Demarkus Tramber v. Commonwealth of Kentucky ( 2021 )

RENDERED: MAY 7, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1032-MR
DEMARKUS TRAMBER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CR-001328-5
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: In this post-conviction appeal, Demarkus Tramber,
proceeding pro se, seeks review of the Jefferson Circuit Court’s order denying his
motion to vacate, set aside, or correct his sentence pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42. Following a jury trial, he had been convicted of
murder, first-degree assault, and four counts of first-degree wanton endangerment,
and he entered into a sentencing agreement of twenty years’ imprisonment, which
included a waiver of his right to appeal his conviction. We vacate and remand.
We shall rely upon the recitation of the facts as set forth in the opinion
of the Supreme Court of Kentucky in the direct appeal of one of Tramber’s co-
defendants, William McLemore:
On August 27, 2014, Destin “Blair” Lindsay was
shot on Saint Louis Avenue. McLemore later told
Sergeant Scott Beatty of the Louisville Metro Police that
he had been “up the street” on Saint Louis at the time of
the shooting. According to Michael Dunn, an
acquaintance of Lindsay and McLemore, an ongoing
“beef” between Saint Louis and Market Street led to
Lindsay’s shooting.
There are many varying accounts of the events
which took place after Lindsay’s shooting. Dunn said he
met up with McLemore and three other men at the park
on Saint Louis and the five men decided to retaliate for
Lindsay’s shooting. He said McLemore and two of the
other men said they knew who had shot Lindsay. Dunn
said they walked to 37th Street and approached a house
and the other four opened fire. According to Dunn, he
pulled the trigger on his own gun several times, but it did
not fire.
Trey Anderson, one of the other men Dunn said he
met up with in the park, provided a different version of
events. According to Anderson, when he arrived at the
Saint Louis Park after Lindsay had been shot, Dunn was
already there. He said he did not see either McLemore or
Demarkus Tramber (one of the other men identified by
Dunn). Anderson said he drove down 37th Street with
Dunn and Duwan Mason (another of the men identified
by Dunn) and parked. A second car parked behind him.
Anderson said he remained with the vehicles while the
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others got out. According to Anderson, he did not know
the identity of the individuals in the other car. Dunn and
Mason returned to Anderson’s car shortly after he heard
gunshots. Anderson said he knew McLemore, but he did
not name him as one of the individuals involved in the
shooting.
According to Cierra Twyman, she was sitting on
the porch with her boyfriend, the couple’s daughter,
Ne’Riah, and her boyfriend’s brothers when she saw a
group of men approach. She heard them talking to one
another and then heard gunshots. Twyman was shot, as
was her sixteen-month-old daughter, Ne’Riah. Ne’Riah
did not survive the gunshot wound to the torso she
sustained.
Damion Thompson, Twyman’s cousin, testified he
saw McLemore, Anderson, and a third man get out of a
car on the comer of Market Street and 37th Street. He
indicated that McLemore told him he was “ready to go
handle something and shoot back out.” Thompson heard
gunshots around thirty seconds later. Thompson
identified McLemore and Anderson by photograph and
then later identified McLemore in court, though he said
he did not personally know the two, but had seen them a
few times in the past.
On September 6 Cedric Weaver was cited for
trafficking. During his discussion with police, Weaver
said he had seen the shooting that led to Ne’Riah Miller’s
death on August 27. He said that on the day of
Ne’Riah’s shooting, he had been sitting on a porch with
Dujuan “Budda” Simonton. He said he saw a group of
people walk down Market Street and ask people if they
were “from Market.” When someone responded in the
affirmative, the men pulled out their guns and started
shooting. According to Weaver, he saw both McLemore
and Tramber shooting at people “a couple houses down
from Na’Rhiah’s home.” Weaver claimed Simonton was
in the house when the shots were fired.
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Simonton would later deny any recollection of
where he was on the day of the shooting, and deny seeing
Weaver on that day.
On September 11, 2014, McLemore was jointly
indicted with Tramber for one count of murder, one
count of first-degree assault, ten counts of attempted
murder, and nine counts of first-degree wanton
endangerment. Both McLemore and Tramber were then
jointly re-indicted for the same offenses along with
Anderson, Dunn, and Mason in a superseding indictment.
Anderson and Dunn both entered plea agreements
with the Commonwealth that required them to “testify
truthfully in any proceeding related to his co-
defendants.” McLemore, Mason, and Tramber all
proceeded to trial and all three were convicted of murder,
first-degree assault, and four counts of first-degree
wanton endangerment. Tramber waived his right to
directly appeal and was sentenced separately. McLemore
and Mason were each sentenced to thirty-five years’
imprisonment. This case involves McLemore’s appeal
from those convictions.
