Spencer Heaton v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 17, 2023
• Docket: 2022 CA 000917
• Status: Unknown

Opinion

RENDERED: AUGUST 18, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0917-MR

SPENCER HEATON APPELLANT

APPEAL FROM CALDWELL CIRCUIT COURT v. HONORABLE C. A. WOODALL III, SPECIAL JUDGE ACTION NO. 17-CR-00017

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE, AND LAMBERT, JUDGES.

ECKERLE, JUDGE: Appellant, Spencer Heaton (“Heaton”), pleaded guilty to

first-degree robbery, receiving the minimum sentence allowable. He moved to

withdraw his guilty plea, and the order denying that motion was affirmed on direct

appeal. He now appeals the denial of his post-conviction motion, where Heaton

claimed his trial counsel’s performance was deficient and, but for those deficiencies, he would not have pleaded guilty but would have insisted on going to

trial. Finding no error with the Trial Court’s order denying the motion for post-

conviction relief, we affirm.

BACKGROUND

A robber brandishing a semi-automatic pistol demanded all the money

from a Princeton Food Giant employee on December 11, 2016. The robber fled

with the loot, and over the next several days police officers received tips from

people who viewed news segments and Facebook postings about the robbery, with

the tips eventually leading to Heaton’s arrest. A grand jury indicted Heaton for

first-degree robbery, and he ultimately pleaded guilty to that charge. The

Commonwealth’s offer of ten years to serve on the plea of guilty specifically

stated, “Defendant is ineligible for probation or shock probation. Defendant must

serve 85% before being eligible for parole.” The written offer was signed by the

prosecutor, Heaton, and Heaton’s defense attorney.

At Heaton’s guilty plea colloquy, he told the Trial Court that he was

“absolutely” satisfied with his attorney’s legal services. He admitted he had read

the motion to enter a guilty plea along with the Commonwealth’s offer. He

admitted he understood he was entering a plea to serve ten years of imprisonment,

and that he would not be eligible for probation or shock probation. He also

-2- understood he would not be eligible for parole until he had served 85% of his

sentence.

Prior to sentencing, Heaton moved to withdraw his plea, averring that

he did not understand what had occurred. His counsel had Heaton evaluated by

Dr. Robert Granacher, a psychiatrist. The Commonwealth opposed the motion,

and the Trial Court ordered that Heaton be evaluated at the Kentucky Correctional

Psychiatric Center (“KCPC”). At a later evidentiary hearing on the motion, Dr.

Granacher and Dr. Steven Sparks, a psychologist who evaluated Heaton at KCPC,

both testified, with the former claiming Heaton suffered from an intellectual

disability and was unable to make a knowing or intelligent guilty plea. Dr. Sparks

found that Heaton was competent, could make a knowing and intelligent plea, and

was not intellectually disabled. The Trial Court denied the motion to withdraw the

plea. Heaton was sentenced in accordance with the Commonwealth’s offer.

Heaton subsequently appealed that decision, and a panel of this Court

affirmed the Trial Court’s order. Heaton v. Commonwealth, No. 2019-CA-

000340-MR, 2019 WL 6248309 (Ky. App. Nov. 22, 2019) (unpublished). Heaton

then filed a post-conviction motion pursuant to RCr1 11.42, claiming ineffective

assistance of trial counsel. He claimed his trial counsel failed to investigate an

alibi defense, failed to investigate his alleged intellectual disability, and failed to

1 Kentucky Rules of Criminal Procedure.

-3- give correct advice regarding parole and probation eligibility. He claimed he

would not have pleaded guilty but would have proceeded to trial had these alleged

deficiencies in trial counsel’s performance not occurred. He requested an

evidentiary hearing. The Commonwealth filed a responsive pleading opposing the

motion. The Trial Court later entered an order denying the motion. Heaton now

appeals that order and raises one additional claim never raised below.

ANALYSIS

I. Special judge.

Heaton’s first claim was never raised below. He argues that the order

denying his RCr 11.42 motion is void because it was entered by a special judge

about whose appointment Heaton had not been specifically informed. The

Commonwealth responds that the special judge had been duly appointed, and the

Commonwealth attached to its brief a certified copy of the Order of Assignment

granting retired Judge C. A. Woodall, III the authority to preside over all matters

pending as needed July 1, 2022, through July 31, 2022, in Caldwell, Livingston,

Lyon, and Trigg counties. Heaton, in reply, takes no issue with the veracity of this

Order of Assignment, but he proffers that he should have received notice of the

Order of Assignment prior to Judge Woodall issuing the order denying the RCr

11.42 motion in the instant case. He claims he needed notice so “the parties

c[ould] address any possible grounds for disqualification.” Reply Brief at 1-2.

