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# Commonwealth o f Kentucky Court of Appeals

NO. 20 2 2

- CA

- 1309

- M R

JEVONTAYE TAYLOR APPELLANT

APPEAL F ROM FAYETTE CIRCUIT COURT v. HONORABLE JULIE MUTH GOODMAN , JUDGE ACTION NO

. 1 7

- CR

- 0 0 32 8

- 001

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: EASTON, KAREM , AND TAYLOR, JUDGES

. KAREM , JUDGE : Jevontay e Taylor , pro se , appeals from the Fayette Circuit
Court ’ s order denying his motion t o vacate sentence under Kentucky Rules of
Criminal Pro ce dure (RCr) 11.42. Upon careful review, we affirm.

The underlying fa cts of the case were set forth by the Kentucky Supreme Court on dire ct appeal :- 2

- The Commonwealth ’ s primary witness in this case, Cha ka Hausley, is Taylor a nd his co

- defendant Quandarious ’ aunt. On the night of the robbery Chaka and the victim, Myrna Curtis, got into an argument at Myrna ’ s apar tment. After the argument, Myrna gave Chaka a ride home. Ten to fifteen minut es after she r eturned to her apartment, Myrna heard a knock on her f ro nt door. Myrna opened the door and saw Chaka who said she left her headphones in the apartment. Myrna left the screen door locked and went to retrieve the headphones from her bedroom.
W hen Myrna ope n ed the screen door to give the headphones to Chaka, tw o men rushed the door, and one put a gun to Myrna ’ s forehead. The gunman told Myrna to shut up and backed he r up against a wall. While Myrna was being held at gunpoint, the second man be gan s tealing M yrna ’ s wallet with about $60 dollars in it, her cell p ho ne, and a small Bluetooth speaker. The robbers then ran out of the apartment and left the scene. Chaka sta rted to leave too, but Myrna followed her and asked why Chaka had [let] someone rob h er. C h a ka replied, “what was I supposed to d o, protect you ov er somebody with a gun?” At that point Myrna went to a nearby friend ’ s house and called the police. Chaka l eft the scene before the police arrived. The lead detective in this case, Detective Merker , le arned from the responding officer ’ s re port that Chak a was present at the time of the robbery and facilitated getting Myrna to open the door. Because of this, Det

. Merker met with Chaka at her workplace about two weeks after the robbery. Chaka to ld De t. Mer ker that her nephews, Taylor and Quand arious, were th e ones who robbed Myrna, but she did not know they planned to do so. She also told him they threatened to kill her if she went to the police. Based on this information Det. Merker obtained a rrest wa rrant s for the brothers. They were arrested about a w ee k later at their home.- 3

- The day after they were arrested, Det. Merker went to the detention center to get a statement from them. Quandarious told Det. Merker he drove Chaka to Myrna ’ s apartmen t, bu t h e denie d any involvement in the robbery. Tayl or declin ed to speak with Det. Merker. Taylor v. Commonwealth , No. 2018

- SC

- 000178

- MR, 2019 WL 2462780, at *1 (Ky. Jun

. 13 , 2019)

.

Taylor was thereafter convicted by a jury of first

- degree robbery , principa l , or c omplicitor, and being a s econd

- degree persistent felony offender . He
received a total sentence of twenty years and was ordered to pay $300 in rest i tution

to Myrna j ointly and several l y with Qu andar io us. On dire ct appeal, the Supreme
Court affirmed his co nviction but reversed the order of restitution because t he trial
court failed to hold a n adve rsarial hearing as required by constitutional due
process. Id . at *4. The case was remanded for further p roceedings on that issue
alone

. On J une 11, 2020 , Taylo r filed a motion pro se to vacate his
conviction pursua n t to RCr 1 1. 42 , and a motion for an evidentiary hearing . He

c laimed that his trial counsel was ineffe ctive for fail ing to request a le ss er
- included
instruction to the first

- degree robbery char ge and for failing to argue that the jury
instructions denied T aylor a unanimous verdict

. Taylor was appointed counsel
who filed a notice of submission on th e pleadings w hich stated that Tay lo r ’ s pro se motion adequately alleged the fa cts underlying his c laims a nd renewed the request- 4

-

for an evidentiary h earing . The Commonwealth filed a response ; Taylor ’ s counsel filed a reply ; and the Commonwealth filed a sur

- reply

. T he t rial court entered an order denying Taylor ’ s motion without a hearing. This appeal by Tay lor f ollowed

. STANDARD OF REVIEW
In a motion brought un der RCr 11

. 42 , “[ t]he movant has the burden of establishing convincingly that he or she was depr i ved of some substantial right
whi ch would justify the ex traordinary relief provided by [a] post

- convict ion proceedi n g.” Simmons v. Commonwealth , 191 S .W.3d 55 7, 561 (Ky. 2006), overruled on other grounds by Le onard v. Commonwealth , 279 S.W.3d 151, 159 (K y. 2009) (cit ati on omitted). An RCr 11

. 42 motion “is limited to issues that were
not and could n ot b e r aised o n direct app eal.” I d. A successful petitio n for relief under RCr 11

. 42 for ineffective
assistance of counsel must meet the t win prongs of “perf ormance” and “pr ejudice” provided in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 20 52 , 2 064,
80 L. Ed. 2d 674 (1984) ; accord Gall v. Commonw ealth , 7 02 S.W.2d 37, 39

- 40 (Ky. 1985). “First, the defendant must sh ow that counsel ’ s performance was
deficient. T his requires showing that counsel made errors so serious that counsel

was not func ti oning a s the ‘counsel’ guarante ed the defendant by the Sixth
Am endment.” S trickland , 466 U. S. at 687, 104 S. Ct. at 2064

. “Second, the
defend ant must show that the def icient performance prejudice d the d efense. This- 5

-

requires showing that counse l ’ s errors were so serious as to deprive th e defendant of a fair trial, a tri al whose result is reliable.” Id.

