FROM JEFFERSON CIRCUIT COURT HONORABLE CHARLES L. CUNNINGHAM,
JR., JUDGE ACTION NO. 08-CR-001045-002
FOR APPELLANT: Andy Beshear Attorney General of Kentucky
Dorislee Gilbert Jeanne Anderson Special Assistant Attorneys
General Louisville, Kentucky.
FOR APPELLEE: David S. Mejia Louisville, Kentucky.
BEFORE: COMBS, JONES AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE.
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.
AND PROCEDURAL HISTORY
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.
everyone in the vehicle except Brown gave statements to the
police. Appellee, Brown, and another individual were arrested
and charged with complicity to commit murder,  complicity to
first-degree assault,  and complicity to first-degree wanton
endangerment. At trial, Appellee was represented by Mr.
McLeod and attorney Alex Fleming. Appellee was found guilty
of complicity to murder, second-degree assault,
second-degree wanton endangerment. Prior to sentencing, the
Commonwealth offered Appellee the minimum sentence, 20 years.
Appellee took the offer and he was sentenced accordingly.
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.
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.
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 ...