Treshawn Levar Jones v. Commonwealth of Kentucky ( 2021 )

RENDERED: SEPTEMBER 24, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0139-MR
TRESHAWN JONES APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCY A. VANMETER, JUDGE
ACTION NO. 13-CR-01368-004
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.
MAZE, JUDGE: Appellant, Treshawn Jones, appeals the Fayette Circuit Court
order denying his motion for post-conviction relief pursuant to RCr1 11.42. For the
following reasons, we affirm.
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Kentucky Rules of Criminal Procedure.
FACTUAL AND PROCEDURAL HISTORY
On December 18, 2013, a Fayette County grand jury returned
indictments against Jones and three co-defendants for murder and first-degree
robbery. The charges arose from the murder of the victim, Isaias Lopez-
Bustamante, when Jones entered the victim’s apartment with the intent of taking
the victim’s money and property. Not long after Jones was arrested, he was
interviewed by the police and made an incriminating statement. Beyond Jones’
statement to the police, a blood trail led directly from the crime scene to Jones in
one of the co-defendant’s nearby apartment. Also, Jones’ fingerprints were on the
murder weapon and the victim’s nine-year old daughter witnessed the events
unfold.
Because Jones was sixteen years old at the time of the offenses, the
case began in juvenile court. Attorneys Erica Roland and Josh Miller, of the
Department of Public Advocacy, were appointed to represent Jones. While the
case began in juvenile court, the County Attorney filed a motion to proceed against
Jones as a youthful offender, pursuant to KRS2 635.020(2) and (4), which would
transfer the case to circuit court.
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Kentucky Revised Statutes.
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Following the County Attorney’s motion, and while still in juvenile
court, Jones’ counsel requested a competency hearing and a competency
evaluation. Because Jones’ past medical history included a traumatic brain injury,
the juvenile court ordered expert Dr. Timothy H. Houchin to complete a
competency evaluation. However, the juvenile court declined to hold a
competency hearing. Relying on KRS 635.020(4), Commonwealth v. Deweese,
141 S.W.3d 372 (Ky. App. 2003), and Nelson v. Shake, 82 S.W.3d 914 (Ky. 2002),
the juvenile court held that it would first determine whether to transfer Jones’ case
to circuit court.
Dr. Houchin determined that Jones was incompetent to stand trial.
However, the County Attorney filed a motion to strike Dr. Houchin’s report as
incomplete and objected to the competency hearing. Following these motions,
relying on Deweese, supra, the juvenile court found that it did not have jurisdiction
to hold a competency hearing because the proper forum to hold a competency
hearing was within the circuit court.
In response, Jones filed a petition for a writ of mandamus requesting
the circuit court to order the juvenile court to hold the competency hearing. The
circuit court denied Jones’ petition. In its order, the circuit court held that, because
the Commonwealth intended to proceed under KRS 635.020(4), the juvenile court
had no discretion to retain the case if it determined that probable cause, in the form
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of the juvenile’s age and the commission of a felony involving a firearm, existed.
The circuit court further held that since the district court found probable cause, it
was mandatory that the case be transferred to circuit court.
Jones then moved this Court for discretionary review, arguing the
juvenile court had jurisdiction to hold the competency hearing. This Court
affirmed the denial of the writ petition. Shortly thereafter, the juvenile court
transferred the case to the circuit court for trial of Jones as a youthful offender.
Following the transfer, the Commonwealth requested a competency evaluation be
performed by Dr. Timothy Allen with the Kentucky Correctional Psychiatric
Center (KCPC). In his report, Dr. Allen concluded that Jones was competent.
On February 2, 2015, each of Jones’ co-defendants pled guilty and
each agreed to testify against Jones in exchange for their pleas. Following these
pleas, Jones’ counsel recommended that Jones accept the Commonwealth’s plea
offer. However, Jones’ counsel needed Jones to be declared officially competent
before he could accept the plea.
A competency hearing was held on February 12, 2015. At the
hearing, Dr. Allen testified that Jones was competent despite his impairments in
executive functioning due to his brain injury. Dr. Allen further testified that Jones
understood the criminal process and the seriousness of the charges and that he
could aid in his own defense. Dr. Allen further testified that there was no doubt in
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his mind that Jones had good factual knowledge of the case against him, he knew
his role in the case, he said his attorneys were doing a good job representing him,
and he could discuss the case in a rational manner. Additionally, Dr. Allen
testified that Jones had the reasonable ability to understand and process
information such that he could appreciate the nature and consequences of the
proceeding against him. On cross-examination, Jones’ counsel asked only three
questions of Dr. Allen:
(1) “Some of your testing seemed to indicate that
[Jones’] executive functioning was degraded. Could you
talk a little bit more about how that would manifest itself
in his decision making?”
