Robert Schierer v. Commonwealth of Kentucky ( 2021 )

RENDERED: MAY 14, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0477-MR
ROBERT SCHIERER APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 14-CR-00042
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
MAZE, JUDGE: This appeal centers upon alleged ineffective assistance of
counsel in the entry of a guilty plea to wanton murder stemming from the death of
an eight-week-old infant while in appellant Robert Schierer’s care. Finding no
error in the thorough and well-reasoned decision of the Kenton Circuit Court, we
affirm its denial of RCr1 11.42 relief.
In January 2014, a Kenton County grand jury indicted appellant for
the offense of murder under KRS2 507.020 for wantonly causing the death of an
infant child under his exclusive custody and control. He subsequently appeared
with his trial counsel, Honorable Harry Hellings and Dean Pisacano, entered a plea
of guilty to the charge of murder and, on May 12, 2015, was sentenced to a term of
thirty years’ imprisonment.
Pertinent to the issues before us, on March 21, 2018, appellant filed a
pro se motion to vacate his sentence pursuant to RCr 11.42, raising several
complaints concerning the effectiveness of the assistance rendered by his trial
counsel and requesting both an evidentiary hearing and appointment of counsel to
represent him in prosecuting his motion. After the trial court appointed counsel to
represent appellant, the Commonwealth filed a response asserting that because the
record conclusively refuted each of appellant’s claims, an evidentiary hearing was
not warranted. In January 2019, the trial court conducted a hearing to determine
whether an evidentiary hearing was necessary to rule on the RCr 11.42 motion.
The focus of that hearing was appointed counsel’s concern about the submission of
1
Kentucky Rule of Criminal Procedure.
2
Kentucky Revised Statute.
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the affidavit of trial counsel Pisacano regarding at least one of the claims raised in
the RCr 11.42 motion. The trial court ultimately denied appellant’s motion for
post-conviction relief without conducting an evidentiary hearing.
In its February 22, 2019 order, the trial court concluded that the
record, taken as a whole, conclusively refuted appellant’s claims that trial counsel
was ineffective in failing to investigate the possibility that a third party caused the
death of the child; that trial counsel failed to comply with a court order to provide
copies of all discovery material; that trial counsel misadvised him as to parole
eligibility; that trial counsel was ineffective in failing to move to suppress autopsy
photos of the infant victim; and that trial counsel was ineffective in advising him to
enter a guilty plea while maintaining his innocence concerning the crime charged.
Although the trial court’s determination with respect to misadvice concerning
parole eligibility is the only of these rulings directly challenged in this appeal,
appellant also argues that the trial court erred in directing trial counsel to submit an
affidavit and in utilizing that affidavit to deny relief without a hearing, as well as in
ruling that there is no basis for permitting discovery in post-conviction
proceedings.
Where the trial court has denied an RCr 11.42 motion without the
benefit of an evidentiary hearing, the task before an appellate court is to determine
“‘whether the [RCr 11.42] motion on its face states grounds that are not
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conclusively refuted by the record and which, if true, would invalidate the
conviction. Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967).’” Baze v.
Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000), overruled on other grounds by
Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Pertinent to the instant
appeal, in Commonwealth v. Elza our Supreme Court clarified a movant’s burden
in establishing ineffective assistance of counsel in the entry of a guilty plea:
In order to prove ineffective assistance of counsel where
a guilty plea has been entered, the movant must establish:
(1) that counsel made errors so serious that
counsel’s performance fell outside the wide range
of professionally competent assistance; and (2)
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.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky.
2001) (considering claim of ineffective assistance of
counsel brought pursuant to RCr 8.10 motion to
withdraw a guilty plea). “[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.
284 S.W.3d 118, 120-21 (Ky. 2009). Application of these principles to the issues
advanced in this appeal discloses no error in the thorough and well-reasoned
decision of the trial court.
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I. Use of Counsel Pisacano’s Affidavit to Deny Relief Without a Hearing
Citing Knuckles v. Commonwealth, 421 S.W.3d 399, 401 (Ky. App.
2014), appellant initially argues that “the Commonwealth’s use of affidavits, and
the circuit court’s reliance thereupon, was improper in the absence of an
evidentiary hearing.” Id. The affidavit3 in question was the product of a status
conference conducted on appellant’s motion to compel the production of discovery
to assist in the preparation of his RCr 11.42 motion. Appellant insists that the trial
court improperly relied upon the affidavit to dispose of his argument that trial
counsel failed to properly investigate appellant’s claim that another person had
admitted causing the death of the child. In its order denying the RCr 11.42 relief,
the trial court stated:
The information came from the mother of the victim who
was then the defendant’s girlfriend and the record
includes the affidavit of defense counsel Dean Pisacano
stating that he knew about the report that a third party
had admitted to the mother of the victim that he was
responsible for the child’s death; that he (Pisacano) knew
that the third party had been in jail on an unrelated charge
and so he (Pisacano) had ordered copies of all phone
calls between that third party and the mother of the child
and that there “were no references or inferences that
suggested that this third party was responsible for the
injury to the child.” This evidence refutes defendant’s
3
The Court notes that although the affidavit is discussed by both parties in their briefs and the
trial court alludes to the affidavit in its order, a diligent search disclosed no filing of the affidavit
in the record. Neither has the affidavit been appended to either brief. However, because the
contents of the affidavit are not dispositive of the issue before us, and neither party disputes its
existence, we will address the trial court’s use of the affidavit in ruling on the RCr 11.42 motion.
