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Crabtree v. Commonwealth

Court of Appeals of Kentucky

August 23, 2019

RICHARD L. CRABTREE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM CARTER CIRCUIT COURT HONORABLE REBECCA K. PHILLIPS, JUDGE ACTION NO. 11-CR-00121-001

          BRIEF FOR APPELLANT: Euva D. Blandford Assistant Public Advocate LaGrange, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

          BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

          OPINION

          LAMBERT, JUDGE:

         Richard L. Crabtree appeals from an order of the Carter Circuit Court denying his request for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.

         Following a jury trial held in January 2012, Crabtree was convicted of burglary in the first degree, in violation of Kentucky Revised Statute (KRS) 511.020, and sentenced to twenty years' imprisonment. His conviction was affirmed on direct appeal to the Kentucky Supreme Court. Crabtree v. Commonwealth, 2012-SC-000330-MR, 2014 WL 5410221 (Ky. Oct. 23, 2014).

         Crabtree filed a pro se motion for RCr 11.42 relief on April 27, 2015. Counsel was appointed to represent him, and a supplemental motion was filed on Crabtree's behalf. The Carter Circuit Court held a hearing on the motion and entered its order denying Crabtree's motion on November 16, 2016. This appeal followed.

         Crabtree raises two allegations of ineffective assistance of counsel, first by trial counsel and later by appellate counsel, for failing to object to or raise as an issue, respectively, certain representations made by counsel for the Commonwealth during the penalty phase of the trial. When making his closing argument, counsel for the Commonwealth first advised the jury (correctly) that Crabtree, if convicted, would be eligible for parole after serving twenty percent (20%) of his sentence. The prosecutor then made inaccurate statements to the jury regarding good time credits. Specifically, he stated that good time credit earned was applied prior to parole eligibility and then advised the jury that a two-year sentence "isn't exactly what we consider two years."

         Crabtree's trial counsel appeared as a witness for the RCr 11.42 hearing. When asked why she didn't object to the prosecutor's statements during closing argument of the penalty phase, trial counsel stated she had no direct memory but speculated that she may have been distracted by Crabtree because of his "propensity to talk during the proceedings."

         We begin by reciting the relevant standards of review, namely:

The applicable standard of review in RCr 11.42 post-conviction actions is well-settled in the Commonwealth. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. 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), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). In Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citations omitted), the Supreme Court stated, "[a]fter the answer is filed, the trial judge shall determine whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required. A hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record."

Clark v. Commonwealth, 476 S.W.3d 895, 897-98 (Ky. App. 2015).

         On appeal, our standard of review is enunciated in Commonwealth v.McGorman, 489 ...


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