-4- This argument is likely unpreserved, as the record does not disclose

that Heaton filed any objection, motion to disqualify, or CR2 59.05 motion relating

to Judge Woodall’s assignment prior to filing the instant notice of appeal. Sanders

v. Commonwealth, 339 S.W.3d 427, 433-34 (Ky. 2011). Likewise, the

appointment was a valid constitutional delegation of authority, Kentucky

Constitution § 110(5)(b), regarding which there was no error, palpable or

otherwise.

II. Evidentiary hearing.

Heaton next claims that the Trial Court erred by denying his RCr

11.42 motion without conducting an evidentiary hearing.

The legal standards for an ineffective assistance claim on a guilty plea

have been long established:

RCr 11.42 provides a process by which a convicted prisoner may collaterally attack the validity of his sentence. When a motion for relief under RCr 11.42, or the response to such a motion, raises a material issue of fact that cannot be resolved on the face of the record, the trial court must grant a prompt hearing. RCr 11.42(5). To successfully establish the invalidity of a guilty plea based upon the allegedly deficient performance of defense counsel, the movant must satisfy both prongs of the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and restated by this Court in Bronk v. Commonwealth, 58 S.W.3d 482, 486-487 (Ky. 2001). The movant must demonstrate that: (1) defense counsel’s performance fell

2 Kentucky Rules of Civil Procedure.

-5- outside the wide range of professionally competent assistance; and that (2) a reasonable probability exists that, but for the deficient performance of counsel, the movant would not have pled guilty, but would have insisted on going to trial. In making that determination, the trial court must indulge the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. 2052. The trial court must “consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel[.]” Bronk, 58 S.W.3d at 486 (citations omitted). “[T]he trial court must evaluate whether errors by trial counsel significantly influenced the defendant’s decision to plead guilty in a manner which gives the trial court reason to doubt the voluntariness and validity of the plea.” Id. at 487.

Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016).

Using these standards, and after reviewing the motion and the

Commonwealth’s answer, “the trial judge shall determine whether the allegations

in the motion can be resolved on the face of the record[.]” Fraser v.

Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). An evidentiary hearing is

required only “if there is an issue of fact which cannot be determined on the face of

the record.” Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993)

(citing RCr 11.42(5)), cert. denied, 510 U.S. 1049, 114 S. Ct. 703, 126 L. Ed. 2d

669 (1994). When determining whether a factual issue exists, “[t]he trial judge

may not simply disbelieve factual allegations in the absence of evidence in the

-6- record refuting them.” Fraser, 59 S.W.3d at 452-53 (citing Drake v. United States,

439 F.2d 1319, 1320 (6th Cir. 1971)). With these standards in mind, we address

Heaton’s allegations of error.

A. Alleged misadvise about shock probation or parole eligibility.

Heaton claims he is entitled to an evidentiary hearing on his claim that

his trial counsel allegedly misadvised him about his eligibility for shock probation

or parole eligibility. The Trial Court properly denied this claim without an

evidentiary hearing because the record refutes that any error resulted in Strickland

prejudice.

During the plea colloquy, the Trial Court informed Heaton that he was

ineligible for probation or shock probation, and that he would also have to serve

85% of his sentence before being parole eligible because it was a violent offense.

Heaton indicated he understood and agreed to accept a ten-year sentence where

85% of it had to be served before parole eligibility. The Commonwealth’s plea

offer, which Heaton signed, also indicated the same information. Heaton was thus

thoroughly informed of the correct information regarding parole and probation

eligibility. See, e.g., Edmonds v. Commonwealth, 189 S.W.3d 558, 568 (Ky. 2006)

(“Although a defendant should be able to rely on representations by his attorney,

reliance on a statement that is flatly contradicted by subsequent statements made

by that same attorney, the trial court, and the Commonwealth during the plea

-7- negotiations and the Boykin3 colloquy is not reasonable and does not render the

plea involuntary.”).

Though Heaton distances himself from his signature on the plea offer,

Heaton nonetheless states in his brief, “after hearing from the judge, Spencer

Heaton understood the plea offer, unlike when he indicated his signature on the

[Commonwealth’s Offer].” Appellant’s Brief at 18. Heaton nonetheless entered a

knowing and intelligent plea that has been affirmed on direct appeal. Accordingly,

any erroneous information given to Heaton “by counsel about probation and parole

eligibility was corrected by the trial court. . . . An evidentiary hearing is not

required on this issue.” Rank, 494 S.W.3d at 487. We thus affirm the Trial

Court’s order denying Heaton’s RCr 11.42 motion on this issue.