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assertion that his counsel failed to conduct an adequate
pre-trial investigation into the alleged admission that
another person had been responsible for the death of the
child.
Were that the end of the trial court’s analysis, there might be some merit to
appellant’s contention that he was denied the due process of law in the use of the
affidavit to deny his claim without conducting an evidentiary hearing. However,
the trial court went on to discuss in detail factors which, apart from the information
contained in the affidavit, prove dispositive of the ineffective assistance claim.
Contrary to his current allegations with respect to the investigation
into the third party’s admission of guilt to the crime, the trial court specifically
found that at the time it accepted his plea, appellant answered the following
questions in the affirmative:
You reviewed the indictment and told your attorneys all
the facts known to you about these charges? And they
are fully factually informed by you about your case,
including all of your witnesses?
They investigated and are fully informed about your case?
You’ve discussed all of your defenses with them. . . .?
You discussed potential trial strategies with them, which
may have included witness availability, witness
believability, and why counsel may or may not call those
witnesses at trial?
You waive the right to confront and cross-examine all the
persons called to testify against you to prove your guilt?
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You waive the right to produce evidence including
persons to testify about your innocence or in your
defense?
You were alone with the child the entire time, correct?
In addition to citing trial counsels’ affirmative responses to its
questions regarding whether it did a full investigation of potential witnesses and
discussed trial strategy with appellant, the trial court relied upon trial counsel
Heller’s statement during the colloquy that it was indisputable that the child had
died from trauma; that appellant was the child’s sole caretaker at the time of injury;
and that the medical evidence showed that the trauma leading to the child’s death
had to have occurred during the timeframe that the child was in appellant’s sole
care. Most importantly, the trial court relied upon appellant’s own admission that
although he could not believe his actions were traumatic enough to have caused the
child’s death, because of the timeframe he concluded that his actions did in fact
cause the trauma to the child. The trial court then concluded that, taken as a whole,
the record refutes appellant’s claim that counsel was ineffective in failing to
conduct further investigation into the possibility that a third party caused the death
of the child.
It is interesting to note that appellant does not challenge the trial
court’s decision regarding counsels’ alleged ineffectiveness in failing to investigate
the third party, focusing instead on the procedural issue of the use of an affidavit in
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the denial of that claim. We question the relevance of questioning the use of an
affidavit to dispose of an issue appellant has now abandoned. Nevertheless,
viewing the trial court’s findings and conclusions in light of the Elza standard, we
are convinced that appellant failed to demonstrate that his counsels’ performance
fell outside the wide range of professionally competent assistance or that any
deficiency in counsels’ 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 have refused to plead guilty and would have insisted on his right
to trial.
II. The Right to Discovery in RCr 11.42 Proceedings
Appellant next argues that the trial court erred in concluding that there
was no legal basis for discovery in RCr 11.42 proceedings. Citing Hiatt v. Clark,
194 S.W.3d 324 (2006), for the proposition that a request for trial counsels’ files
does not constitute discovery, appellant insists that the trial court erred in its ruling
that counsel had not complied with a court order to provide him with copies of all
discovery material. We perceive no error.
In his motion to compel discovery and related correspondence to the
trial court, appellant sought “a complete copy of Discovery, plea agreement, final
judgment, and DVD’s of all the hearings related to [his] case.” It thus appears that,
unlike the situation in Hiatt, appellant was not requesting trial counsels’ “entire
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file” but rather sought specifically delineated discovery material. Contrary to
appellant’s characterization of the holding in Hiatt, that case merely stands for the
proposition that under proper circumstances, a client may obtain his entire file
from former counsel, including work product:
The facts of this case provide a specific scenario in
which work product, properly characterized as such,
may be requested and obtained by a former criminal
client where that criminal defendant now seeks post-
conviction relief alleging ineffective assistance of
counsel and therefore needs his file.
Id. at 330. Thus, the trial court’s statement that discovery is not available in
context of RCr 11.42 proceedings in no way runs afoul of the holding in Hiatt:
Although the Court of Appeals is correct that
discovery is not authorized under Kentucky law in an
RCr 11.42 action (or other post-conviction proceeding
for that matter), we note that Appellant is not seeking
discovery. Rather, Appellant is seeking to obtain that
which is his in the first place—his file.
Id. at 327 (emphasis added).
The bottom line is that the record in this case clearly shows that
appellant was provided the information he sought. At a status conference
conducted on this subject, former counsel Pisacano advised the court that the items
appellant requested had been provided, with the exception of the tapes of jail
telephone conversations between the alleged third party and the victim’s mother.