(2) “All these [executive functioning] tests were in the
moment, correct? There was no forensic element to your
studies? It was all Mr. Jones as he presented himself to
you in his office during his time at KCPC?”
(3) “We’re talking about a crime that happened when
Mr. Jones was 16. In your experience, does the executive
function between a 16-year-old and a 19-year-old – is
one stronger than the other?”
Jones did not call Dr. Houchin or any other witness to testify on his
behalf in the competency hearing. The circuit court subsequently declared Jones
competent. Later that day, Jones entered a guilty plea to murder and first-degree
robbery. On March 26, 2015, the circuit court sentenced Jones to a total of 27
years’ imprisonment.
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On April 10, 2015, this Court affirmed the circuit court’s denial of
Jones’ writ petition, holding the juvenile court did not have jurisdiction to conduct
a competency hearing before conducting a preliminary transfer hearing to
determine probable cause. T.J. v. Bell, No. 2013-CA-001664-ME, 2015 WL
1640426, at *9 (Ky. App. Apr. 10, 2015). The Kentucky Supreme Court denied
discretionary review on August 12, 2015.
On May 10, 2017, Jones filed a pro se RCr 11.42 motion, arguing he
received ineffective assistance of counsel. Jones was subsequently appointed
counsel who filed a supplemental RCr 11.42 motion on Jones’ behalf. Jones then
filed a second supplemental RCr 11.42 motion raising additional grounds based
upon the Kentucky Supreme Court’s recent opinion in Commonwealth v. B.H., 548
S.W.3d 238 (Ky. 2018), which addressed whether the juvenile court has
jurisdiction to conduct a competency hearing before conducting a youthful
offender hearing.
In April 2019, the circuit court held an evidentiary hearing in which
Attorneys Roland and Miller testified regarding their representation of Jones. On
December 4, 2019, the circuit court denied Jones’ RCr 11.42 motion to vacate his
judgment. This appeal followed.
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ANALYSIS
I. Jones was not denied his right to effective assistance of counsel.
In this appeal, Jones primarily argues he was provided ineffective
assistance of counsel prior to his guilty plea based on the following grounds: (1)
his counsel failed to fully advise him regarding the plea agreement because he had
a diminished capacity to understand the plea and make a decision; (2) his counsel
allowed him to enter into a guilty plea even though he was incompetent to do so;
(3) his counsel failed to file a motion to suppress statements he made to the police;
and (4) Jones’ right to assist his counsel in the preparation of his own defense was
abridged due to his lack of competency. Jones separately argues that he was
deprived of due process because the juvenile court failed to hold a competency
hearing prior to his transfer to juvenile court. We shall address his ineffective-
assistance claims first.
To successfully demonstrate ineffective assistance of counsel under
RCr 11.42, Jones must meet both prongs of the test laid out in Strickland v.
Washington, 466 U.S. 668 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The right to
counsel is the right to effective assistance of counsel; therefore, Strickland sheds
light on the two components that indicate ineffective assistance of counsel: (1)
deficient performance and (2) prejudice. Id. at 687.
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The first prong asks whether counsel’s assistance was reasonable
considering all the circumstances. Id. at 688. Courts must assuage a strong
presumption that criminal defense counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. at 689. Therefore, the defendant has the
burden to overcome the presumption and demonstrate otherwise. Id. Strategic
choices made by criminal defense counsel are “virtually unchallengeable.” Id. at
690. A defendant pursuing an ineffective assistance of counsel claim must
pinpoint the specific acts or omissions alleged to not have been the result of
reasonable professional judgment. Id. The second prong of prejudice requires the
defendant to show a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. at 694.
Both prongs must be satisfied for the Court to grant relief. We review the trial
court’s factual findings on an RCr 11.42 motion on a clearly erroneous basis.
Johnson v. Commonwealth, 412 S.W.3d 157 (Ky. 2013).
First, Jones argues his counsel was ineffective for failing to fully
advise him before he accepted the plea offer because he required more in-depth
communications considering his past medical history. Here, Jones fails to provide
specific evidence of how his counsel failed to effectively communicate the
implications of the plea agreement. Jones simply relies on the fact that his counsel,
in the post-conviction evidentiary hearing, could not recall their conversations
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surrounding the plea agreement. Furthermore, when Jones pleaded guilty, he
acknowledged that his counsel fully advised him of his rights. Even assuming
Jones could satisfy the first prong of Strickland, he fails to demonstrate that, but
for counsel’s alleged failure to fully advise him of his rights, he would not have
pled guilty. Accordingly, Jones fails to satisfy both Strickland prongs to show his
counsel’s performance was ineffective.