B. Alleged failure to investigate alibi defense.

Heaton next argues that he was entitled to an evidentiary hearing on

whether his trial counsel’s performance was deficient for an alleged failure to

interview certain alibi witnesses, namely Caleb Heaton, Austin Knight, Dray

Heaton, Sarah Keel Caleb Oliver, and Allison Oliver. Heaton summarily proffers

that these witnesses would testify that he was eating at a chili supper with them

during the robbery. He avers that his attorney was aware of the alibi defense, but

3 Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

-8- elected not to investigate these witnesses, interview them before trial, subpoena

them to be present at trial, or otherwise prepare to present the evidence to the jury.

To support his allegations of deficient performance, Heaton attached

three affidavits to his RCr 11.42 motion: one for himself; and one each from his

parents. These affidavits make statements regarding the purported alibi witnesses.

First, Heaton avers that he was at Caleb Heaton’s house during the time of the

robbery. Heaton claims that Caleb Heaton, Caleb Oliver, Allison Oliver, Austin

Knight, Dray Heaton, and Sarah Keel were at Caleb Heaton’s house at the same

time. Second, Rodney Heaton, Heaton’s father, stated that he gave trial counsel

the names of the alibi witnesses, and that as of the day before the scheduled trial,

trial counsel had not interviewed the alibi witnesses. Third, Margaret Heaton,

Heaton’s mother, stated that none of Heaton’s witnesses were at the courthouse on

the day the trial was to begin. Notably, Heaton did not attach any affidavits from

the purported alibi witnesses.

The Trial Court rejected this argument and the self-serving and

conclusory statements in the affidavits, finding that even if trial counsel’s

performance were deficient, Heaton did not suffer Strickland prejudice. The Trial

Court noted the following evidence from the Commonwealth’s investigation,

which was submitted with its response to the RCr 11.42 motion, substantially

-9- undermined any alibi defense and included incriminating statements by one of the

purported, alibi witnesses:

1. The supposed alibi witness, Caleb Heaton, Defendant’s cousin, confirmed that Spencer Heaton had been at Caleb’s residence for a time, for a meal, but had left “no later than 7:00 p.m.” Caleb also informed the investigating officer that he had sent a picture from the Princeton Police Department Facebook page that was posted immediately after the robbery showing the image of the suspect and Spencer had sent him a return text stating “I was with y’all. Can’t sing two things at once.” Caleb Heaton had been subpoenaed for the initial jury trial as a witness for the Commonwealth.

2. The robbery at the Food Giant grocery store occurred at approximately 7:32 p.m. with the robber seen exiting the building at approximately 17:33:29 [sic].

3. Another cousin to the Defendant, Luke Heaton, contacted the Princeton Police Department and reported that he had also seen the Facebook picture of the suspect and immediately identified that person as his cousin “Spence.” The day after the robbery, Luke had a conversation with the Defendant about the gun and the robbery and the Defendant admitted to Luke that he did have a .25 automatic weapon and admitted that he robbed Food Giant [sic]. The conversation ended with a direct threat with the Defendant saying to the effect “word of mouth will get you killed” and he would “put a bullet right between your eyes.” Luke Heaton had also been subpoenaed by the Commonwealth for trial testimony.

4. A third cousin to the Defendant, Cesiley Kirk, also informed the Princeton Police Department that she recognized Spencer from the images and video that

-10- had been posted on the Police Department’s Facebook page. She recognized his specific type of gait.

5. Brooke Miles was at the Food Giant at the time of the robbery. She was able to describe the robber’s midnight blue S10 truck. That truck matches the pictures of Defendant’s vehicle admitted at the suppression hearing and shown in the discovery materials. Brooke Miles was also subpoenaed for trial testimony by the Commonwealth.

6. The search warrant and consent search resulted in the seizure of clothing and a gun matching those the suspect had on at Food Giant.

We agree with the Trial Court that an evidentiary hearing was not

necessary, though for different reasons, and that no Strickland prejudice resulted

even if trial counsel’s performance were deficient. While defense counsel has a

duty to conduct a reasonable investigation, Wiggins v. Smith, 539 U.S. 510, 123 S.

Ct. 2527, 156 L. Ed. 2d 471 (2003), including an investigation into potential

defenses, the investigation is not one that “the best criminal defense lawyer in the

world, blessed not only with unlimited time and resources, but also with the benefit

of hindsight, would conduct.” Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky.