McLemore v. Commonwealth, 590 S.W.3d 229, 232-33 (Ky. 2019). We note that
McLemore’s and Mason’s thirty-five-year sentences were affirmed by the Supreme
Court on direct appeal. Id. at 245; Mason v. Commonwealth, No. 2018-SC-0044-
MR, 2020 WL 1290429 at *10 (Ky. Feb. 20, 2020).
On June 17, 2019, Tramber filed a pro se motion to vacate his
sentence and be released from custody pursuant to RCr 11.42, citing ineffective
assistance of counsel. In his motion, Tramber raised the following grounds and
sought relief as requested in the parentheticals at the end of each item:
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1) His trial counsel did not move the court to withdraw the sentencing
agreement, against his request (requested appointment of counsel and an
evidentiary hearing as his conversation with his attorney could not be refuted
by the record; a new trial; and release from custody);
2) He was denied his right to appeal his conviction when his counsel refused to
file a notice of appeal to challenge the validity of the sentencing agreement
(requested an appeal “other than a direct appeal of his conviction” and
appointment of counsel);
3) His counsel was ineffective in failing to object to the prosecutor’s comments
on the credibility of two witnesses, Michael Dunn and Trey Anderson
(requested reversal of conviction and sentence; a new trial; release from
custody; or for appointment of counsel and an evidentiary hearing);
4) His counsel was ineffective in requesting a curative instruction, rather than
moving for a mistrial, when the trial court informed the jury that Tramber
had been in custody when a witness had been shot (requested a new trial or
an evidentiary hearing and appointment of counsel);
5) His counsel was ineffective in failing to impeach a witness with prior
testimony (no requests); and
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6) His counsel was ineffective in failing to object to the prosecutor’s attempt to
define reasonable doubt during opening statements (requested a new trial but
no evidentiary hearing because he stated the record supported his allegation).
By order entered June 21, 2019, the circuit court denied Tramber’s
motion, finding that his arguments lacked a factual basis or legal merit: Tramber
failed to show that his attorney’s representation fell below an objective level of
reasonableness in violation of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed.2d 674 (1984); the grounds could or should have been raised on
direct appeal; or the grounds did not come within the purview of RCr 11.42. In
addition, the court denied Tramber’s motions for appointment of counsel and for
an evidentiary hearing. This appeal now follows.
This Court’s standard of review in an RCr 11.42 post-conviction
action is well-settled in the Commonwealth. 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. Strickland, supra; accord Gall v.
Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S. Ct.
3311, 92 L. Ed. 2d 724 (1986). Pursuant to Strickland, the standard for attorney
performance is reasonable, effective assistance. The movant bears the burden of
proof and must show that his counsel’s representation fell below an objective
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standard of reasonableness. In doing so, the movant must overcome a strong
presumption that counsel’s performance was adequate. Jordan v. Commonwealth,
445 S.W.2d 878, 879 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874,
878 (Ky. 1969). Furthermore, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. If an evidentiary hearing is held,
the reviewing court must determine whether the lower court acted erroneously in
finding that the defendant below received effective assistance of counsel. Ivey v.
Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983). See also Haight v.
Commonwealth, 41 S.W.3d 436, 441-42 (Ky. 2001), overruled on other grounds
by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
The first issue we shall address is Tramber’s allegation that his trial
counsel failed to file a motion to withdraw the sentencing agreement, depriving
him of representation related to the penalty phase. At the conclusion of the guilt
phase of the trial, Tramber decided to accept the Commonwealth’s offer of a
twenty-year sentence and forego sentencing by a jury in exchange for the waiver of
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his right to appeal his conviction.1 The court conducted a colloquy that day, noting
that based upon the jury’s verdict, Tramber was facing a best case scenario of
twenty years’ imprisonment and a worst case scenario of life imprisonment. The
court accepted Tramber’s decision to agree to the offer and sentenced him to
twenty years’ imprisonment.
Tramber claims in his RCr 11.42 motion and in his appellate brief that
his decision to accept the Commonwealth’s offer was based upon what his trial
counsel told him would happen if he refused the deal. Tramber’s version of what
took place, as set forth in his RCr 11.42 motion, is as follows:
Prior to sentencing, Tramber’s attorney came to the
holding area to see him. He informed Tramber that the
Commonwealth was offering him a deal in lieu of jury
sentencing. Tramber refused because he did not want to
give up his right to appeal his case. His attorney told him
that he would not represent him at sentencing and that he
was fortunate that he even finished the trial, due to his
family not paying all the money he was owed.
