denied Miller’s RCr 11.42 motion

without an evidentiary hearing.

Miller next argues that the prosecutor engaged in misconduct by

knowingly misstating the law regarding the PFO I charge and that his trial counsel

was ineffective by failing to object to such alleged prosecutorial misconduct.

Again, “[i]t is not the purpose of RCr 11.42 to permit a convicted defendant to

retry issues which could and should have been raised in the original proceeding,

nor those that were raised in the trial court and upon an appeal considered by this

[C]ourt.” Thacker, 476 S.W.2d at 839. Miller could have raised the issues relating

to prosecutorial misconduct on direct appeal. Thus, these issues are an

inappropriate subject of an RCr 11.42 motion and not properly before the Court.

See Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990); see also Bowling

v. Commonwealth, 80 S.W.3d 405, 416 (Ky. 2002).

Finally, Miller argues that he was denied his Fifth Amendment right

to testify, claiming that he would have testified to when he served out his

-11- convictions in No. 03-CR-00014 and No. 03-CR-00204. In denying relief based

on this allegation, the circuit court noted that Miller’s desired testimony regarding

his prior convictions was introduced through an avowal, which consisted of the

exact records to which Miller would have testified. Accordingly, the circuit court

did not err in denying relief without an evidentiary hearing on this issue because

there were no material issues of fact that could not be “conclusively proved or

disproved, by an examination of the record.” Fraser, 59 S.W.3d at 452.

D. Ineffective Assistance of Appellate Counsel

Miller now raises similar claims of ineffective assistance of counsel

with respect to his appellate counsel. Specifically, he appears to argue that his

counsel on direct appeal neglected to raise any issues regarding the testimony of

Whitney Taylor or Rena Martin, or the admissibility of the recorded telephone

conversation between Miller and Yarbrough. The circuit court addressed each of

Miller’s ineffective assistance of counsel arguments with respect to his trial

counsel in the order denying his motion for RCr 11.42 relief. However, the circuit

court’s order was silent as to any claims concerning appellate counsel.

The Commonwealth argues that Miller did not raise the issue of

ineffective assistance of appellate counsel (IAAC) in the trial court, and that it does

not construe his argument on appeal to encompass IAAC claims. This is an

important distinction. If the court did not rule on Miller’s IAAC claims, we may

-12- not review them. See Smith v. Commonwealth, 438 S.W.3d 392, 396 (Ky. App.

2014) (remanding a post-conviction matter because the trial court failed to rule on

the defendant’s ineffective assistance of appellate counsel claim, which was raised

in his RCr 11.42 motion). Thus, our review is limited to whether the issue was

actually raised in the trial court, not to determine whether the issue was properly

preserved, but more fundamentally to determine whether the trial court was

obligated to issue a ruling on that issue.

In Miller’s RCr 11.42 motion, there was only one discernable instance

in which Miller even arguably alleged ineffective assistance of appellate counsel:

Counsel was ineffective and movant was deprived of his rights under the 6th and 14th Amendments of the U.S. Constitution were [sic] counsel and appellant counsel failed to object and preserve improper character evidence and inadmissible hearsay statement by a witness.

The reference to “appellant” counsel could arguably be construed as misspelling of

“appellate” or as simply a reference to Miller as an appellant, although the brief in

question was filed in the trial court. To construe this as a reference to “appellate”

counsel, however, would require this Court to ignore considerable context. Miller

never again mentioned his direct appeal in his RCr 11.42 brief in the trial court.

His motion contains no reference to his appellant’s brief on direct appeal, and is

silent as to the arguments made and omitted. Even within the single sentence in

his trial court filing outlined above, Miller’s references to a failure to “object and

-13- preserve” improper evidence imply that he is referring only to trial counsel.

Finally, it would be logically inconsistent for Miller to refer to trial counsel’s

failure to preserve issues while also alleging his appellate counsel was ineffective

for failing to raise an admittedly unpreserved issue on direct appeal. We are

persuaded by the Commonwealth’s argument that Miller did not raise this issue in

the trial court. Therefore, the trial court was not required to address the issue in its

March 23, 2020 order. Likewise, we are not required to address the merits here.

“An appellate court is without authority to review issues not raised in or decided

by the trial court.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky.

2009) (internal quotation marks omitted). The trial court did not err by omitting

this issue from its March 23, 2020 order denying Miller’s RCr 11.42 motion.

For the foregoing reasons, the Warren Circuit Court order denying

Miller’s RCr 11.42 motion is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Frederick L. Miller, pro se Daniel Cameron Central City, Kentucky Attorney General of Kentucky

Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

-14-