2001) (citations omitted), overruled on other grounds by Leonard v.

Commonwealth, 279 S.W.3d 151 (Ky. 2009).

Here, assuming, arguendo, that counsel’s performance was deficient,

Heaton has failed to prove Strickland prejudice. His allegations are conclusory,

non-specific, and circular. He proffers that an investigation into these purported

-11- alibi witnesses would have created an alibi defense, yet the only evidence Heaton

offered to support the alibi defense was the conclusory and self-serving affidavits

of himself and his parents (neither of whom it appears were at the purported chili

supper). None of this information offers any details of the purported alibi

witnesses’ testimonies. Mills v. Commonwealth, 170 S.W.3d 310, 330 (Ky. 2005),

overruled on other grounds by Leonard, supra (“[V]ague allegations, including

those of failure to investigate, do not warrant an evidentiary hearing and warrant

summary dismissal of the RCr 11.42 motion.”).

In other words, Heaton’s affidavits show that it might be true that if

counsel investigated these purported alibi witnesses, he might have found some

evidence to present. “A claim that certain facts might be true, in essence an

admission that [Heaton] does not know whether the claim is true, cannot be the

basis for RCr 11.42 relief.” Mills, 170 S.W.3d at 328 (emphasis in original).

Heaton’s alibi allegation thus constitutes a fishing expedition, which is not

permitted. Prescott v. Commonwealth, 572 S.W.3d 913, 926 (Ky. App. 2019)

(“RCr 11.42 motions are not intended to conduct further discovery or fishing

expeditions.”). See also Mills, supra; Fraser, supra.

Heaton failed to allege facts sufficient to support his claim under

Strickland. Compare with Mills, 170 S.W.3d at 338-40 (evidentiary hearing was

required on alleged alternative perpetrator theory where defendant specified 11

-12- suspicious details that pointed to another person committing the crime).

Accordingly, on the face of the record that existed when Heaton filed his RCr

11.42 motion, an evidentiary hearing was not required to conduct Heaton’s fishing

expedition for a possible alibi defense. Thus, the Trial Court did not err by

denying the motion on this issue and Heaton’s request for an evidentiary hearing.

C. Alleged failure to investigate alleged intellectual disability.

Finally, Heaton argues his trial counsel’s performance was deficient

because he failed to investigate Heaton’s alleged intellectual disability prior to the

entry of the guilty plea. This argument is ostensibly a cumulative error argument,

as Heaton states in his brief, “This failure, in conjunction with the other errors

previously discussed, constituted ineffective assistances of counsel.” Indeed, this

argument goes hand-in-hand with his first ineffective assistance claim, as Heaton

argues repeatedly that if his counsel had investigated Heaton’s intellectual

capacity, counsel would have been able to explain the plea offer accurately and in a

manner that Heaton could understand, which would have resulted in Heaton not

accepting the plea offer.

The Trial Court rejected this issue, noting that Heaton’s direct appeal

dealt primarily with whether Heaton suffered from an intellectual disability or was

incompetent to enter a guilty plea, thus there were no issues of fact that could not

be determined from the record itself. We agree. All the factual evidence regarding

-13- Heaton’s purported intellectual disability is contained in the instant record.

Allegations of Heaton’s incompetence were previously rejected, and the denial was

affirmed on direct appeal. Heaton intelligently and voluntarily entered a valid

guilty plea. See Bronk, 58 S.W.3d at 486 (“A guilty plea is valid only when it is

entered intelligently and voluntarily.”). Counsel’s performance cannot be deemed

deficient when Heaton was fully capable of intelligently and voluntarily entering a

plea, Heaton received the minimum possible sentence for his charged crime, and

Heaton chose to enter a plea given a mountain of evidence to be produced against

him. Likewise, Heaton did not prove Strickland prejudice. On this issue, both

prongs of Strickland are proven from the face of the record, and Heaton was thus

not entitled to an evidentiary hearing. The Trial Court properly denied the motion.

CONCLUSION

The order denying the RCr 11.42 motion was signed by a duly-

appointed judge. Additionally, all of Heaton’s alleged ineffective assistance of

counsel claims are refuted by the face of the record. Accordingly, the Trial Court

properly denied the post-conviction motion without holding an evidentiary hearing.

We AFFIRM the Trial Court’s Order.

ALL CONCUR.

-14- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Michael L. Goodwin Daniel Cameron Louisville, Kentucky Attorney General of Kentucky

Christopher Henry Assistant Attorney General Frankfort, Kentucky

-15-