Justin Hartnett v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 9, 2023
• Docket: 2021 CA 000851
• Status: Unknown

Opinion

RENDERED: MARCH 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0851-MR

JUSTIN HARTNETT APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 17-CR-00835

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Justin Hartnett appeals from the denial of his Kentucky

Rule of Criminal Procedure (RCr) 11.42 motion. We affirm.

Hartnett was indicted on one count of rape in the first degree and one

count of sexual abuse in the first degree. Each charge alleged Hartnett had

engaged in a continuing course of conduct over several years with his

stepdaughter, who was less than twelve years old. See Kentucky Revised Statutes (KRS) 501.100 (discussing committing an offense via a continuing course of

conduct); KRS 510.040 (defining rape in the first degree).

Hartnett, via counsel, filed a motion to suppress a confession he gave

to the police. After holding a hearing, the trial court denied the motion. Hartnett

and the Commonwealth then reached a plea agreement, which called for Hartnett

to receive a total sentence for both charges of twenty years, the minimum sentence.

See KRS 510.040(2) (making rape in the first degree a Class A felony if the victim

is less than twelve); KRS 532.060(2)(a) (setting the minimum sentence for a Class

A felony at twenty years’ imprisonment).

The trial court sentenced Hartnett in accordance with the plea

agreement. Hartnett later submitted a pro se RCr 11.42 motion.1 After the trial

court denied it without holding a hearing, Hartnett filed this appeal.

Hartnett’s scattershot brief is not always clear, but we perceive that he

raises three main issues. First, he contends his counsel’s ineffectiveness rendered

his plea involuntary, such as counsel’s alleged failure to conduct an adequate

investigation. Second, he contends his counsel was ineffective for not raising a

double jeopardy argument. Finally, he contends the trial court erred by not

1 Hartnett actually submitted two documents purporting to each be an RCr 11.42 motion, one handwritten and one typed. The trial court seemed to deem both to be one omnibus RCr 11.42 motion, even though they are not identical. It is improper to submit successive RCr 11.42 motions, Sanders v. Commonwealth, 339 S.W.3d 427, 438 (Ky. 2011), but we decline to examine further whether Hartnett did so since the Commonwealth does not raise that argument.

-2- appointing counsel. We have examined the parties’ briefs and will address the

facts and arguments necessary to resolve the pertinent issues but will not unduly

lengthen this Opinion by exploring the stray remarks in the briefs. Any arguments

not discussed herein are fatally underdeveloped, redundant, or otherwise lack

merit.

As we have held:

Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. If an evidentiary hearing is not held . . . our review is limited to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.

Smith v. Commonwealth, 438 S.W.3d 392, 394-95 (Ky. App. 2014) (internal

quotation marks and citations omitted).

A trial court must hold a hearing on an RCr 11.42 motion “if there is a

material issue of fact that cannot be conclusively resolved, i.e., conclusively

proved or disproved, by an examination of the record. The trial judge may not

simply disbelieve factual allegations in the absence of evidence in the record

refuting them.” Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001)

(citations omitted). But “[m]otions which fail adequately to specify grounds for

relief may be summarily denied, as may be motions asserting claims refuted or

-3- otherwise resolved by the record.” Commonwealth v. Pridham, 394 S.W.3d 867,

874 (Ky. 2012).

Since he entered a guilty plea, to establish prejudice Hartnett must

show “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.” Sparks v. Commonwealth, 721 S.W.2d 726, 728 (Ky. App. 1986). A mere

“conclusory allegation to the effect that absent the error the movant would have

insisted upon a trial is not enough”; instead, Hartnett must “allege facts that, if

proven, would support a conclusion that the decision to reject the plea bargain and

go to trial would have been rational, e.g., valid defenses, a pending suppression

motion that could undermine the prosecution’s case, or the realistic potential for a

lower sentence.” Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012).

We begin our analysis of Hartnett’s involuntary plea claim by noting

that, standing alone, “advice by a lawyer for a client to plead guilty is not an

indication of any degree of ineffective assistance.” Beecham v. Commonwealth,

657 S.W.2d 234, 236-37 (Ky. 1983). Counsel is required to perform a reasonable

investigation under the circumstances. See, e.g., Commonwealth v. Tigue, 459

S.W.3d 372, 394 (Ky. 2015).

-4- Hartnett faults his counsel for not conducting additional investigation

based on the scientific and medical evidence, but he has not shown what additional

investigation was required or what crucial information more investigation would

have yielded. Sperm found on the victim’s abdomen contained Hartnett’s DNA.

The fact that there was also another individual’s DNA present does not exonerate

Hartnett,2 despite his vehement argument to the contrary. Someone else’s

inappropriate conduct toward the victim would not impact Hartnett’s culpability; if

there is evidence that two people committed a crime, each would be guilty. And,

given the generally damning nature of the scientific evidence, it is unclear how

counsel spending additional time going over it with Hartnett, as he now insists

should have occurred, would have made it “rational” for him to have rejected the

Commonwealth’s lenient plea offer. Stiger, 381 S.W.3d at 237.

