RENDERED: AUGUST 21, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-001780-DG
FRANK COLEMAN APPELLANT
ON DISCRETIONARY REVIEW FROM HARDIN CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, JUDGE
ACTION NOS. 18-XX-00012, 18-XX-00013, & 18-XX-00014
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MCNEILL,
JUDGES.
MCNEILL, JUDGE: On August 23, 2016, the General Sessions Court of Sevier
County, Tennessee entered an “ORDER GRANTING BAIL FOR DOMESTIC
ABUSE” (hereinafter “Tennessee Order”) in a domestic violence case against
Appellant, Frank Coleman, Jr. The alleged victim in that case was Towanna
Turner. Appellant was subsequently indicted by a Sevier County, Tennessee grand
jury on one count of aggravated domestic assault against Ms. Turner. The
Tennessee charges were ultimately dismissed on April 23, 2018, due to what
appears to be the inability to locate Ms. Turner.
On October 30, 2017, Appellant pleaded guilty in Hardin District
Court to three counts of violating a foreign protection order based on the terms of
the Tennessee Order. He was sentenced to twelve months’ incarceration, reduced
to sixty days, with credit for fifty-three days served. He was also assessed fines
and costs totaling $215.00. Sometime thereafter, Appellant was arrested again for
violating the terms of the Tennessee Order. In response, the Commonwealth filed
a motion in Hardin District Court to revoke Appellant’s remaining probated
sentence, totaling 305 days.
According to Appellant, it was later discovered that Appellant’s trial
counsel had not reviewed the Tennessee Order prior to Appellant’s pleading guilty
to three counts of violating a foreign protection order. The appellate division of
the Kentucky Department of Public Advocacy filed a motion to vacate those guilty
pleas pursuant to RCr1 11.42. The Hardin District Court held a hearing on April 9,
2018, and denied Appellant’s motion in an opinion and order dated June 14, 2018.
On November 5, 2018, the Hardin Circuit Court affirmed the district court’s order
on the basis that the Tennessee Order qualified as a foreign protective order under
1
Kentucky Rules of Criminal Procedure.
-2-
Kentucky law and, thus, Appellant could not satisfy the RCr 11.42 standard. This
Court granted discretionary review.
I. STANDARD OF REVIEW
“The Sixth Amendment to the United States Constitution guarantees
criminal defendants the effective assistance of counsel.” Commonwealth v.
Pridham, 394 S.W.3d 867, 870 (Ky. 2012) (citing Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). See also RCr 11.42. In cases
alleging ineffective assistance of counsel, appellate courts “review the trial court’s
factual findings only for clear error, but its application of legal standards and
precedents . . . we review de novo.” Pridham, 394 S.W.3d at 875. “[T]o be
entitled to relief from a guilty plea on the ground of ineffective assistance of
counsel a defendant must show both that counsel provided deficient assistance and
that he, the defendant, was prejudiced as a result.” Id. (citing Strickland, 466 U.S.
at 687, 104 S. Ct. 2052). With these standards in mind, we turn to the applicable
law and the facts of the present case.
II. ANALYSIS
Appellant’s sole argument on appeal is that “[t]he Tennessee bail
condition does not qualify as a protective order. Therefore, trial counsel rendered
ineffective assistance of counsel by failing to investigate this issue.” For the
-3-
following reasons, we disagree. Four statutes are relevant to our analysis: KRS2
403.763; KRS 403.720; 18 U.S.C.3 § 2265; and 18 U.S.C § 2266. KRS 403.763
provides in pertinent part as follows:
(1) Violation of the terms or conditions of an order of
protection after the person has been served or given
notice of the order shall constitute contempt of court and
a criminal offense under this section. Once a criminal or
contempt proceeding has been initiated, the other shall
not be undertaken regardless of the outcome of the
original proceeding.
....
[(4)](b) Violation of an order of protection is a Class A
misdemeanor.
(Emphasis added.)
KRS 403.720(6) defines order of protection as “an emergency
protective order or a domestic violence order and includes a foreign protective
order[.]” (Emphasis added.) Section three of that provision defines a foreign
protective order as “any judgment, decree, or order of protection which is
entitled to full faith and credit pursuant to 18 U.S.C. sec. 2265 that was issued
on the basis of domestic violence and abuse[.]” (Emphasis added.) The
dispositive question here is whether the Tennessee Order qualifies as a “foreign
2
Kentucky Revised Statutes.
3
United States Code.
-4-
protective order” under the relevant federal statutes and, therefore, constitutes an
order of protection under Kentucky law.
