RENDERED: FEBRUARY 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0670-MR
FREDERICK L. MILLER APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 15-CR-00751
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND McNEILL, JUDGES.
McNEILL, JUDGE: Appellant, Frederick L. Miller (“Miller”), pro se, appeals the
order of the Warren Circuit Court denying his motion to vacate, set aside, or
correct his sentence pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42.
Following a careful review of the record and the law, we affirm.
I. BACKGROUND
On September 23, 2015, Miller was indicted by the Warren County
Grand Jury on 14 counts of criminal activity primarily relating to possessing and
trafficking in controlled substances. Miller was also indicted on one count of
being a persistent felony offender in the first degree (PFO I). Following a jury
trial, Miller was convicted of seven counts of trafficking in a controlled substance
in the first degree, one count of possession of drug paraphernalia, one count of
operating a motor vehicle on a suspended or revoked operator’s license, and one
count of being a persistent felony offender in the first degree (PFO I). Due to the
PFO enhancement, Miller was sentenced to 18 years’ imprisonment.
The PFO I charge and subsequent jury verdict against Miller were
predicated on the following convictions: a December 23, 2009 conviction for
unlawful transaction with a minor in the second degree in Case No. 03-CR-00204;
an April 2, 2004 conviction for failure to register as a sexual offender in Case No.
03-CR-00014, enhanced by a conviction for PFO I in Case No. 03-CR-00379; a
November 18, 1987 conviction for trafficking in a schedule two narcotic controlled
substance in Case No. 87-CR-00390; a June 4, 1987 conviction for criminal
attempt to commit sodomy in the first degree and being a persistent felony offender
in the second degree in Case No. 86-CR-00190; and a February 24, 1982
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conviction for two counts of wanton endangerment in the first degree in Case No.
81-CR-00452.
During the trial, and later, between the jury verdict and the penalty
phase of his proceedings, Miller’s counsel moved for a directed verdict of acquittal
on the PFO I charge. The circuit court denied those motions, and Miller was
ultimately convicted and sentenced. Miller appealed the circuit court’s denial of
his motions for a directed verdict, and this Court affirmed on direct appeal.1
On July 16, 2018, Miller filed his motion pursuant to RCr 11.42. The
motion was denied by order of the Warren Circuit Court on March 23, 2020, and
this appeal followed.
II. STANDARD OF REVIEW
“We review the trial court’s denial of an RCr 11.42 motion for an
abuse of discretion.” Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App.
2014). On an appeal from an order denying an RCr 11.42 motion without an
evidentiary hearing, we review “whether the motion on its face states grounds that
are not conclusively refuted by the record and which, if true, would invalidate the
conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). A
hearing is only required if an RCr 11.42 motion raises an issue that cannot be
1
Miller v. Commonwealth, No. 2016-CA-000748-MR, 2017 WL 3129216 (Ky. App. Jul. 21,
2017).
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determined on the face of the record. RCr 11.42(5); Fraser v. Commonwealth, 59
S.W.3d 448, 455 (Ky. 2001). A trial court’s findings will not be disturbed absent a
finding of clear error. Commonwealth v. Payton, 945 S.W.2d 424, 425 (Ky. 1997).
III. ANALYSIS
On appeal, Miller argues that he received ineffective assistance of
counsel when: (1) his trial counsel failed to object to improper character evidence
and inadmissible hearsay statements; (2) his trial counsel failed to call a witness
from the Department of Corrections to explain that the predicate offense for the
PFO I charge expired outside the statutory timeframe to qualify as a predicate
offense; (3) his trial counsel failed to investigate his prior convictions and to put
forth mitigating evidence at the penalty phase of his trial proceedings; (4) his trial
counsel failed to object to jury instructions regarding the PFO I charge; (5) his trial
counsel failed to object to alleged prosecutorial misconduct; and (6) his trial
counsel denied him of his right to testify under the Fifth Amendment to the United
States Constitution. Miller also argues that he was entitled to an evidentiary
hearing on the claims below. In addition, Miller appears to argue that his appellate
counsel on direct appeal was ineffective.
