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Commonwealth v. Harbin

Court of Appeals of Kentucky

November 1, 2019



          BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Dorislee Gilbert Jeanne Anderson Special Assistant Attorneys General Louisville, Kentucky.

          BRIEF FOR APPELLEE: David S. Mejia Louisville, Kentucky.



          THOMPSON, L., JUDGE.

         The Commonwealth of Kentucky appeals from an order of the Jefferson Circuit Court which found that Leslye Harbin's trial counsel was ineffective, and that Harbin was entitled to a new trial. The Commonwealth argues that counsel was not ineffective. We agree and reverse and remand.


         On February 8, 2008, Appellee, then a juvenile, and three other individuals were riding in the same vehicle. Witnesses observed that at some point, gunfire erupted from the vehicle which led to the death of Brandon Trumbo. A few days later, Appellee and his mother contacted attorney Brandon McLeod. Word was circulating in the neighborhood that Appellee was involved in the shooting and they wanted advice as to what to do. Appellee indicated that he was in the car when the shooting took place, but that he was not the shooter. He claimed Todd Brown, another passenger in the car, shot Trumbo. After speaking with Appellee and his mother, Mr. McLeod believed Appellee should speak with the police and inform them about Brown. Appellee and Mr. McLeod went to the police and Appellee gave a statement. In his statement to detectives, Appellee admitted to being in the vehicle but denied being the person who pulled the trigger. Appellee stated that Brown shot Trumbo.

         Eventually, everyone in the vehicle except Brown gave statements to the police. Appellee, Brown, and another individual were arrested and charged with complicity[1] to commit murder, [2] complicity to first-degree assault, [3] and complicity to first-degree wanton endangerment.[4] At trial, Appellee was represented by Mr. McLeod and attorney Alex Fleming. Appellee was found guilty of complicity to murder, second-degree assault, [5] and second-degree wanton endangerment.[6] Prior to sentencing, the Commonwealth offered Appellee the minimum sentence, 20 years. Appellee took the offer and he was sentenced accordingly.

         On March 27, 2014, Appellee filed the underlying Kentucky Rules of Criminal Procedure (RCr) 11.42 motion in which he claimed ineffective assistance of counsel. Appellee argued that his counsel was ineffective for allowing him to make a statement to the police. He also claimed that counsel was ineffective for stating during opening argument that Appellee would testify, but then not having Appellee testify. Finally, he argued that counsel was ineffective for advising him to take the 20-year plea offer.

         The trial court held a hearing on the motion over several days. Appellee, his mother, Mr. McLeod, Mr. Fleming, attorney Scott Drabenstadt, and attorney Vince Aprile testified. Briefs were then filed at the conclusion of the hearing. On February 11, 2019, the trial court entered an order granting Appellee's RCr 11.42 motion. The court found that trial counsel should not have allowed his client to speak with the police, erroneously stated that Appellee would testify during the opening argument, and should not have advised Appellee to take the plea deal. The court went on to say that while each of these issues, individually, did not amount to ineffective assistance of counsel, they cumulatively rise to that level. This appeal followed.


         To prevail on a claim of ineffective assistance of counsel, Appellee must show two things:

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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Id. at 691-92, 104 S.Ct. at 2066-67 (citations omitted). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. at 2067. "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 a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged ...

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