Similarly, we disagree with Hartnett that a medical examination of the

victim yielded exculpatory information necessitating additional investigation. In

plain English, the victim’s intact hymen does not mean that she was not raped.

Only slight penetration is required to constitute sexual intercourse

under KRS 510.010(8), and rape in the first degree occurs under KRS

2 Though the lab report does not so state with specificity, it appears to indicate that the DNA of the second person was female as the report states that the DNA profile “is a mixture of at least two individuals. The male DNA profile matches Justin Hartnett . . . .” Record (R.) at 154. (emphasis added).

-5- 510.040(1)(b)2. when a person engages in sexual intercourse with a person less

than twelve. Thus, a rape victim can have an intact hymen. See, e.g., Reusser v.

Commonwealth, No. 2020-SC-0202-MR, 2022 WL 574424, at *6 (Ky. Feb. 24,

2022) (unpublished and cited only as an illustration) (“[T]he legal definition of

sexual intercourse does not require a finding of penetration significant enough to

reach and tear the hymen, but rather specifies sexual intercourse is accomplished

by penetration ‘however slight.’”); Collins v. Commonwealth, 951 S.W.2d 569,

574 (Ky. 1997) (discussing an expert’s opinion that “it was not uncommon for

women who have had numerous sexual encounters to still have a hymen. In fact,

Dr. Bates commented that approximately fifty percent of the sexually active

women she examined retained a hymen”); 75 C.J.S. Rape § 105 (2023)

(“Evidence of an intact hymen is not conclusive proof that no penetration

occurred.”). That conclusion is strengthened by the fact that Hartnett admitted to

the police that he had penetrated the victim’s vagina with his penis but – in a

seeming attempt to minimize his culpability – protested that the penetration was

not deep.

Tellingly, Hartnett does not specify with necessary precision what

information helpful to his case additional investigation would likely have yielded.

For example, Hartnett argues counsel should have interviewed his parents and the

victim’s teacher and friends. But Hartnett cannot show what relevant information

-6- those persons would have provided (i.e., Hartnett has not shown what additional

information counsel could have obtained which would reasonably have caused him

to reject the plea offer). Like many defendants, Hartnett in hindsight argues

counsel should have done more. But counsel is required to investigate reasonably,

not perfectly, and Hartnett has not shown that counsel failed to conduct a

reasonable investigation under these damning facts.

In his scattershot brief, Hartnett also seems to argue that counsel was

ineffective for not getting his confession to the police suppressed. But counsel did

file a motion to suppress. Hartnett argues his counsel should have called additional

witnesses to testify at the suppression hearing to show that the police had coerced

him into confessing. However, he does not specify how calling additional

witnesses would likely have impacted the court’s decision.

In the video of Hartnett’s nearly two-hour interview with the police,

he can be seen and heard but the officers can only be heard. Hartnett readily

admitted having sexual contact with the victim to a first officer but did not admit to

engaging in sexual intercourse. Eventually, a second officer forcefully and

profanely told Hartnett that she did not believe he was telling the full truth and that

she would strive to make sure Hartnett received maximum punishment if he did not

fully confess. That officer was significantly more brusque than cordial, and

-7- Hartnett confessed to having engaged in sexual intercourse to the first officer soon

after the second officer departed.

But Hartnett has not shown that any additional witnesses, such as the

second officer, would have presented testimony to impact the trial court’s

conclusion that his “will was never overborn by the police conduct. This is

evidenced by Hartnett’s continued effort to blame the child and to downplay the

acts of penetration.” R. at 50. The trial court viewed the video, and no additional

witness testimony would have changed what is depicted on it. Hartnett has not

shown error in the trial court’s conclusion that the police did not improperly cajole

him into confessing. See, e.g., Gray v. Commonwealth, 480 S.W.3d 253, 259-61

(Ky. 2016) (discussing factors to consider in determining whether a confession was

coerced). Thus, his ineffectiveness argument necessarily fails.

Moreover, Hartnett’s assertions in his RCr 11.42 motion (such as, for

example, his allegations of innocence regarding the rape charge, his counsel’s

failure to discuss the evidence adequately with him, the alleged coercion by the

police and the need for counsel to investigate further) directly conflict with his

conduct and statements under oath at the guilty plea hearing. Hartnett answered in

the affirmative when asked if he understood the charges, had told his counsel

everything he knew about them, and had discussed with counsel any possible

defenses to them. When the court asked Hartnett if he had been “influenced or

-8- forced in any way to enter this guilty plea against your will[,]” Hartnett answered

“no.” Video, 11/2/18, at 12:23:25 et seq.

The court then informed Hartnett that if he pled guilty it meant,

among other things, that he was satisfied with his counsel’s work and there was

“nothing else out there” he wanted “any attorney” to do. Id. at 12:26:03 et seq.