18 U.S.C § 2265 is a statute dealing with protection orders that serves
as part of a comprehensive federal statutory scheme known as the “Violence
Against Women Act.” 34 U.S.C. § 12101-12113. 18 U.S.C § 2265 was enacted to
permit and encourage states to apply full faith and credit to protection orders issued
by sister states. That provision is concerned primarily with ensuring that the
issuance of protection orders satisfies basic notions of due process and notice
concerning the foreign forum and resulting order. Appellant does not challenge the
jurisdiction of the General Sessions Court of Sevier County, Tennessee. He has
not raised any violation of due process, notice, or any other concern enumerated in
18 U.S.C § 2265 as it relates to the Tennessee Order or its accompanying
proceedings. Therefore, we need not address 18 U.S.C § 2265 any further. Rather,
we must address 18 U.S.C § 2266(5)(A), which defines “protection order”
referenced in 18 U.S.C § 2265 as:
any injunction, restraining order, or any other order
issued by a civil or criminal court for the purpose of
preventing violent or threatening acts or harassment
against, sexual violence, or contact or communication
with or physical proximity to, another person, including
any temporary or final order issued by a civil or criminal
court whether obtained by filing an independent action or
as a pendente lite order in another proceeding so long as
any civil or criminal order was issued in response to a
-5-
complaint, petition, or motion filed by or on behalf of a
person seeking protection[.]
(Emphasis added.)
We now turn to the specific language contained in the Tennessee
Order to determine whether it is a qualifying protective order under 18 U.S.C
§ 2265 and, more specifically, 18 U.S.C § 2266(5)(A). As previously stated, the
Tennessee Order was titled “ORDER GRANTING BAIL FOR DOMESTIC
ABUSE.” It concludes that Appellant is a threat to the victim, Ms. Turner, and
contains multiple provisions enjoining Appellant from “harassing” and
“threatening” her. It was signed by Appellant and a judge of the General Sessions
Court of Sevier County, Tennessee.
Appellant asserts that “Tennessee would not have interpreted the bail
order as a protective order.” In support, Appellant presents a letter from
Appellant’s defense counsel in the underlying Tennessee case providing that, under
Tennessee statutory law, a violation of a condition of release would not constitute a
violation of a foreign protection order.4 However, the relevant definitional statute
at issue here, 18 U.S.C § 2266(5)(A), includes “any other order” in its definition of
a protection order. Qualifying orders need not be an “emergency protection order”
4
In further support, Appellant provides a letter from the District Attorney General of Sevier
County, Tennessee stating that a condition of release violation would result in arrest and a
finding of contempt.
-6-
or a “domestic violence order.” Furthermore, the fact that the Tennessee Order
constitutes a conditional discharge order is of no consequence here. Rather, it is
clear that at least one purpose behind issuing the Tennessee Order was to prevent
violence or harassment against “another person,” i.e., the alleged victim, Ms.
Turner. Therefore, it is a qualifying protection order under the plain language of
18 U.S.C § 2266(5)(A) and, thus, Kentucky law.
Appellant further argues that the Tennessee Order “is not an EPO or
DVO as is required by KRS 403.7527.” KRS 403.7527(1) provides that “[a] copy
of a foreign protective order may be filed in the office of the clerk of any court of
competent jurisdiction of this state.” (Emphasis added.) The remainder of the
statute provides procedures for filing, etc., if one elects to file a foreign protective
order. It is permissive, not mandatory. KRS 403.7527(4). Therefore there was no
requirement that anyone file the Tennessee Order pursuant to KRS 403.7527 in
order for it to be afforded full faith and credit. See also Louise Everett Graham and
James E. Keller, Domestic violence—Violence Against Women Act, 15 KY. PRAC.
DOMESTIC RELATIONS L. § 5:16 (2019).
Lastly, Appellant briefly asserts that he was charged and convicted
under KRS 403.7529, “Authentication of foreign protective order,” instead of KRS
-7-
403.763.5 However, he does not elaborate on why he is entitled to relief under RCr
11.42 or Strickland. Any erroneous reference to KRS 403.7529 constitutes a slight
defect that did not “prejudice the substantial rights of the defendant on the merits.”
RCr 6.12. It certainly does not qualify for relief under RCr 11.42.
In sum, because the Tennessee Order constitutes a qualifying
protection order under 18 U.S.C. § 2265 and, therefore, a foreign protective order
under KRS 403.720(3), Appellant was not prejudiced under Strickland.
Accordingly, we need not address the alleged defects in defense counsel’s
performance.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Hardin
Circuit Court.
ALL CONCUR.
5
The Kentucky Court of Justice database, CourtNet, specifically provides the following in each
of the three underling cases: “VIOLATION OF FOREIGN E.P.O./D.V.O. - 403.7529.” As
previously stated, however, nothing in the relevant law requires a qualifying protection order to
be an EPO or DVO.
-8-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Samuel Potter Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Shelt Michael Lewis
Special Assistant Attorney General
Elizabethtown, Kentucky
-9-