FROM HARDIN CIRCUIT COURT HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 10-CR-00443
FOR APPELLANT: Kit Prescott, pro se Louisville, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General Frankfort,
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
Prescott, pro se, appeals the Hardin Circuit
Court's order entered May 2, 2016, denying his motions to
recuse, to vacate his sentence pursuant to RCr 11.42, and to
hold an evidentiary hearing on the same. After careful review
of the record, briefs, and applicable law, we affirm.
AND PROCEDURAL BACKGROUND
November 17, 2011, Prescott was found guilty following a
six-day trial by jury of one count first-degree possession of
a controlled substance,  three counts first-degree trafficking
in a controlled substance,  and being a persistent felony
offender in the first degree ("PFO
I"). The jury recommended Prescott be sentenced
to three years' imprisonment for the possession charge
and ten years' imprisonment for each trafficking charge,
said sentences to run concurrently. Sentencing was deferred
until after a hearing on January 17, 2012. Subsequently, the
trial court imposed the jury's recommended sentence
against Prescott. On February 6, 2012, an amended order of
judgment and order imposing sentence was entered by the trial
court. Prescott appealed. On February 28, 2014, in an
unpublished opinion, another panel of our court affirmed the
trial court's order in part, vacating only the portion of
the order imposing court costs on Prescott without
ascertaining whether he is a poor person or his ability to
October 8, 2015, Prescott moved the court to recuse, to
vacate its order pursuant to RCr 11.42 based on collateral
claims of ineffective assistance of trial and appellate
counsel, and for an evidentiary hearing. On April 28, 2016,
the trial court entered its order denying these motions. This
appeal is, at least in part, an attempt to recycle arguments
that have previously failed. As such, we quote the basic
facts and summary of issues previously reviewed by the prior
panel of our court in Prescott v. Commonwealth, No.
2012-CA-000190-MR, 2014 WL 813109, at *1 (Ky. App. Feb. 28,
In 2010, Army investigators of the Civil Investigation
Command (CID) learned that Private Stephen Percival had been
purchasing cocaine and firearms in Radcliffe, Kentucky. They
contacted Detective Rex Allaman of the Hardin County
Sheriff's Department and began a coordinated
investigation. The two investigative units set up controlled
buys using Percival as a confidential informant. They
equipped Percival with an audio and video recording device.
On three occasions in 2010, he entered the apartment of a
drug dealer he knew as Six and purchased a quantity of powder
cocaine. During the last transaction, Percival and Six also
discussed the possibility that Six would sell firearms to
Percival or others, but the sale was never executed.
Six was later identified as the defendant, Kit Prescott.
Prescott denies that he is Six or that he is guilty of the
offenses for which he was convicted.
On the basis of the controlled buys, Detective Allaman sought
and was granted a no-knock warrant to search Six's
apartment. Detective Allaman's affidavit in support of
the warrant request was purportedly placed in the record, but
it is now missing.
The warrant was executed while the apartment was unoccupied.
Police uncovered significant quantities of drugs and evidence
of trafficking, in addition to two firearms.
Prescott was indicted on a number of offenses and appointed
representation by the Department of Public Advocacy (DPA). On
several occasions, he filed pretrial motions by which he
sought to represent himself, but on each occasion he decided
to maintain his appointed counsel after consulting the
Trial was conducted in November 2012. At the close of his
case, Prescott requested permission to make his own closing
statement to the jury. The circuit judge conducted a
Faretta hearing and granted his request. Faretta
v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975). The jury returned a verdict of guilty on the
following charges: first-degree possession of a controlled
substance; first-degree trafficking in a controlled
substance, first offense, less than four grams of cocaine;
two counts of first-degree trafficking in a controlled
substance, first offense, more than four grams of cocaine;
and first-degree PFO. Prescott was sentenced to a total of
ten years' imprisonment and ordered to pay $190 in court
costs and fees.
On appeal, Prescott asserts the judgment should be reversed
on four grounds. He first claims the warrant was invalid
because Detective Allaman's affidavit failed to establish
probable cause. On that basis, he believes the evidence
discovered in the search of the apartment should have been
suppressed. Prescott also protests that the circuit court
permitted the jury to hear evidence concerning the
prospective sale of firearms. He next claims he should not
have been permitted to make his own closing statement.
Finally, Prescott argues that he should not have been ordered
to pay court costs because he is a poor person.
TO RULES OF APPELLATE PROCEDURE
initial matter, in contravention of CR 76.12(4)(c)(v),
Prescott does not state how he preserved any of his arguments
in the trial court.
CR 76.12(4)(c)[(v)] in providing that an appellate
brief's contents must contain at the beginning of each
argument a reference to the record showing whether the issue
was preserved for review and in what manner emphasizes the
importance of the firmly established rule that the trial
court should first be given the opportunity to rule on
questions before they are available for appellate review. It
is only to avert a manifest injustice that this court will
entertain an argument not presented to the trial court.
Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990)
(quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky.