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), the United States Supreme Court set forth a two-part test for
ineffective assistance of counsel claims. A movant is only entitled to relief when
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his counsel’s performance was both deficient and actually prejudicial to the
outcome in his case. Id. at 687, 104 S. Ct. at 2064. To prove that counsel was
deficient, the defendant must show that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. With regard to prejudice, “[t]he defendant must show that 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 a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.
Ct. at 2068.
A. Trial Counsel’s Failure to Object to Testimony of Whitney Taylor
and Rena Martin
Miller argues that his trial counsel was ineffective by failing to object
to improper character evidence provided through the trial testimony of Whitney
Taylor and Rena Martin. At trial, both witnesses were called to testify on behalf of
the Commonwealth. Taylor testified that she had previously lived with Miller and
was romantically involved with him for a brief period, but that their relationship
was eventually limited to the business of buying and selling drugs. She testified
that she had purchased cocaine from Miller in the past, and that Miller had taught
her how to sell drugs, but that she did not share any of the profits of her drug sales
with Miller.
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Martin testified that she had also lived with Miller and was in a
romantic relationship with him for a brief period. She also testified that Miller
would advise her on how to cook and sell drugs, and that she would buy drugs
from Miller to sell to other individuals. During both Taylor’s and Martin’s
testimonies, the Commonwealth also played for the jury recordings of wiretapped
phone conversations between the two witnesses and Miller regarding drug activity.
Miller contends that the Commonwealth elicited testimony from
Taylor and Martin to portray him as a “habitual drug dealer.” Miller’s contention
that his counsel was ineffective for failing to object to the testimony of Taylor and
Martin is based on Kentucky Rule of Evidence (KRE) 404, which generally
prohibits the use of evidence of a person’s character or bad acts to prove action in
conformity therewith on a particular occasion.
The circuit court found that Miller failed to explain how the testimony
of Taylor and Martin prejudiced him. RCr 11.42(2) provides that a motion “shall
state specifically the grounds on which the sentence is being challenged and the
facts on which the movant relies in support of such grounds.” When a motion
under RCr 11.42 fails to state grounds upon which relief may be granted, the
motion may be properly denied without an evidentiary hearing. Fraser, 59 S.W.3d
at 455. We agree with the circuit court that Miller did not specify any facts to
support an argument that the testimony of Taylor and Martin was prohibited
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character evidence under KRE 404, nor did he provide any more than the
conclusory allegation that the Commonwealth used the testimony to “portray
Miller as a habitual drug dealer and deliberately and methodically [elicit]
inadmissible testimony relating to past drug dealing by Miller.”
Moreover, the record does not support Miller’s claim that his trial
counsel failed to object on the grounds that Taylor’s or Martin’s testimony
constituted impermissible character evidence. Prior to Taylor taking the stand,
Miller’s trial counsel did formally object to Taylor’s testimony in a bench
conference:
Judge, as far as Ms. Taylor goes, I know that they are
going to question her about some drug transactions,
things like that. In part of the e-mail I received from [the
Commonwealth] regarding Ms. Taylor he indicated there
would be testimony regarding Mr. Miller teaching her
how to sell drugs. I would object to any line of testimony
or any line of questioning in that manner. I do think that
it goes beyond the scope of what the proof has been in
this case . . . and I think that would go more to his
character, more [KRE] 404(b), which we never received
notice of.
The Commonwealth responded by explaining that Taylor’s testimony was relevant
to its theory of the case because Taylor was part of an alleged drug syndicate
involving Miller. The circuit judge overruled the objection of Miller’s counsel,
noting that he believed Taylor’s testimony was relevant to the concept of Miller
being involved in a criminal enterprise. Similarly, prior to Martin’s testimony,
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Miller’s counsel approached the bench and stated a nearly identical objection on
the record. The circuit judge overruled the objection on the same grounds.
Accordingly, because Miller’s trial counsel did object to Taylor’s and
Martin’s testimony based on improper character evidence, we find no error in her
representation in this respect, and we affirm the finding of the circuit court with
respect to this issue.
