Randall Price v. Commonwealth of Kentucky

RENDERED: MAY 14, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-0166-MR

RANDALL PRICE APPELLANT

APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 14-CR-00997

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

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BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

CALDWELL, JUDGE: Appellant Randall Price (“Price”) appeals from the

Kenton Circuit Court’s denial of his motion pursuant to RCr1 11.42 seeking a new

trial, alleging ineffective assistance of his counsel at trial. Finding no error in the

court’s order, we affirm.

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Kentucky Rules of Criminal Procedure.
 FACTS AND RELEVANT PROCEDURE

In 2016, the Kentucky Supreme Court issued an opinion in Price’s

direct appeal of his conviction, for which he was sentenced to a total term of

imprisonment of thirty (30) years. The Supreme Court summarized the evidence

presented at Price’s trial as follows:

Appellant entered a small bar in Latonia shortly before
closing time and sat next to Nick Robbins, although the
two were not acquainted. The bartender, Jennifer Carnes,
brought Robbins another drink and placed his change,
$7.00, on the bar beneath an ashtray. Appellant tried to
take the money, but Carnes caught him and gave the
money to Robbins. Appellant and Robbins were the last
patrons to leave the bar.

Joyce Smeal, who was waiting in the parking lot to give
Carnes a ride home, saw Appellant and Robbins leave the
bar and light cigarettes. As the two walked together in
her direction, Smeal saw Appellant suddenly, and
apparently without warning, throw Robbins violently
onto the ground and begin viciously punching and
kicking him. According to Smeal, Appellant kicked
Robbins with such force that it lifted him off the ground.
With Robbins immobilized, Appellant rifled through his
pockets and then fled the scene. Smeal testified that she
did not see the two men arguing before the attack, that
she did not see a gun in Robbins’ possession, and that she
did not see Robbins enter Appellant’s vehicle at any
time.

Erin Fleek witnessed the event from her kitchen window
in a nearby apartment building. She saw Appellant beat
Robbins and then reach into the victim’s pockets. Fleek
and some of her friends went outside to intervene. They
yelled for Appellant to stop the beating, and Fleek saw
Appellant deliver one last kick to Robbins’ head before

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leaving the scene. Fleek called 911 and provided a
description of Appellant and his car.

Meanwhile, after finishing her closing duties, Carnes left
the bar and saw Robbins lying motionless on the ground
so badly beaten and covered with blood she did not
recognize him. Sargent [sic] Patrick Reece saw
Appellant’s car leaving the scene. Reece activated his
emergency equipment signaling Appellant to stop.
Appellant drove on for a short distance before stopping,
during which time Reece saw Appellant throw something
out of the passenger side window. Further investigation
disclosed that the item thrown from the vehicle was
Robbins’ wallet.

After his arrest, Appellant made several statements to the
police. He told police that Robbins had asked him for a
ride from the bar to Cincinnati where he planned to get
crack cocaine and hire a prostitute. Appellant said he
declined Robbins’ request, and as they left the bar,
Robbins seemed agitated. Appellant said that he told
Robbins he would give him two Percocet pills which he
had in his car. Robbins got into Appellant’s car, and
instead of Percocet, Appellant gave Robbins two
ibuprofen tablets, which Robbins consumed. Appellant
said that Robbins then became angry and aggressive.
After Robbins took a swing at him, Appellant “busted his
ass.” During the police interview, Appellant never
claimed that Robbins had a gun, but he testified at trial
that Robbins drew a gun and threatened him. A BB gun
was found at the scene where Robbins was beaten,
although its source was never determined. Appellant
testified that he beat Robbins because Robbins threatened
him with a gun.

Robbins suffered devastating injuries to his face, eye, and
mouth as a result of the assault. One of the first
responders to the scene testified that the victim was
bleeding from his head, barely breathing, and not
moving. Robbins’ recovery from the assault was

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 exacerbated by alcohol withdrawal symptoms and the
preexisting conditions of Hepatitis C and cirrhosis of the
liver. A few months after the assault, and before the trial,
Robbins succumbed to his liver disease and died at the
age of fifty-nine.

At trial, Appellant asserted the defense of self-protection,
which he claimed was necessary because Robbins had
pulled a gun on him and was otherwise threatening him
by his actions. Appellant also asserted an extreme
emotional disturbance (EED) defense and an instruction
was given applicable to that theory. Appellant denied
taking Robbins’ wallet from his pocket. He claimed that
Robbins had inadvertently left his wallet in Appellant’s
vehicle. The jury rejected Appellant’s defenses and
convicted him of first degree assault based upon the
injuries inflicted upon Robbins and first degree robbery
based upon the theft of Robbins’ wallet. Judgment was
entered accordingly[.]

Price v. Commonwealth, No. 2015-SC-000469-MR, 2016 WL 7665874, at *1-4

(Ky. Dec. 15, 2016).

In his RCr 11.42 motion filed in the Kenton Circuit Court following

his unsuccessful direct appeal, Price, acting pro se, alleged he was entitled to a new

trial because his trial counsel was ineffective in the following ways: for

misleading him as to the admissibility at trial of the victim’s statements to the

police; for failing to impeach witnesses to the assault with what he characterizes as

prior inconsistent statements to police; for advising him to reject plea offers; for

failing to object to the testimony of the victim’s sister concerning the victim’s

allergy to ibuprofen; for failing to object to prosecution’s argument that he struck

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Robbins in the head with a BB gun during the assault; and for answering a jury

question during deliberations concerning whether his vehicle was searched by the

police at the time of his arrest.