[Tramber’s attorney] hold him “look, take the deal
and I will forgive the debt. I will also represent you at
sentencing, free of charge. That will be less stress on
your mom[.]” Tramber, who was concerned about his
mom’s health and stress level about the money, took the
deal on those terms. He was told not to mention this to
the judge and to just answer the questions.
1
Neither the sentencing agreement nor the final judgment is included in the record on appeal.
The certified record in this case begins with a December 19, 2017, order denying Tramber’s
motion for Kentucky Rules of Civil Procedure (CR) 60.02 relief. There is a note at the
beginning of the record that the rest of the case was at the Supreme Court with a co-defendant’s
appeal. Based upon our review of the colloquy, the agreement specifically included a waiver of
Tramber’s right to directly appeal his conviction.
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The colloquy was conducted between the court and
Tramber and his deal was accepted. Counsel tried to get
Tramber to waive final sentencing, on the record, even
though he told him he would represent him at that
proceeding. Tramber refused.
Prior to that date, Tramber learned that he could
withdraw from that agreement and wished to have his
direct appeal, as he changed his mind after hearing from
a legal aide in the jail, the significance of his appeal and
what the Court could do, should they find an error.
He informed his attorney of his wishes and counsel
reminded him of the deal “they” entered and why he
forgave the debt. He also reminded him of what the
judge said and that there was nothing he could do, there
was NO appeal of any kind. That was the conclusion of
the proceedings and one of the last times he [saw] his
attorney.
Later in the motion, Tramber continued:
Prior to final sentencing on April 25, 2017,[2] Tramber
had decided that he no longer wanted to accept the
Commonwealth’s offer and he now wanted to pursue
regular sentencing.
He contacted his attorney and relayed his wishes,
that he wanted to withdraw his sentencing agreement.
Although he [saw] his Co-defendants get more time than
he did with the agreement, he realized the impact of what
he had done and what he really gave up, by entering into
the “Sentencing Agreement.” Tramber had it explained
to him, the impact of waiving his right to appeal, by a
resident Legal [Aide] located in the jail.
2
The final sentencing hearing was held on April 28, 2017.
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Tramber’s attorney told him “No matter what you
want at this point, [there’s] nothing we can do. Besides, I
told you that your family still had not paid the other
$5000 Dollars [sic] owed and my kindness had already
extended far enough.” “Also, you & I had an agreement
that if you took the deal I would waive the money owed
and represent you at final sentencing, remember?”
Tramber instructed his attorney that he still wanted
to withdraw the “Sentencing Agreement” despite the
“understanding/deal[”] that they had made. Counsel
simply stated that “look, Tramber, we’ll see, how about
that?[”] Tramber did not hear from his attorney again
until April 27, 2017 which was one day before Court.
His attorney instructed him that if he mentioned this
“Withdraw crap” the judge had informed him he would
not oblige the “Sentencing Agreement” and would give
him 30 years. Tramber, still concerned about his appeal
asked “So? Will I get my appeal back?” Counsel told
him that he would not get it back and that they were all
“lost, pursuant to the agreement.” Tramber contends that
was the reason he did not mention it during his final
sentencing on April 28, 2017.
Based upon these allegations, Tramber contends that he was denied
counsel at a critical stage of the proceedings when his attorney refused to file a
motion to withdraw the sentencing agreement. He reminds the Court that it was
not the merits of the motion to withdraw for which he was seeking relief, but rather
from counsel’s failure to file the motion at all.
In support of his argument, Tramber cites to the Supreme Court of
Kentucky’s opinion in Commonwealth v. Tigue, 459 S.W.3d 372 (Ky. 2015). In
this case, Tigue had entered into a pre-trial guilty plea agreement with the
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Commonwealth, after which he expressed to his appointed counsel and the court
that he wished to withdraw his plea and proceed to trial. Tigue’s counsel did not
file a motion to withdraw his plea pursuant to his request, and the court declined to
rule on Tigue’s pro se oral request at the sentencing hearing as a motion had not
been filed. Tigue sought RCr 11.42 relief. The court appointed counsel, who filed
a supplemental memorandum, and held an evidentiary hearing, after which the
court denied relief. On appeal, this Court reversed the lower court’s decision on
this issue, and the Supreme Court affirmed this decision on discretionary review,
as we explain below.
In its analysis, the Supreme Court recognized that “both sentencing
and guilty-plea proceedings are critical stages during which the right to counsel
attaches[,]” id. at 384, before concluding that “a motion to withdraw a guilty plea
made before entry of the final judgment of conviction and sentence is a ‘critical
stage’ of the criminal proceedings to which the right to counsel attaches.” Id.