The court also told Hartnett that a guilty plea meant he was “truly guilty” and had

no “secret claim of innocence . . . .” Id. at 12:26:25 et seq. Hartnett nonetheless

persisted in seeking to plead guilty. When then asked by the court if he was

satisfied with the “services and advice” of his attorneys, Hartnett answered “yes,

sir.” Id. at 12:26:38. Hartnett later admitted he was guilty of the charges as

described on the Commonwealth’s guilty plea offer. That offer, which Hartnett

signed, states in relevant part that Hartnett “engaged in sexual intercourse with a

minor less than 12 years of age and also subjected her to sexual contact.” R. at 52.

As our Supreme Court has held in similar circumstances:

During the plea hearing, Dorsey affirmed that he had enough time to talk to his attorney, was satisfied with the advice given, and that he was not under any coercion or threats that induced him to plead guilty – he was pleading guilty of his own free will. Further, the trial court asked Dorsey if there was anything about the proceedings he did not understand, and he replied “no.” Dorsey also said he did not have any questions for the court or counsel. These “[s]olemn declarations in open court carry a strong presumption of verity.” Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006).

-9- Dorsey v. Commonwealth, 565 S.W.3d 569, 577 (Ky. 2018).

The foregoing makes plain that Hartnett has not made a baseline

showing that his counsel was deficient. However, even if we were to somehow

assume (solely for the sake of argument) that Hartnett has shown deficiency, he

nonetheless cannot show prejudice. To show prejudice, Hartnett must “allege facts

that, if proven, would support a conclusion that the decision to reject the plea

bargain and go to trial would have been rational, e.g., valid defenses, a pending

suppression motion that could undermine the prosecution’s case, or the realistic

potential for a lower sentence.” Stiger, 381 S.W.3d at 237.

Hartnett cannot make that showing. First, the evidence against him

was overwhelming. Indeed, he even admitted his guilt to the police. Accordingly,

there was not a realistic chance that he would have been acquitted at trial. Second,

he has not – indeed, cannot – show that he even had a realistic chance of receiving

a more lenient sentence at trial. Given the near certainty that he would have been

convicted of first-degree rape, his sentence could not have been less than that

called for in the plea agreement. On the contrary, it is highly likely a jury would

have recommended a significantly longer sentence given the victim’s young age

and status as Hartnett’s stepdaughter and his seeming attempt to blame her, a

young child, for encouraging the sexual conduct.

-10- As our Supreme Court held in similar circumstances, Hartnett “has

not alleged a viable defense to any of the several serious charges against him, so

had he faced trial there is no reason to believe that he would or could have fared

better than he did by pleading guilty and accepting the minimum possible

sentence.” Stiger, 381 S.W.3d at 238. In fact, “given the strength of the

prosecution’s evidence on the . . . charges, there is every reason to think that he

would have fared worse.” Id. In sum, Hartnett has not shown that it would have

been rational to reject the plea and go to trial even if his counsel had taken all of

the acts Hartnett belatedly states were necessary (such as performing additional

investigations, spending more time going over the evidence with him or calling

additional witnesses). Hartnett simply has not shown prejudice.

We now turn to Hartnett’s hazy argument that counsel was ineffective

for not raising a double jeopardy argument. Hartnett is not entitled to relief

because counsel cannot be deemed ineffective for failing to pursue a meritless

argument. Rigdon v. Commonwealth, 144 S.W.3d 283, 291 (Ky. App. 2004).

As we understand it, Hartnett argues his rape and sexual abuse

convictions violate double jeopardy principles because sexual abuse is a lesser-

included offense of rape in the first degree. If the charges here had proceeded to

trial, an instruction on sexual abuse as a lesser-included offense of rape would have

been proper if there had been “evidence that sexual intercourse – i.e., penetration –

-11- did not occur.” Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky. 2009). See also

1 Cooper & Cetrulo, Kentucky Jury Instructions §§ 4.24 and 4.24.1 (2022).

But the evidence here does not present that question. Hartnett

eventually admitted to the police that he sometimes engaged in intercourse with the

victim but initially admitted he sometimes had other forms of sexual contact with

her. And Hartnett admitted under oath at the guilty plea hearing that he was guilty

of both offenses. In short, despite Hartnett’s arguments, there was sufficient

evidence to support both the rape and sexual abuse charges. Counsel may not be

deemed ineffective for declining to pursue a meritless double jeopardy argument.

Hartnett’s final argument is that the trial court erred by not appointing

counsel for him. As we have discussed, the trial court did not err by denying the

RCr 11.42 motion without first holding a hearing. That dooms Hartnett’s

argument that he was entitled to counsel because “[i]f an evidentiary hearing is not

required, counsel need not be appointed . . . .” Fraser, 59 S.W.3d at 453.

For the foregoing reasons, the Hardin Circuit Court is affirmed.

ALL CONCUR.

-12- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Justin Hartnett, pro se Daniel Cameron Burgin, Kentucky Attorney General of Kentucky

Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

-13-