The trial court denied relief on each of the grounds without a hearing,

except the court did order a hearing into the allegation that counsel misadvised

Price concerning the plea offers made by the Commonwealth. Following that

hearing, the trial court denied Price relief on that ground, as well, finding his

counsel’s testimony persuasive and Price’s testimony unpersuasive. We affirm the

trial court.

STANDARD OF REVIEW

This Court reviews a trial court’s denial of an RCr 11.42 motion for

an abuse of that court’s discretion. Bowling v. Commonwealth, 981 S.W.2d 545,

548 (Ky. 1998). Abuse of discretion has been defined as being arbitrary,

unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).

For that sole issue as to which the trial court ordered and conducted an

evidentiary hearing, i.e., whether counsel misadvised Price as to plea offers

extended by the Commonwealth, we review the findings of fact of the trial court

for clear error. CR2 52.01; Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky.

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Kentucky Rules of Civil Procedure.

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2012). Findings of fact are not clearly erroneous if they are supported by

substantial evidence. Eagle Cliff Resort, LLC v. KHBBJB, LLC, 295 S.W.3d 850,

853 (Ky. App. 2009).

A trial court reviews an allegation of ineffective assistance of trial

counsel pursuant to the standard set out in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under this highly deferential standard,

the court must apply a two-part analysis first identifying error and then any

resultant prejudice.

First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant 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.

Id. at 687, 104 S. Ct. at 2064.

The 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 the probability sufficient to
undermine confidence in the outcome.

Id. at 694, 104 S Ct. at 2068.

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 ANALYSIS

Price rather incoherently argues that he is appealing the trial court’s

failure to order an evidentiary hearing “on the issue of not admitting into evidence

the statement made by Mr. Robbins, it is from this order Mr. Price now appeals.”

However, the briefing also addresses the issue upon which the trial court did grant

an evidentiary hearing, i.e., whether counsel advised Price to reject certain plea

offers. We will review only these two issues and none of the other issues

originally raised in the RCr 11.42 motion but not briefed by Price. It is not

sufficient to refer summarily in the brief to issues raised in the motion filed in the

trial court and present no further argument and consider the matter properly

presented to this Court. “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).

The trial court determined that every allegation Price raised in his RCr

11.42 motion was refuted by the record, save one. The trial court ordered a

hearing concerning the allegation that trial counsel advised Price to reject favorable

guilty plea offers extended by the prosecution. After holding a hearing into the

allegation of ineffective assistance, the trial court found Price’s testimony

incredible, but found counsel’s testimony reliable and believable. Counsel testified

that his notes in the file indicate that he reviewed the offers made with his client

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and that his client was insistent that the charges should be dismissed due to the

victim’s passing. Counsel indicated that he would have explained to Price that the

Commonwealth could still proceed with the prosecution in light of the victim’s

passing by presenting the testimony of eyewitnesses and medical evidence.

Price testified at the hearing that his trial counsel advised him that if

the victim passed, the prosecution could not maintain the action and the charges

against him would be dismissed, and that was why he rejected the plea offers

extended. The trial court noted that at the hearing, Price changed his theory of

relief, now stating he would have accepted the plea if he had known the victim’s

interview with police would be inadmissible as hearsay, while in the motion he

alleged that counsel advised him to reject the plea offers because the prosecution

would not be able to proceed with the prosecution if the victim died and his death

appeared imminent. Such is, of course, ridiculous. If a victim’s death were the

death knell to prosecution no murder case could ever be maintained. The trial

court found Price’s testimony unbelievable and the testimony of his counsel more

compelling. We agree and find the trial court committed no error, much less clear

error.

The trial court was in the best position to discern the credibility of the

witnesses, and we will not second-guess the trial court’s determinations as to

credibility.

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 “‘[D]ue regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses’
because judging the credibility of witnesses and weighing
evidence are tasks within the exclusive province of the
trial court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003) (quoting CR 52.01 and citing Bowling v. Natural
Resources and Environmental Protection Cabinet, 891
S.W.2d 406 (Ky. App. 1994)). An appellate court defers
to factual findings of the trial court unless those findings
are clearly erroneous. CR 52.01.

Commonwealth v. Graham, 586 S.W.3d 754, 769 (Ky. App. 2019).

The trial court found, after the hearing, that the evidence did not

support Price’s allegation that his counsel had told him that he should reject all

plea offers from the Commonwealth because the prosecution would have to be

dismissed if the victim passed. Rather, the evidence supported the conclusion that

Price simply did not want to plead guilty and only decided the plea offers were

attractive after being found guilty and sentenced to a longer term of imprisonment

than offered in any plea offer. This finding was not an abuse of discretion.

Price also alleges that his counsel was ineffective for not introducing

the victim’s statement to police at the trial. Because Price wanted the statement

introduced to establish that he “acted in self-defense,” he would have employed the

unsworn statement to prove a fact in contest and thus the statement would have

been properly rendered inadmissible hearsay pursuant to KRE3 801(c). The

3
Kentucky Rules of Evidence.

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statement of the victim to police was unsworn, so it was clearly not admissible

under KRE 804(b)(1), despite Price’s arguments to the contrary. See Brown v.

Commonwealth, 313 S.W.3d 577, 608 (Ky. 2010) and St. Clair v. Commonwealth,

140 S.W.3d 510 (Ky. 2004). Because the statement clearly was not admissible, it

was likely counsel recognized such and that was the reason he did not attempt to

introduce it. The trial court did not abuse its discretion in so finding, and we agree

wholly with the trial court’s determination.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Kenton

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Randall Price, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky

James Havey
Assistant Attorney General
Frankfort, Kentucky

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