B. Trial Counsel’s Failure to Object to Recording of Conversation
with Deonta Yarbrough
Next, Miller alleges that his trial counsel was ineffective by failing to
object to a recording of a telephone conversation between Miller and Deonta
Yarbrough that was played at trial. Miller argues that because neither he nor
Yarbrough testified at trial, there was no way to verify that the voice on the other
end of the recording was Yarbrough’s.
Again, Miller fails to state with specificity the evidence on the
recording that would have been precluded by a successful objection by counsel, or
how he was prejudiced by his counsel’s decision not to object to the recording.
“Conclusory allegations that counsel was ineffective without a statement of the
facts upon which those allegations are based do not meet the rule’s specificity
standard and so warrant a summary dismissal of the motion.” Roach v.
Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (internal quotation marks
omitted).
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Miller further argues that regardless of the performance of his trial
counsel, the circuit court abused its discretion by allowing the recording to be
considered. “It is not the purpose of RCr 11.42 to permit a convicted defendant to
retry issues which could and should have been raised in the original proceeding,
nor those that were raised in the trial court and upon an appeal considered by this
court.” Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009) (quoting
Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972)). The claim that the
circuit court abused its discretion by allowing the introduction of certain evidence
at trial is certainly an issue which could have been pursued on direct appeal, rather
than in a collateral attack. Accordingly, we affirm the finding of the circuit court
with respect to these issues.
C. Claims Regarding PFO I Charge
Miller raises several issues related to the PFO I charge that enhanced
his sentence. The Commonwealth argues that each of Miller’s allegations is
merely an attempt to reconstruct the arguments he made on direct appeal. The
circuit court addressed Miller’s arguments regarding his PFO I conviction with a
single sentence in its order denying relief under RCr 11.42: “The movant’s
arguments regarding his PFO I conviction were already addressed by the Court of
Appeals and this [c]ourt will not restate that Court’s opinion.”
This Court addressed Miller’s arguments on direct appeal as follows:
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Miller also argues that the conviction in Case No.
03-CR-00014 did not qualify as a predicate for the PFO I
charge because service of the sentence was not
completed within five years of the commission of the
offenses in the current case. During the trial, the
Commonwealth had Detective Gordon Turner testify
based on official court documents and documents from
the Department of Corrections on Miller’s prior criminal
history. The evidence indicated that Miller was
discharged from further service of his sentence in Case
No. 03-CR-00014 on December 23, 2009. Miller
contends that the date of discharge is not the operative
date for determining the date of completion of service for
purposes of KRS 532.080(3)(c)(1). He argues that the
Commonwealth must establish the date of completion of
a sentence under the statute beyond a reasonable doubt.
This would include the application of the various
provisions involving service credit available while
imprisoned, such as good time credit, that must be
applied to determine completion of service. However, he
has presented no other legal authority directly supporting
this interpretation of the statute.
Miller, 2017 WL 3129216, at *2 (footnotes omitted). On direct appeal, Miller
argued that certain prior convictions were improperly used as the predicate
offenses supporting the PFO I charge.
In the case sub judice, Miller alleges that his trial counsel was
ineffective by failing to put forth mitigating evidence at the penalty phase of the
proceedings to refute sentencing enhancement of the PFO I charge against him.
Specifically, he claims that his counsel should have called a witness from
Probation and Parole or the Department of Corrections to explain that a prior
conviction used for the PFO I charge could not qualify as a predicate offense.
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We agree with the circuit court that these arguments are mere
reiterations of those raised on direct appeal. Moreover, Miller’s trial counsel filed
a total of three motions to prohibit the use of Miller’s convictions in No. 03-CR-
00014, No. 03-CR-00204, and No. 03-CR-00379 for purposes of penalty
enhancement as a persistent felony offender. Accordingly, we hold that the circuit
court did not abuse its discretion when it denied Miller’s RCr 11.42 motion
without an evidentiary hearing.
Miller next argues that the prosecutor engaged in misconduct by
knowingly misstating the law regarding the PFO I charge and that his trial counsel
was ineffective by failing to object to such alleged prosecutorial misconduct.