Second, Jones maintains his counsel was ineffective for permitting
him to accept a guilty plea even though he was incompetent to do so. Jones argues
the plea was not made voluntarily, knowingly, and intelligently because it was the
result of ineffective assistance of counsel. Relying on Rigdon v. Commonwealth,
144 S.W.3d 283, 285 (Ky. App. 2004), Jones claims his attorney made errors and
his attorney’s deficient performance so seriously affected the plea process that, but
for those errors, he would not have pleaded guilty.
Specifically, Jones argues his counsel should have challenged Dr.
Allen’s testimony by introducing evidence of his mental limitations and by more
vigorously cross-examining Dr. Allen. Also, Jones argues his counsel should have
presented Dr. Houchin or another doctor as an expert witness on his behalf. Jones
reasons that, if the court had an opportunity to find him incompetent, he could not
have entered a guilty plea.
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We agree with Jones that reasonable grounds existed to put his
competency at issue. However, the circuit court held a competency hearing at the
request of Jones’ counsel. Nevertheless, Jones’ counsel took the position that it
was useless to challenge Dr. Allen’s diagnosis based on a belief that the courts
rarely reject the KCPC expert’s competency determinations. Consequently,
counsel did not seek any additional evaluations of Jones’s competency either by
Dr. Houchin or another physician. And as noted above, counsel only asked Dr.
Allen three questions, with no follow up.
Essentially, Jones’ counsel allowed the Commonwealth to dominate
the inquiry on the competency issue. On the other hand, we note that defense
counsel is afforded great discretion in trying a case, especially with regard to trial
strategy and tactics. Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998).
Likewise, counsel’s decision to call particular witnesses generally will not be
second-guessed in hindsight. Moore v. Commonwealth, 983 S.W.2d 479, 484-85
(Ky. 1998).
We are concerned with the limited scope of counsel’s cross-
examination. As previously noted, counsel stated that the courts rarely reject the
KCPC expert’s competency determinations. In addition, counsel noted that Dr.
Houchin’s report was more than a year old and did not address Jones’ competency
as of 2015. Counsel also testified that Dr. Houchin was not available to examine
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Jones at the time of the competency hearing in the circuit court. Finally, as
discussed below, counsel testified that Jones appeared to be competent and capable
of assisting in his own defense. Given these explanations for the failure to pursue
the competency issue more vigorously, we cannot find that counsel’s decision to
forego further inquiry on these matters fell outside the range of reasonable trial
strategy.
Even assuming, arguendo, Jones’ counsel’s performance at the
competency hearing was deficient, Jones failed to establish the second Strickland
prong of prejudice. “To establish Strickland prejudice, the claimant must initially
allege and ultimately show that absent counsel’s error a meaningfully different
result was a substantial likelihood, more likely than not or very nearly so.”
Commonwealth v. Pridham, 394 S.W.3d 867, 880 (Ky. 2012). Counsel’s failure to
more effectively question Dr. Allen or call his own expert does not in and of itself
prove that the result of the competency hearing would have been different. Jones
has not shown that the outcome of the competency hearing would have been
different and that his guilty plea would not have been accepted absent ineffective
assistance of counsel. Therefore, we conclude that Jones’ counsel was not
ineffective in permitting Jones to accept the plea agreement.
Third, Jones argues that his counsel was ineffective for failing to file a
motion to suppress his statement to the police. Specifically, Jones argues that he
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was sixteen years old, lacked counsel, and had significant mental impairments at
the time of his statement to the police. In response, the Commonwealth argues that
Jones’ counsel cannot be deemed ineffective for failing to file such a motion given
the overwhelming evidence of guilt against Jones, which included a co-defendant’s
testimony that Jones possessed the murder weapon and shot the victim, the
victim’s daughter answered the door and was an eyewitness to the shooting, Jones’
fingerprints were on the gun, and a “blood trail” from the crime scene led to Jones’
arrest shortly after the crimes.
In Premo v. Moore, 562 U.S. 115, 123, 131 S. Ct. 733, 740, 178 L.
Ed. 2d 649 (2011), the United States Supreme Court held that a failure to file a
motion to suppress can rise to the level of ineffective assistance of counsel, but not
if the motion would have been “fruitless.” Even if Jones’ counsel filed a motion to
suppress Jones’ statement to the police and the court found the statement
inadmissible, other evidence of Jones’ guilt remained. Thus, his counsel was not
ineffective for failing to file a motion to suppress.
