MAZE, JUDGE.
Appellant, Kenneth Campbell (hereafter "Campbell"), appeals the Breckinridge Circuit Court's denial of his motion to vacate his conviction under Rule of Criminal Procedure ("RCr") 11.42. After reviewing the record in this case, we find that the trial court correctly denied Campbell RCr 11.42 relief. Hence, we affirm.
In investigating several suspicious purchases of pseudoephedrine, a common ingredient in the manufacture of methamphetamine, local authorities identified the names of Joseph Metten (hereafter "Metten") and Campbell (Metten's mother's boyfriend) on a list of such purchases. After learning that Metten had an active warrant for his arrest, officers proceeded to Metten's address, where Campbell was also known to live. When they arrived, the officers were met at the door by a person they would later learn was Metten; however, the man denied being Joseph Metten when asked, and stated that Joseph Metten was not present in the home. The officers also asked if Campbell was present, to which the man responded that he didn't know. A child of approximately nine years-old then appeared at the door and informed officers that Campbell was in the home. The child opened the door to the officers, letting them in the home. Once inside, the officers observed a strong smell of ether, another ingredient in the manufacture of methamphetamine. Officers also observed Campbell, two others adults and several children in the home. Campbell identified himself and stated that he didn't know if Metten was present. The officer who initiated the contact with Metten, when later asked at a suppression hearing whether he thought at the time of the interaction that the person at the door was Metten, stated, "I felt like it was him . . . but I didn't know for sure."
Shortly following their entry of the home, the officers were alerted to Metten fleeing out the back door. Three officers pursued Metten; two running around the outside of the house and one running through the house but being turned away by a pit bull which was chained near the back door. On his way back through the house, the third officer observed a blender with white powder in it, an ether can and a pill soak in the kitchen. The officer alerted the others to the ongoing production of methamphetamine. Campbell and the others were handcuffed and officers sought consent to search the home. Upon receiving the written consent to search the home from both Campbell and his girlfriend, officers observed marijuana, various items used in the making of methamphetamine and a 12-gauge shotgun located in a room near where the methamphetamine was being produced.
Along with three co-defendants, Campbell was indicted for manufacturing and trafficking in methamphetamine, possession of marijuana, and possession of drug paraphernalia, all of which were enhanced by the presence of a firearm. The indictment also charged Campbell with wanton endangerment and tampering with physical evidence. Campbell retained Shelly Alvey (hereafter "Alvey") as his defense counsel.
Prior to trial, Alvey filed a motion to suppress the results of the officers' search, arguing that officers had neither a search warrant, nor consent to search, as Campbell's consent was acquired by coercion.
Following this ruling and prior to trial, Campbell pled guilty to manufacturing methamphetamine; however, the remaining charges and the firearm enhancement proceeded to trial. Following the guilt stage of the trial, a jury convicted Campbell on all counts. At sentencing, Alvey presented no witnesses or evidence on behalf of Campbell. She presented argument to the jury which emphasized Campbell's willingness to take responsibility for his role in the methamphetamine production and implored the jury to give Campbell the minimum sentence allowable under the charges. The jury subsequently sentenced Campbell to fifty years' imprisonment.
After the Supreme Court upheld his convictions on an appeal which did not raise the issue of suppression, Campbell filed a pro se RCr 11.42 motion with the trial court. The trial court from which this appeal originated appointed Campbell counsel, who filed several pleadings supplementing the pro se motion and the court set the case for an evidentiary hearing. At the hearing, Alvey testified that her strategy throughout the proof stage of the trial was to focus on "damage control," meaning she primarily focused on preventing the Commonwealth from proving Campbell's eligibility for the firearm enhancement. She testified that her goal at sentencing was to mitigate Campbell's punishment by trying to demonstrate Campbell's lack of a criminal background, as well as his so-called "guilt by association" with the other co-defendants. Alvey stated that she urged Campbell to provide her with witnesses she could call for this purpose, but that he refused to do so. Alvey added that the two-pronged theory presented in her motion to suppress fully encapsulated her strategy for suppression of the evidence recovered from the home.