An evidentiary hearing on the motion is req uired only “if there is a
material issue of fact tha t cannot be conc lusively resolved, i.e. , conclusi vely
prov ed or disproved, by an examina tion of the record.” Fraser v. Commonwe alth , 59 S.W.3d 44 8, 452 (Ky. 2001) (citations o mitted); RCr 11

. 42 (5). On app eal, “[o]ur review is conf

ined to whether the moti on on its f ace sta tes grounds that are
not conclusi vely re futed by the record and which, if tru e, would invalidate the
conviction .” Lewis v. Co mmon wealth , 411 S.W.2d 321, 322 (Ky. 1967).
ANALYSIS Taylor raises the following arguments on appeal: (1) gene ral allegations of ineffective assistan ce of trial c ounsel as well as a specific allegat ion
that his tria l counsel failed to introduce into evid ence a video recording of Chaka
statin g she lied to the police ; (2) his trial counsel failed to require the
Comm on wealth to meet its burd en of proof beyond a reasonable d oubt by producing the gun used in the robbe ry ; (3) hi s trial counsel failed to request lesser

included instruction s to the char ge of first

- degree robbery; a nd (4) the jury
instructions deni ed him the right to a unanimous verdict

.- 6

-

i. General allegation s o f ineffective assistance of cou nsel

Taylor raises several allegations of ineffective a s si st ance of counsel
which he d escribes as “ lac k of personal knowledge, leading, improper character evidence, inconsi stent statement and unfairly prej udicial

. ” These al legations , which presumably rel ate to the admissibility of some of the evidence at tria l , are so lacking in specificity that we are unable to c onduct a meaningful review. RCr 11.42(2) req uires the movant to “state specifically the grounds on wh ich the

sen tence is being challenged and t he facts on which the movant relies in support of such g r ounds.” RCr 11.42(2). “ Conclusory allegations t hat c ounsel was
ine ffective without a statement of the facts upon which those allegations are based
do not meet the ru le ’ s specificity standard and s o ‘ warrant a summary dismissal of
the motion. ’ ” Roach v. Commonwealth , 384 S.W.3d 131, 140 (Ky. 2012) (quot ing
H ill v. Lockhar t, 474 U.S. 52, 56, 106 S. Ct. 3 6 6, 88 L. Ed. 2d 203 (1985) ).

Taylor does raise one specific al legation regarding a video recordin g he claims his moth er sent to him , showing Chaka statin g that she did not know why she lied to the police th at Jevontaye and Qu andarious robbed M yr n a. He
argu e s that his trial counsel was in effective for failing to intr oduce the video into
evidence. Tay lor claims his attorney told him he sent the video to th e assistan t Commonwealth Attorney , who told him the vi de o was “ n o good ” a nd Taylor ’ s mother could be “ lo c ked up ” for recor ding someone without her knowledge.- 7

- Our review of th e record indica tes that this claim concerning the video recording , as well as t h e general allegations regardi ng the evidence, w ere not presented in the RCr 11.42 motion and consequently w ere not ad dr essed by the
trial court in it s order. I t is axiomatic that “ [a ] new th e ory of error cannot be raised for the first time on appe al.” S p ringer v

. Commonwealth , 998 S.W.2d 439, 446 (Ky. 1999) (citations omitted)

. We re cogniz e that “ [p] ro s e pleadings ar e not required to meet the standard of t hos e ap plied to legal co unsel [,] ” B eecham v. Commonwealth , 657 S.W.2d 2 34, 236 (Ky. 1983) , but a n a ppellate court is simply

“ without authority to review issues not raised in or decided by the trial court.” Ten
Broec k Dupont, Inc. v. Brooks , 283 S.W.3d 705, 7 34 (Ky. 2009) (citations omitted)

. Ta ylor further st a te s that the at torney who represented hi m in his post

conviction proceed ings filed a motion to withdraw and then file d a reply in t he RCr
11.42 ac tion. Tay lor c laim s that the firm that employed th is attor ney discovered he
was communicati ng with t he prosecutor and removed him. He further asse rt s that

t he attorney therea fter went to work a t the Commonwealth Attorney ’ s office. Taylor does not explain how his case was prejudic e d by his attorney ’ s alle ged

act ions

. I n any event , “[t]here is no constitutional right to a n attorney in state post

convi c t ion proceedings. Consequen tly, a petitioner cannot claim constitutionally ineffective assistance of counsel in such pr o c eedings.” Bowling v. Commonwealth ,- 8

-

9 81 S.W .2d 545, 552 (Ky. 1998) (quoting Col eman v. Thompson , 501 U.S. 722, 752, 111 S. Ct. 2546, 25 6 6 , 115 L. Ed. 2d 640 (1991) ). ii. