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Prescott v. Commonwealth

Court of Appeals of Kentucky

April 5, 2019



          BRIEFS FOR APPELLANT: Kit Prescott, pro se Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky



          DIXON, JUDGE

         Kit 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[1] 11.42, and to hold an evidentiary hearing on the same. After careful review of the record, briefs, and applicable law, we affirm.


         On November 17, 2011, Prescott was found guilty following a six-day trial by jury of one count first-degree possession of a controlled substance, [2] three counts first-degree trafficking in a controlled substance, [3] and being a persistent felony offender in the first degree ("PFO I").[4] 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 On February 28, 2014, in an unpublished opinion, another panel of our court affirmed the trial court's order in part, vacating only the portion of the order imposing court costs on Prescott without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 pay.

         On 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 followed.

         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, 2014).

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 circuit judge.
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.

(Footnotes omitted.)


         As an initial matter, in contravention of CR[5] 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 review.

         Additionally, 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.

         Prescott's 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 troubling.

         We 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.

         As an 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).

         "While 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.


         Denial 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.

         To 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 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. In the instant case, we need not determine whether Prescott's trial counsel's performance was adequate because ...

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