Campbell testified at the hearing that he understood Alvey's trial strategy to be that, in exchange for a plea of guilty to the methamphetamine charge, Alvey would actively pursue a reduction in the firearm enhancement. Campbell testified that Alvey did not discuss mitigating evidence with him at any time. He did speak with Alvey during the penalty phase about getting the firearm enhancement reduced but could not remember if he spoke to family members about testifying on his behalf. The remaining witnesses at the RCr 11.42 hearing were family of Campbell's and testified to his character and difficult childhood.
Following the hearing, the trial court found that Campbell's claims of insufficient assistance of counsel did not meet the legal standard for such a finding. Specifically, the court found that there was "simply no evidence to support [the] claim" that Alvey failed to investigate and present mitigating evidence at trial. Further, it was the trial court's opinion that the Fourth Amendment claims could not form the basis of RCr 11.42 relief, and even if they could, Alvey had sufficiently argued the issue of suppression at trial. Accordingly, the trial court denied Campbell's motion, and this appeal follows.
On appeal, Campbell specifically contends that Alvey's failure to specifically raise the issue of the child's invalid consent to the search in her motion to suppress was deficient and prejudiced his defense. He further contends that Alvey's failure to present mitigating evidence at sentencing also rendered her assistance ineffective.
"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 v. Washingon, 466 U.S. 668, 686 (1984).
Id. at 687. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Id. at 690. To prove prejudice, "[t]he 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.
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 (6
As a preliminary matter, the issue of Alvey's alleged failure to raise mitigating evidence at the penalty phase of Campbell's trial is now moot. On January 11, 2013, Campbell's appellate counsel made this Court aware of an agreement amending Campbell's sentence. Hence, the issue is moot and we will not address it presently. However, the effectiveness of Alvey's assistance on the matter of suppression remains at issue.
Again, Campbell argues that Alvey's failure to assert the specific issue of the insufficient consent of a minor to a search of the home constituted insufficient assistance of counsel. He contends that, though Alvey filed a motion to suppress based on two other theories, her failure to proceed under this particular theory prejudiced his defense and met the standard of ineffectiveness under Strickland. According to Campbell, all exigent circumstances for the search arose after the minor gave insufficient consent, and therefore, this issue should have been taken up by Alvey.
We begin by making an important distinction that the trial court failed to make in its opinion. The trial court held, "[i]llegal search and seizure does not provide a basis for an RCr 11.42 motion . . . Challenge must be pursued at trial and on direct appeal." This is correct. See Brown v. Wingo, 396 S.W.2d 785 (Ky. 1965); Collier v. Commonwealth, 387 S.W.2d 858 (Ky. 1965). However, the court failed to distinguish between a claim of error by trial counsel in failing to bring an appropriate motion to exclude certain evidence and a claim of error by the trial court for failing to exclude that evidence. The two are not the same. The former is properly brought under an RCr 11.42 motion because issues of ineffective assistance of counsel are "almost always" not raised on direct appeal. See Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009); Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006). The latter is impermissible, as it is a claim which, in this case, "[was] not . . . raised on direct appeal." Sanborn, supra. Campbell's claim is akin to the former and is properly brought under RCr 11.42.
It is therefore necessary to evaluate this case under the lens of the above Fourth Amendment law. Doing so permits us to further determine whether Alvey's failure to raise the issue in question meets the Strickland standard of ineffectiveness. The trial court went on to briefly address this question in its opinion, and concluded that Campbell's claim, even if properly brought under RCr 11.42, did not meet this standard. The trial court was correct.
A warrantless search, unless it meets certain exceptions, is a violation of the Fourth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kentucky Constitution. One exception to this general rule is if exigent circumstances exist (i.e., destruction of evidence, effecting an arrest pursuant to a warrant) for the police to enter immediately. Another such exception is consent to search. Colbert v. Commonwealth, 43 S.W.3d 777 (Ky. 2001). However, a person with actual or apparent authority over the premises must grant the consent. Commonwealth v. Nourse, 177 S.W.3d 691 (Ky. 2005); Illinois v. Rodriguez, 497 U.S. 177 (1990). Apparent authority is found where a "reasonable police officer faced with the prevailing facts reasonably believed that the consenting party had common authority over the premises to be searched. Nourse at 696.
