Timothy M. Tucker v. Commonwealth of Kentucky ( 2020 )

RENDERED: SEPTEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001104-MR
AND
NO. 2019-CA-001453-MR
TIMOTHY M. TUCKER APPELLANT
APPEALS FROM KENTON CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 17-CR-00972
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Timothy M. Tucker, pro se, appeals the orders of the Kenton
Circuit Court denying his motion to vacate judgment of his conviction and denying
his motion to amend final judgment, entered on July 11, 2019, and August 19,
2019, respectively. Following a careful review of the record, briefs, and law, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
On July 3, 2017, the Ludlow Police Department responded to a
burglary on Linden Street in Kenton County. The victim told officers that a set of
golf clubs had been stolen from his garage. He was able to retrieve footage of his
driveway from a neighbor’s security camera, which captured a man driving a gray
Honda Civic with missing hubcaps parked in front of the victim’s house. The
driver got out of the vehicle, wearing shorts and a white t-shirt with a logo on the
front. When another car drove by, the man started walking around the house;
when the car passed, he entered the garage and soon thereafter exited with a set of
golf clubs.
While at the scene, officers were asked to respond to another call only
two blocks away on Carneal Street. Upon arrival, officers found Tucker with the
same clothes and car depicted in the security camera footage from Linden Street.
Tucker had entered the Carneal Street residence by removing an air conditioner
and climbing through a window but was interrupted by the homeowner before he
was able to steal anything. The officers placed him in custody. Looking inside his
car, officers observed in plain view a white golf towel, club covers, and a
scorecard. The Linden Street victim was able to identify the items, and Tucker
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admitted to taking them from the residence. He then told officers that the golf
clubs were in the trunk of his gray Honda Civic, a fact confirmed by the officers.
The Carneal Street residents told officers that Tucker had been invited into the
home earlier but had left and was not granted permission to re-enter the residence.
On September 7, 2017, Tucker was indicted on two counts of second-
degree burglary,1 and on October 5, 2017, as a first-degree persistent felony
offender2 (PFO I) due to six prior felony convictions. With enhancements, Tucker
faced a maximum sentence of twenty years’ imprisonment without the possibility
of parole until ten years of his sentence was served. KRS 511.030.
Defense counsel negotiated with the Commonwealth to downgrade
Tucker’s PFO I to a PFO II. The plea agreement included a twenty-year prison
sentence but made Tucker eligible for parole after four years served, as opposed to
ten. Tucker accepted the plea agreement, and on June 6, 2018, the court issued a
final judgment on the guilty plea. Tucker acknowledged before the court that he
deserved his sentence and that his attorney had effectively represented him. He
1
Kentucky Revised Statutes (KRS) 511.030, a Class C felony.
2
KRS 532.080(3).
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lodged no complaints, despite having sent a letter to his attorney threatening to file
a bar complaint if he was not forthcoming with information about the case.
Prior to Tucker’s plea agreement, his brother was shot and killed in an
unrelated incident. The shooter was given a plea deal that included less prison
time than Tucker’s. Tucker alleges that his mother was pressured by the
prosecutor in that case to support the reduced sentence, and her refusal to do so
resulted in the (same) prosecutor being prejudiced against Tucker in his case.
After Tucker’s plea agreement, he moved to vacate his conviction
under RCr3 11.42 alleging ineffective assistance of counsel. The trial court denied
the motion finding Tucker’s claims to be without merit. Tucker then filed a CR4
60.02 motion, which was denied summarily. Neither motion was granted an
evidentiary hearing. Tucker appealed both orders, and the two cases were
consolidated by our Court.
STANDARD OF REVIEW
As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12
(Ky. 2002), the Strickland standard sets forth a two-prong test for ineffective
assistance of counsel.
First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors
3
Kentucky Rules of Criminal Procedure.
4
Kentucky Rules of Civil Procedure.
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so serious that counsel was not functioning
as the “counsel” guaranteed by the Sixth
Amendment. Second, the defendant must
show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so
serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To show
prejudice, the
defendant must show there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is the probability
sufficient to undermine the confidence in the
outcome.
Id. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 695.
Both Strickland prongs must be met before relief may be granted. “Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders the result unreliable.”
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Fairness is measured in terms of reliability. “The likelihood of a
different result must be substantial, not just conceivable.” Commonwealth v.
Pridham, 394 S.W.3d 867, 876 (Ky. 2012) (quoting Harrington v Ritcher, 562
U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011)).
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Mere speculation as to how other counsel might have
performed either better or differently without any indication of
what favorable facts would have resulted is not sufficient.
Conjecture that a different strategy might have proved
beneficial is also not sufficient. Baze [v. Commonwealth, 23
S.W.3d 619 (Ky. 2000)]; Harper v. Commonwealth, 978
S.W.2d 311 (1998). As noted by Waters v. Thomas, 46 F.3d
1506 (11th Cir. 1995) (en banc): “The mere fact that other
witnesses might have been available or that other testimony
might have been elicited from those who testified is not a
sufficient ground to prove ineffectiveness of counsel.”
Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003), overruled on other
grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). “No
conclusion of prejudice . . . can be supported by mere speculation.” Jackson v.