The record contains a subsequent order stating that the requested “DVD tapes are
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enclosed and being sent to the Defendant from his attorney, Hon. Dean Pisacano.”
Furthermore, the trial court confirmed at a later status hearing in the presence of
appellant and his newly appointed counsel that the discovery in the case had been
tendered to the court file by Pisacano and that the trial court had forwarded copies
of everything to appellant. At that point, neither appellant nor his appointed
counsel contended that those items had not been provided.
Neither does appellant specifically argue in this appeal that he did not
receive the requested items, rather taking issue with the trial court’s statement that
discovery is not available in RCr 11.42 proceedings and requesting for the first
time on appeal that Pisacano turn over his entire file. Because the trial court did
not deprive appellant of the discovery items he sought, he cannot now complain
that it improperly denied him a copy of counsels’ entire file which he did not
request.
III. Misadvice as to Maximum Penalty and Parole Eligibility
Appellant’s final allegation of error centers upon his contention that
trial counsels’ failure to properly advise him of the maximum possible penalty and
parole eligibility precluded him from making an informed decision as to the plea
offer extended by the Commonwealth. In support of this contention, appellant
claims that trial counsel told him that if he declined the Commonwealth’s plea
offer, he would receive a life sentence without the possibility of parole. He also
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maintains that counsel gave him inaccurate information concerning parole
eligibility under the Commonwealth’s offer. As noted in the trial court’s order,
appellant maintained that counsel had incorrectly informed him that accepting a
sentence of thirty years at 85% parole eligibility is the same as accepting a twenty-
year sentence at 85% parole eligibility. Citing Hughes v. Commonwealth, 87
S.W.3d 850 (Ky. 2002), the trial court correctly observed that violent offenders
sentenced to a term of years are eligible for parole after serving 85% of the
sentence imposed or twenty years, whichever is less. Thus, the trial court found
that there is a discrepancy of three years concerning parole eligibility for a twenty-
year sentence as opposed to a thirty-year sentence. Nevertheless, the trial court
concluded that appellant failed to “convince the court that a decision to reject the
plea bargain would have been rational under the circumstances.” Padilla v.
Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010).
In reaching this conclusion, the trial court outlined the following facts:
1) appellant’s acknowledgement in the colloquy that he understood that the penalty
for the crime charged is twenty years’ to fifty years’ or life imprisonment; 2) his
acknowledgement that trial counsel had discussed parole eligibility and that given
the nature of the crime he would have to serve 85% of the sentence imposed; 3) his
statement in the pre-sentence interview that he was pleading guilty to avoid the
possibility of life imprisonment; and 4) the fact that at sentencing the
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Commonwealth emphasized the difference in parole eligibility for a twenty-year
sentence as opposed to a thirty-year sentence.
In addition, our review of the colloquy surrounding the guilty plea
discloses that the trial court made abundantly clear to appellant that the plea offer
included a recommendation of a thirty-year sentence. It also made clear that
because of the nature of the crime charged, appellant would not be eligible for
parole until he had served 85% of the sentence. The trial court emphasized to
appellant that although it was inclined to accept the Commonwealth’s sentencing
recommendation, he could argue for a lesser sentence at the sentencing hearing. At
that hearing, appellant’s counsel did argue for a twenty-year sentence, stating that
under a twenty-year sentence he would be eligible for parole in 17 years. Thus, we
find ourselves in complete agreement with the trial court’s conclusion that, taken
as a whole, the record clearly refutes the assertion that trial counsel was ineffective
in misinforming appellant of his parole eligibility. Further, given the evidence as
to the extent of the injuries inflicted upon the infant, appellant’s acknowledgement
that his actions must have given rise to the trauma causing the death of the child,
and the fact that he was the sole caregiver during the time the trauma was inflicted,
we cannot conclude that the rejection of the Commonwealth’s offer of thirty-years
would have been rationale under the circumstances.
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IV. Conclusion
In sum, nothing in this record supports appellant’s claims of
ineffective assistance of trial counsel or his assertions of due process deprivations
in the disposition of his RCr 11.42 motion. Rather, we are fully convinced that this
appeal falls squarely within the rationale set out in Elza:
Furthermore, as detailed above, the record clearly
establishes that Elza’s guilty plea was voluntary, and that
the plea agreement was reasonable in light of the
circumstances. “The subsequent presentation of
conclusory allegations unsupported by specifics is
subject to summary dismissal, as are contentions that in
the face of the record are wholly incredible.” Edmonds
[v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006)]
quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct.
1621, 52 L. Ed. 2d 136 (1977). The trial court properly
rejected Elza’s motion without conducting an evidentiary
hearing.
284 S.W.3d at 122.
Accordingly, the order of the Kenton Circuit Court denying appellant’s
motion for RCr 11.42 relief without a hearing is hereby affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kieran J. Comer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van de Rostyne
Assistant Attorney General
Frankfort, Kentucky
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