Finally, Jones argues his counsel was ineffective because he could not
adequately assist in the preparation of his defense due to his lack of competency.
Jones claims that, pursuant to KRS 645.070(3) and (4), juvenile defendants have
the right to be present at any hearing and participate in their own defense, yet he
was not competent to assist counsel in his defense. B.H., 548 S.W.3d at 248.
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As stated, the circuit court found Jones competent to stand trial.
Moreover, Jones’ contention that he was not able to adequately assist in his
defense is directly refuted through the testimony of his attorneys. At the
evidentiary hearing, both of Jones’ lawyers testified that Jones was able to
understand “good facts” and “bad facts” in considering a guilty plea, which
demonstrates that Jones was able to participate in his defense. Moreover, Dr.
Allen testified that Jones could reasonably discuss the kinds of pleas to consider,
he could discuss possible offers with his attorneys, and Jones could testify
relevantly if he chose to do so. Accordingly, Jones’ counsel was not ineffective
because Jones was able to adequately assist with his representation and he was not
prejudiced.
II. The holding in Commonwealth v. B.H. does not apply retroactively to
Jones’ due process claim.
Jones also argues that his constitutional due process rights were
violated because he was denied a competency hearing in juvenile court pursuant to
Commonwealth v. B.H., supra. In B.H., the Kentucky Supreme Court held that a
juvenile court has the discretion to decide a juvenile’s competency prior to
deciding whether to transfer the case to the circuit court so the juvenile can be tried
as an adult. Id., 548 S.W.3d at 247. The Court stated that a juvenile has a
constitutional due process right to a fair trial, which includes the requirement that
the juvenile be competent to stand trial. Id. at 247-48. The Court concluded that if
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the juvenile court had not considered the issue of competency, it would have
infringed on B.H.’s right to effective assistance of counsel “because inherent in
effective representation is a client who can also assist in the preparation of a
defense.” Id. at 249.
Jones takes the position that the holding in B.H. both authorized the
juvenile court to hold an evidentiary hearing prior to transfer and required it to do
so as part of his rights to procedural due process. Jones does not explicitly argue
that the holding in B.H. is retroactive to all cases which were final as of its
rendition. But he does argue that the circuit court erred by failing to consider the
holding in B.H. as relevant to his claim that he was denied due process.
While the applicability of B.H. is complicated, we agree with the
circuit court’s conclusion that it was not controlling in this case. The Kentucky
Supreme Court’s holding in B.H. involved both a new rule of statutory
interpretation and a new constitutional rule. Based on the Supreme Court’s
holding in B.H., the juvenile court, indeed, had jurisdiction to conduct the
competency hearing before transferring Jones’ case to circuit court. Because the
Supreme Court’s interpretation of KRS 620.020 was based on language of the
statute in effect at the time of Jones’ appearance in juvenile court, its holding
regarding the district court’s jurisdiction must be applied retroactively.
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But concerning the new constitutional rule, the Court held that a
defendant has a constitutional due process right to a competency determination at
all stages of the proceeding, including prior to the juvenile transfer hearing. Id. at
249. Furthermore, the Court found that the denial of this due process right would
constitute ineffective assistance of counsel. Id. “Unless they fall within an
exception to the general rule, new constitutional rules of criminal procedure will
not be applicable to those cases which have become final before the new rules are
accounted.” Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009) (quoting
Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1064, 103 L. Ed. 2d 334(1989)). Therefore, because this new rule of law requiring competency hearings at
all stages of the proceeding to satisfy due process is of a constitutional dimension
and no exceptions apply, it will not be applied retroactively.
CONCLUSION
In conclusion, Jones’ appellate counsel has raised significant
questions about the performance of trial counsel, particularly with regard to the
competency hearing. Although the issue merits close scrutiny, we cannot find that
counsel’s decisions to not conduct a more thorough cross-examination or present
additional evidence at the competency hearing either were deficient or resulted in
unfair prejudice to Jones. Likewise, Jones has not shown that he was entitled to set
aside his guilty plea based on the other allegations of ineffective assistance. The
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holding in B.H. v. Commonwealth is complicated and will affect future juvenile
transfer proceedings where competency is at issue. But in this case, we conclude
that the due process claim is not applicable to Jones’ RCr 11.42 motion.
For the reasons set forth above, we affirm the judgment of the Fayette
Circuit Court denying Jones’ motion to vacate pursuant to RCr 11.42.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE:
FOR APPELLANT:
Daniel Cameron
Kara Stinson Lewis Attorney General of Kentucky
La Grange, Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Kristin L. Conder
Frankfort, Kentucky
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