Again, “[i]t is not the purpose of RCr 11.42 to permit a convicted defendant to
retry issues which could and should have been raised in the original proceeding,
nor those that were raised in the trial court and upon an appeal considered by this
[C]ourt.” Thacker, 476 S.W.2d at 839. Miller could have raised the issues relating
to prosecutorial misconduct on direct appeal. Thus, these issues are an
inappropriate subject of an RCr 11.42 motion and not properly before the Court.
See Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990); see also Bowling
v. Commonwealth, 80 S.W.3d 405, 416 (Ky. 2002).
Finally, Miller argues that he was denied his Fifth Amendment right
to testify, claiming that he would have testified to when he served out his
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convictions in No. 03-CR-00014 and No. 03-CR-00204. In denying relief based
on this allegation, the circuit court noted that Miller’s desired testimony regarding
his prior convictions was introduced through an avowal, which consisted of the
exact records to which Miller would have testified. Accordingly, the circuit court
did not err in denying relief without an evidentiary hearing on this issue because
there were no material issues of fact that could not be “conclusively proved or
disproved, by an examination of the record.” Fraser, 59 S.W.3d at 452.
D. Ineffective Assistance of Appellate Counsel
Miller now raises similar claims of ineffective assistance of counsel
with respect to his appellate counsel. Specifically, he appears to argue that his
counsel on direct appeal neglected to raise any issues regarding the testimony of
Whitney Taylor or Rena Martin, or the admissibility of the recorded telephone
conversation between Miller and Yarbrough. The circuit court addressed each of
Miller’s ineffective assistance of counsel arguments with respect to his trial
counsel in the order denying his motion for RCr 11.42 relief. However, the circuit
court’s order was silent as to any claims concerning appellate counsel.
The Commonwealth argues that Miller did not raise the issue of
ineffective assistance of appellate counsel (IAAC) in the trial court, and that it does
not construe his argument on appeal to encompass IAAC claims. This is an
important distinction. If the court did not rule on Miller’s IAAC claims, we may
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not review them. See Smith v. Commonwealth, 438 S.W.3d 392, 396 (Ky. App.
2014) (remanding a post-conviction matter because the trial court failed to rule on
the defendant’s ineffective assistance of appellate counsel claim, which was raised
in his RCr 11.42 motion). Thus, our review is limited to whether the issue was
actually raised in the trial court, not to determine whether the issue was properly
preserved, but more fundamentally to determine whether the trial court was
obligated to issue a ruling on that issue.
In Miller’s RCr 11.42 motion, there was only one discernable instance
in which Miller even arguably alleged ineffective assistance of appellate counsel:
Counsel was ineffective and movant was deprived of his
rights under the 6th and 14th Amendments of the U.S.
Constitution were [sic] counsel and appellant counsel
failed to object and preserve improper character evidence
and inadmissible hearsay statement by a witness.
The reference to “appellant” counsel could arguably be construed as misspelling of
“appellate” or as simply a reference to Miller as an appellant, although the brief in
question was filed in the trial court. To construe this as a reference to “appellate”
counsel, however, would require this Court to ignore considerable context. Miller
never again mentioned his direct appeal in his RCr 11.42 brief in the trial court.
His motion contains no reference to his appellant’s brief on direct appeal, and is
silent as to the arguments made and omitted. Even within the single sentence in
his trial court filing outlined above, Miller’s references to a failure to “object and
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preserve” improper evidence imply that he is referring only to trial counsel.
Finally, it would be logically inconsistent for Miller to refer to trial counsel’s
failure to preserve issues while also alleging his appellate counsel was ineffective
for failing to raise an admittedly unpreserved issue on direct appeal. We are
persuaded by the Commonwealth’s argument that Miller did not raise this issue in
the trial court. Therefore, the trial court was not required to address the issue in its
March 23, 2020 order. Likewise, we are not required to address the merits here.
“An appellate court is without authority to review issues not raised in or decided
by the trial court.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky.
2009) (internal quotation marks omitted). The trial court did not err by omitting
this issue from its March 23, 2020 order denying Miller’s RCr 11.42 motion.
For the foregoing reasons, the Warren Circuit Court order denying
Miller’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Frederick L. Miller, pro se Daniel Cameron
Central City, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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