The youngest age at which courts in Kentucky have recognized the validity of a person's consent is "high-school aged." See Perkins v. Commonwealth, 237 S.W.3d 215 (Ky. App. 2007). However, the child's age in this case, while relevant, cannot be the dispositive factor. Rather, the objective standard in Nourse, cited supra, must control. Viewing the facts as a reasonable officer would have viewed them at the time, we hold that it was unreasonable to believe the child in this case possessed even apparent authority over the premises. Based on the obvious youth of the child before them, it was unreasonable to believe that a child of such an age possessed the requisite authority to grant consent. Nevertheless, there is at least one factor regarding suppression which supersedes the issue of consent, which the trial court found important and upon which the officers reasonably relied.
As Campbell points out, Payton v. New York, 445 U.S. 573 (1980), provides a limited exception to the search warrant requirements. See also Pate v. Commonwealth, 243 S.W.3d 327 (Ky. 2007)(Cunningham, J., concurring); McDonald v. Commonwealth, 2006-CA-000661-MR, 2007 WL 4277856. Under Payton, officers may enter a home when they have a warrant for arrest "when there is reason to believe the suspect is within." 445 U.S. 573 at 603.
The officers in this case were at Joseph Metten's house for the stated purpose of a "knock and talk." They also possessed a warrant for Metten's arrest. When Metten answered the door, he was evasive in both his verbal responses and his body language, first denying he was Joseph Metten, then stating Metten was not home and didn't know when he would be back, then saying he was not sure if Campbell was in the home, and finally backing away from the door and fleeing. At the suppression hearing, the officer who initiated the "knock and talk" stated that he initially believed the person at the door was Metten. Given Metten's behavior, as well as the officer's knowledge that Metten owned the home, it was reasonable for the officer to believe either that the individual at the door was Metten or that Metten was in the home. This reasonable belief gives rise, under Payton, to the officer's right to enter the home to effect Metten's arrest, which they did only after this belief arose. Accordingly, officers did not require consent to enter the home, as their initial entry of the home was permitted. Therefore, their subsequent searches of the home were also reasonable and not tainted by any illegal basis for entering the home, as Campbell alleges.
Our above examination of prevailing Fourth Amendment law leads us to conclude that, given the resulting limited likelihood of success of additional efforts on the issue of consent, Alvey's performance was not deficient and did not deprive Campbell of his right to counsel. Alvey sought suppression of the evidence seized from the home on the basis that neither a valid warrant, nor Campbell's consent were legally or adequately obtained. She briefed the issues and thoroughly argued them before the trial court at the suppression hearing.
In short, Alvey put forth two theories of suppression. Whether she decided not to raise a third or whether she believed it was already sufficiently addressed in her motion is of no consequence. She was entitled to make such a calculation or form such an opinion. Ultimately, Alvey's performance was not deficient; in fact, it was reasonable and objectively within "the wide range of prevailing professional norms." Strickland at 688-89.
Campbell also fails to establish that any deficiency on Alvey's part prejudiced his defense. The trial court's original decision to deny the motion to suppress was based on at least a half-dozen grounds, none of which concerned the age of the child or the legal sufficiency of the child's consent to search. Furthermore, because Campbell did not testify at the suppression hearing, the trial court reasonably accepted the officer's testimony that consent was not obtained under coercion. As the bases for its stated decision following the suppression hearing, the trial court cited not the child's consent; rather, the court cited the existence of exigent circumstances, including the presence of children in a dangerous environment, the reasonable need to pursue a fleeing Metten and the right to effect Metten's arrest pursuant to a valid arrest warrant. Therefore, the trial court, with the myriad of reasons for denying Campbell's motion, was convinced that officers had a legal basis to enter and search the home, and a specific challenge to the invalid consent of the child would very likely have had no bearing on the ultimate outcome.
For these reasons, we hold that Campbell fails to satisfy both elements required in Strickland. Nothing in the evidence or in the law demonstrates that a failure to expressly address the child's insufficient consent to be unreasonable or anything other than strategy or legal calculation. Therefore, Alvey's performance was not deficient. Furthermore, Campbell fails to establish that, had Alvey's performance been deficient, the result of his trial would have been different. Thus, Campbell also fails to show prejudice to his defense, and therefore, his claim for RCr 11.42 relief must fail as well.
We find that the trial court properly denied Campbell the extraordinary relief he seeks under RCr 11.42. Accordingly, the opinion and order of the Breckinridge Circuit Court is affirmed.
ALL CONCUR.