The Supreme Court went on to review whether Tigue’s trial counsel
had been ineffective in failing to file a motion to withdraw his plea. It explained:
Just as the decision whether to enter a guilty plea is
personal to the defendant, so too is the decision whether
to ask to withdraw such a plea. See United States v.
Davis, 239 F.3d 283, 286 (2d Cir. 2001) (“It cannot be
gainsaid that a defendant’s guilty plea is the most critical
stage of the proceeding as it forecloses his very right to a
trial. Consequently, in the face of an allegedly
involuntary plea, a plea withdrawal hearing is vital to
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ensuring the integrity of the process by which guilt may
ultimately be determined.”). Implicit in the requirement
that counsel defer to the defendant’s decision to enter the
plea is “the requirement that counsel abide by a client’s
determination, after a plea of guilty has been entered, to
seek its withdrawal.” State v. Barlow, 419 N.J.Super.
527, 17 A.3d 843, 848 (App. Div. 2011). The decision to
seek to withdraw a guilty plea is not merely trial strategy,
and cannot be made by counsel. If a defendant has
entered a guilty plea and, before entry of final judgment,
desires to seek to withdraw that plea, whether because it
was allegedly entered in error, under duress, or other
reason, he is entitled to the assistance of counsel in
making such a request. See Davis, 239 F.3d at 286(“Given the occasionally complex standards governing
plea withdrawals . . . , it would be unreasonable to expect
a criminal defendant to navigate this area of law without
the competent advice of counsel.” (citation omitted)).
Id. at 386. Applying the rule to the facts of that case, the Supreme Court held that
Tigue had been completely denied assistance of counsel, despite his counsel’s
presence at the sentencing hearing:
Immediately after entering the guilty plea, Tigue sought
his trial counsel’s assistance to withdraw the plea, but his
attempts to contact counsel during the three weeks
between the plea and sentencing hearing went
unanswered. And the video of the sentencing hearing
demonstrates that Lundy merely stood to the side during
the plea withdrawal discussion and did not speak a word
in Tigue’s favor or otherwise offer his counsel or
assistance. To stand silent and refuse to act on a decision
that is personal to the defendant is no different than not
being present at all. It is a complete denial of counsel.
Id.-12-
We hold that the foregoing law applies in situations like Tramber’s,
where he entered into a pre-judgment sentencing agreement with the
Commonwealth that included the waiver of his right to appeal his conviction.
In its brief, the Commonwealth merely argues that Tramber had not
alleged any procedural or constitutional missteps and that he had not brought this
claim before the trial court. It also stated, incorrectly, that Tramber had not
requested an evidentiary hearing.
In his RCr 11.42 motion, Tramber specifically requested the
appointment of counsel and an evidentiary hearing as to this ground for relief. RCr
11.42(5) only requires a hearing “[i]f the answer raises a material issue of fact that
cannot be determined on the face of the record[.]” And in Bowling v.
Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), the Supreme Court stated, “[i]f
the record refutes the claims of error, there is no need for an evidentiary hearing.
A hearing is also unnecessary where the allegations, even if true, would not be
sufficient to invalidate the conviction.” (Citations omitted.) Here, we hold that the
allegations raised in this ground, while self-serving, cannot be refuted by the
record and that the trial court should have appointed counsel and held an
evidentiary hearing to properly review this allegation. Therefore, we must vacate
that portion of the trial court’s order.
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We note that if, after an evidentiary hearing, the court were to find
that the evidence established Tramber was denied counsel in relation to
withdrawing his sentencing agreement and that he was prejudiced as a result, such
as by the loss of his ability to directly appeal his conviction, Tramber would only
be entitled to a penalty phase. He would not be entitled to an entirely new trial.
As to Tramber’s remaining arguments – that the trial court abused its
discretion in issuing a blanket order denying his motion for relief; that he was
denied his right to appeal his sentence when his counsel failed to file a notice of
appeal; that his counsel failed to object to the prosecutor’s comments on the
credibility of two witnesses; that he was denied a fundamentally fair trial when his
counsel failed to request a mistrial related to comments the court made to the jury;
that his trial counsel failed to properly impeach a witness; and that his counsel
failed to object when the prosecutor defined “reasonable doubt” – we find no merit
for purposes of RCr 11.42 relief and decline to address them further.
For the foregoing reasons, the Jefferson Circuit Court’s order denying
Tramber’s motion for RCr 11.42 relief is vacated as set forth above, and this matter
is remanded for further proceedings related to whether trial counsel was ineffective
with regard to the sentencing agreement ground.
KRAMER, JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Demarcus Tramber, pro se Daniel Cameron
Eddyville, Kentucky Attorney General of Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
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