Commonwealth, 20 S.W.3d 906, 908 (Ky. 2000) (citation omitted).
FAILURE TO CALL WITNESSES
Tucker alleges that counsel should have gone to trial and called his
mother as a witness. According to his RCr 11.42 motion, his mother was upset
that his brother’s shooter got less time than Tucker and that her feelings of
injustice caused the prosecutor to be vindictive toward Tucker. However, Tucker
fails to allege that testimony from his mother would have included any exculpatory
statements. Additionally, nothing in the record suggests that Tucker’s mother was
with him when the burglaries occurred or that she possessed any knowledge related
thereto. The mere fact that Tucker’s mother could have been called as a witness is
insufficient to prove prejudice. Hodge, 116 S.W.3d at 470 (“[M]ere fact that other
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witnesses might have been available or that other testimony might have been
elicited from those who testified is not a sufficient ground to prove ineffectiveness
of counsel.”).
FORCED ACCEPTANCE OF PLEA DEAL
Tucker alleges that he was forced to accept the plea deal. He believes
that his defense counsel showed prejudice by working with the same prosecutor
who was negotiating a plea deal for the man who shot Tucker’s brother. This
claim is also without merit. No conflict exists for a prosecutor to work on two
separate and unrelated cases, nor would such affect defense counsel’s work on one
of those cases. Although Tucker believes the verdict could have been different had
the prosecutor recused himself, his assertions are speculative at best, and the
evidence against him was overwhelming. Simply put, Tucker fails to substantiate
any claim against the prosecutor, nor does he prove any deficiency in defense
counsel’s performance in negotiating a plea agreement with the prosecutor on
Tucker’s behalf. He has presented no evidence in support of his claim that he was
forced to accept the plea deal. Consequently, as there was no evidence of
prejudice against Tucker, the trial court properly found that defense counsel
rendered effective assistance.
Tucker also argues disparate sentencing between that of his brother’s
shooter and himself is evidence of prejudice and ineffective assistance of counsel.
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To require courts to compare sentences for different crimes with different
circumstances would make the sentencing process not only laborious but
impractical. Furthermore, Tucker pled guilty to an amended sentence of PFO II
despite the fact he had been convicted of six prior felony offenses. That
amendment substantially reduced Tucker’s parole eligibility. A prosecutor has
wide discretion to offer plea agreements to criminal defendants within the
sentencing guidelines. It is not the Court’s job to second-guess the discretion of
the prosecutor as to what plea deal he does or does not offer. Moreover, the
prosecutor’s conduct in offering plea deals is irrelevant to the performance of
Tucker’s own counsel. Therefore, the alleged disparate sentencing in Tucker’s
case does not support a claim of ineffective assistance of counsel.
FALSE AND MISLEADING STATEMENTS
Tucker further alleges that the video recording obtained by the
Commonwealth was false and misleading in that it does not show any person
entering the Linden Street residence. However, the video clearly shows Tucker
entering the garage at Linden Street and leaving with a set of golf clubs. Again,
Tucker’s claim is without merit.
Additionally, Tucker alleges a Brady5 violation. Because this issue
was not alleged in his motion before the trial court, and raised only on appeal, we
5
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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decline to address it. For this Court to have authority to review a claim, the trial
court must have been given an opportunity to correct its alleged error. Harrison v.
Leach, 323 S.W.3d 702, 708-09 (Ky. 2010).
GUILTY PLEA
Tucker finally alleges that, because there was only circumstantial
evidence regarding the Carneal Street burglary, he should not have pled guilty.
While there was no evidence that Tucker stole anything from Carneal Street,
officers found that Tucker had unlawfully entered the home. A charge of second-
degree burglary does not require that anything be stolen, only entry into the home
and intent to commit a crime. Thus, Tucker could be found guilty of second-
degree burglary absent evidence that anything was actually stolen.
Furthermore, there was video proof that he entered the Linden Street
residence, from which he confessed to stealing the golf clubs. Considering this
evidence, it was not unreasonable for defense counsel to advise Tucker to accept
the plea deal. In fact, it was a decision that Tucker acknowledged was appropriate
and just at the hearing. Moreover, evidence for convicting on either offense was
sufficient for the sentence Tucker received as both felony offenses ran
concurrently. As earlier noted, had he gone to trial, Tucker may well have
received the maximum sentence without the possibility of parole for ten years, as
opposed to serving only four years until he was eligible. Tucker has not proven
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prejudice, nor has he proven that the assistance provided by his defense counsel
was deficient.
CR 60.02 MOTION
This issue was not specifically addressed by Tucker in his appellate
brief. Failure to present an argument on this issue on appeal constitutes
abandonment and/or waiver. “An appellant’s failure to discuss particular errors in
his brief is the same as if no brief at all had been filed on those issues.” Milby v.
Mears, 580 S.W.2d 724, 727 (Ky. App. 1979) (citation omitted). As such, we need
not discuss this issue.
CONCLUSION
Therefore, for the foregoing reasons, the orders entered by the Kenton
Circuit Court are AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy M. Tucker, pro se Daniel Cameron
Lexington, Kentucky Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
Frankfort, Kentucky
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