App. 1987)). We require a statement of preservation
so that we, the reviewing Court, can be confident the issue
was properly presented to the trial court and therefore, is
appropriate for our consideration. It also has a bearing on
whether we employ the recognized standard of review, or in
the case of an unpreserved error, whether palpable error
review is being requested and may be granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App.
2012). The instant appeal is taken from the trial court's
order denying RCr 11.42 relief on Prescott's motion
alleging ineffective assistance of trial and appellate
counsel. Review of Prescott's motion and the trial
court's order reveals that such issues were presented to
the trial court for consideration. Because these issues were
so presented, and denied, they are appropriate for appellate
CR 76.12(4)(c)(iv), relating to the requirement of a concise
statement of the facts and procedural history of an appeal,
requires "ample references to the specific pages of the
record, or tape and digital counter number in the case of
untranscribed videotape or audiotape recordings . . .
supporting each of the statements narrated in the
summary." Similarly, CR 76.12(4)(c)(v), relating to
arguments raised on appeal, requires "ample supportive
references to the record and citations of authority pertinent
to each issue of law[.]" It is not the job of this or
any appellate court to scour a record to determine whether
these citations support a party's assertions. Walker
v. Commonwealth, 503 S.W.3d 165, 171 (Ky. App. 2016).
Appellants must exercise care, diligence, and trustworthiness
to ensure the accuracy of pinpoint citations provided to the
appellate court in support of any arguments pursuant to CR
76.12, pertaining to both location and substance.
pro se brief contains numerous pinpoint citations to
the record allegedly supporting arguments advanced before
this Court. Review of the cited portions, however, suggests
Prescott misapprehends or mischaracterizes substantial
portions of the record. As one example, Prescott states the
"Judge even suggested the Attorney's [sic]
investigate the witness," citing to a portion of the
video transcript of his pretrial proceedings. Our review of
this, and all other cited portions, reveals that many do not
depict the purported subject matter, others are taken out of
context and do not support Prescott's argument, and
others do not exist (e.g. citation to V.R., 1/16/11
at 2:37:06pm (supposedly regarding suppression)).
Prescott's repeated inattentive and inaccurate citation
to portions of the record in support of his arguments is
further note that Prescott's pro se brief does
not comply with CR 76.12(4)(c)(vii) which requires the
appellant to "place the judgment, opinion, or order
under review immediately after the appendix list so that it
is most readily available to the court." Although the
order being appealed was included with the plethora of other
attachments, it did not appear until approximately page 178
of 215. This rule also provides that the index "shall
set forth where the documents may be found in the
record." The purpose of this rule is to ensure that only
items in the record are appended to the brief and considered
by our court during review. Prescott failed to do this. This
rule further requires the appendix contain extruding tabs to
indicate to the court the beginning of each attachment.
Prescott failed to do this as well.
additional note, we find it appropriate to
mention-considering Prescott's lengthy pro se
and in forma pauperis filings before the trial court
and now on collateral appeal in our court-that quantity is a
poor proxy for quality in court pleadings. It is not well
taken that Prescott's numerous and unwieldy arguments
have consumed considerable judicial resources to resolve. The
Supreme Court of the United States has observed:
paupers filing pro se petitions are not subject to
the financial considerations-filing fees and attorney's
fees-that deter other litigants from filing frivolous
petitions. Every paper filed with the Clerk of this Court, no
matter how repetitious or frivolous, requires some portion of
the institution's limited resources. A part of the
Court's responsibility is to see that these resources are
allocated in a way that promotes the interests of justice.
The continual processing of petitioner's frivolous
requests for extraordinary writs does not promote that end.
In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993,
996, 103 L.Ed.2d 158 (1989).
pro se litigants are sometimes held to less
stringent standards than lawyers in drafting formal
pleadings, see Haines v. Kerner, 404 U.S. 519, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972), Kentucky courts still
require pro se litigants to follow the Kentucky
Rules of Civil Procedure." Watkins v. Fannin,
278 S.W.3d 637, 643 (Ky. App. 2009). Due to our resolution of
this action, we have chosen not to penalize the appellant by
ordering his brief stricken or dismissing his appeal.
Instead, we have elected to simply include either no analysis
or a truncated one of unsupported matters asserted in the
offending portions of Prescott's arguments. Our review is
limited to those portions of Prescott's arguments
supported by careful and correct citation to the record.
of RCr 11.42 relief is reviewed for abuse of discretion.
Phon v. Commonwealth, 545 S.W.3d 284, 290 (Ky. 2018)
(citing Teague v. Commonwealth, 428 S.W.3d 630, 633
(Ky. App. 2014)). The test is "whether the trial
judge's decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles." Commonwealth
v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations
omitted). Legal issues are reviewed de novo. Phon,
545 S.W.3d at 290.
establish ineffective assistance of counsel, a movant must
satisfy a two-prong test showing counsel's performance
was deficient and that said deficiency caused actual
prejudice resulting in a fundamentally unfair proceeding with
an unreliable result. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord
Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). 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
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
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.
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. In the instant case, we need not determine
whether Prescott's trial counsel's performance was
adequate because ...