431 S.W.3d 430
Ky. Ct. App.2013Background
- Robertson was charged in 1995 with six counts of sodomy and five counts of sexual assault for acts involving two young children he babysat; he was nearly 18 at charging and 16–17 during the acts, so the case originated in juvenile court and was transferred to circuit court after a transfer hearing in 1996.
- At trial, the Commonwealth presented multiple witnesses; Robertson did not testify and only his mother was called by defense; closing arguments framed the case as uniquely strong for the Commonwealth and implied lack of motive to lie by the victims.
- Trial counsel did not object to prosecutorial remarks suggesting the victims would not lie and that Robertson could not offer a reason for the alleged misconduct; the jury convicted on all counts after 14 minutes of deliberation.
- During sentencing, trial counsel presented no mitigating evidence; the prosecutor urged a 525-year sentence and framed the case as a “message” to the parole board; Robertson received a 100-year recommendation.
- Robertson pursued post-conviction relief under Kentucky Rule of Criminal Procedure (RCr) 11.42; the Nelson County court vacated the convictions due to trial counsel’s persistent failures, including failure to object to prosecutorial misconduct.
- The Commonwealth appeals the vacatur; Robertson cross-appeals seeking a new juvenile transfer hearing. The court held that Strickland prejudice was proven for trial, that Cronic applies to the transfer hearing, and that no remand to juvenile court is feasible given Robertson’s age.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel’s failure to object to prosecutorial misconduct prejudiced Robertson | Robertson | Commonwealth | Yes; prejudice established; convictions vacated |
| Whether Cronic applies to presumption of prejudice at the juvenile transfer hearing | Robertson | Commonwealth | Yes; presumption applies; deems transfer hearing presumptively unreliable |
| Remedy for age-improper transfer in light of current age; proper course if new transfer hearing not feasible | Robertson | Commonwealth | Remand for de novo review before a juvenile court; but in this case not feasible; affirm remand-denial and vacatur as final relief |
| Whether law-of-the-case precludes reconsideration of transfer issue on RCr 11.42 | Robertson | Commonwealth | No; Leonard v. Commonwealth allows collateral attack; issue proceedable |
| Whether the sentencing phase had error that requires relief apart from trial-stage issues | Robertson | Commonwealth | Moot after vacatur of convictions; no separate remedy needed |
Key Cases Cited
- Adams v. Commonwealth, 264 S.W.2d 283 (Ky. 1954) (prohibition on commenting on defendant's failure to testify)
- Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006) (indirect reference to failure to testify improper; cumulative prejudice)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance)
- Cronic v. United States, 466 U.S. 648 (1984) (presumption of prejudice in extreme counsel failures)
- Bell v. Cone, 535 U.S. 685 (2002) (complete failure to provide effective assistance beyond one phase of proceeding)
- White v. Sowders, 644 F.2d 1177 (6th Cir. 1980) (removal of juvenile transfer nuances; de novo review guidance)
- Kent v. United States, 383 U.S. 541 (1966) (principles for juvenile transfer and de novo review guidance)
- Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) (law-of-the-case does not bar collateral RCr 11.42 review)
- Buchanan v. Commonwealth, 652 S.W.2d 87 (Ky. 1983) (practical possibility of juvenile adjudication post-transfer)
- Schooley v. Commonwealth, 556 S.W.2d 912 (Ky. App. 1977) (limitations on jurisdiction following remand for transfer)