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RENDERED: APRIL 19, 2013; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-002159-MR AND NO. 2011-CA-002205-MR

COMMONWEALTH OF KENTUCKY

APPELLANT/CROSS-APPELLEE

v.

APPEAL AND CROSS-APPEAL FROM NELSON CIRCUIT COURT HONORABLE JOHN DAVID SEAY, JUDGE ACTION NO. 96-CR-00004

LOUIS LEE ROBERTSON, JR.

APPELLEE/CROSS-APPELLANT

OPINION AFFIRMING ** ** ** ** ** BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. MAZE, JUDGE: The Commonwealth appeals the opinion and order of the Nelson Circuit Court overturning the conviction of Appellee, Louis Robertson, Jr. (hereafter "Robertson") following his ineffective assistance of counsel claim under Kentucky Rules of Criminal Procedure ("RCr") 11.42. On cross-appeal, Robertson

appeals the trial court's denial of his motions for new juvenile transfer and sentencing hearings based on his trial counsel's ineffective assistance during both. After careful consideration of the facts in the record, we agree with the trial court that trial counsel's performance was so deficient during trial as to prejudice Robertson, requiring his conviction and sentence to be vacated. Further, while we disagree with the trial court's reasoning, we agree that Robertson cannot receive a rehearing on the issue of juvenile transfer. Hence, we affirm the trial court's order. Background In August 1995, the Commonwealth charged Robertson with six counts of sodomy and five counts of sexual assault following accusations by two young children he babysat. Robertson was six weeks shy of his eighteenth birthday when he was charged and was between the ages of sixteen and seventeen during the period of time in which his crimes allegedly took place. For this reason, the case against Robertson originated in Nelson County's juvenile court and a transfer hearing was held on January 5, 1996. Robertson received legal counsel from the Department of Public Advocacy. At the transfer hearing, Robertson's counsel called no witnesses and did not challenge the testimony of a witness called by the Commonwealth who testified incorrectly regarding programs which could assist with Robertson's rehabilitation as a juvenile. The law at the time of the hearing clearly refuted this testimony. Following the hearing, the juvenile court ordered that the case be transferred to circuit court, where Robertson was tried as an adult for his crimes. -2-

At trial, witnesses for the Commonwealth included the lead police investigator, both young victims and the victims' mother. Robertson's trial counsel called one witness, Robertson's mother. Robertson did not testify in his own defense. During closing arguments, the prosecutor stated to the jury that sex abuse cases generally come down to a child's word against an adult's, but that Robertson's case was "as good as it gets" because of the fact that there were two children and "this defendant cannot give you any reason why these children would make this up." A few moments later, the prosecutor stated that the children had "absolutely no motive" to lie about what had happened. Finally, after walking the jury through each jury instruction and matching them to the facts of the case as they had been testified to, the prosecutor stated that the testimony of the children was "un-refuted" by Robertson. Following fourteen minutes of deliberation, the jury convicted Robertson on all counts. During the sentencing phase, Robertson's trial counsel provided the jury with no mitigating evidence or information on Robertson's chance of reoffending or possible treatment options. Trial counsel instead called one witness, Robertson's mother, who testified to his conduct while he had been incarcerated awaiting trial. The prosecutor, during his closing arguments to the jury at sentencing, requested that the jury sentence Robertson to 525 years in prison, and asked the jury three times to "send a message" to the parole board. The prosecutor also referenced a prior misdemeanor assault charge against Robertson, stating that the underlying facts of the incident showed the jury what kind of a -3-

person Robertson was. Robertson's trial counsel did not object to the evidence or to this statement. After brief deliberations, the jury recommended a sentence of 100 years. On direct appeal to the Kentucky Supreme Court, Robertson's convictions and sentence were upheld in a 1999 opinion. After a lengthy RCr 11.42 process, which once again took Robertson to the Supreme Court in 2005, his motion was remanded to the Nelson Circuit Court which ultimately deemed it timely in 2009 and held an evidentiary hearing on January 20, 2011. At this hearing, Robertson's former trial counsel admitted to his lack of preparedness ahead of Robertson's juvenile transfer hearing, including his failure to interview the Commonwealth's witnesses, to research relevant law and lack of familiarity with relevant juvenile rehabilitation programs. He further admitted that he relied on the judge's experience to protect his client's interest. In addition to trial counsel, Robertson called a juvenile law expert, Tim Shull ("Shull"), who testified that certain misstatements of fact by Commonwealth witnesses, including that the state was supposedly unable to treat juvenile sex offenders, would have easily been proven wrong by competent trial counsel, as authority to the contrary came "straight from the statute." Shull also testified that it is typical for an expert witness to be called in such cases to testify to treatment options and how "much more amenable to treatment [juveniles are] than adults," while trial counsel neither called, nor consulted, any such witness at trial. Robertson called another expert, a former state Cabinet for Human Resources and Department of Juvenile Justice representative, who reiterated Shull's latter point. -4-

Finally, Robertson called Dr. Grey, who testified that it was common knowledge at the time of Robertson's trial that juvenile offenders could be, and commonly were, treated outside of residential treatment facilities and within the community. Dr. Grey also testified that, due to the impulsive manner in which juvenile sex crimes typically occur, recidivism rates among such offenders are much lower than those observed among adults. Robertson's trial counsel provided no such testimony at trial. On October 27, 2011, the trial court granted Robertson's motion to vacate his convictions; however, the court denied his motion for a new juvenile transfer hearing. Regarding the latter, the court reasoned that, despite trial counsel's "substantial errors," the juvenile court had appropriately considered the relevant legal factors, and that, given Robertson's current age, if he was granted a new transfer hearing, "it seems highly doubtful that [Robertson] would not be transferred immediately to circuit court." Further, the court concluded that trial counsel was prohibited, by court order, from mentioning Robertson's age at sentencing; therefore, that he did not present that fact as evidence tending to mitigate Robertson's sentence could not constitute ineffective assistance. Regarding the prosecutor's request that the jury "send a message to the parole board," the trial court deferred to the Supreme Court's finding on direct appeal that such statements were proper because the "message" was directed at the parole board and not the community.

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In vacating Robertson's convictions at trial, the court found that Robertson's trial counsel had "completely abdicated his responsibility to his client at a critical proceeding" and that his repeated failures to object to prejudicial evidence and repeated prosecutorial misconduct were harmful to his client and devoid of any strategy. Further, the court concluded that such failures "raise[d] substantial questions undermining confidence in the outcome of the case" and that "there is a reasonable probability that the result would have been different had counsel objected to the prosecutorial misconduct." The Commonwealth now appeals the trial court's decision to vacate Robertson's convictions, while Robertson appeals the denial of a new juvenile transfer hearing. Standard of Review and the Strickland Standard The circuit court's findings regarding claims of ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008)(citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). The reviewing court may set aside the trial court's fact determinations if they are clearly erroneous. Id. (citing Kentucky Rules of Civil Procedure [CR] 52.01). A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, the standard of review in RCr 11.42 proceedings, when the trial court conducts an evidentiary hearing, requires that the reviewing court must defer to the determinations of fact and witness credibility made by the trial -6-

judge. See McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986); Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. 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.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The standard for assessing counsel's performance is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Strickland, 466 U.S. at 688

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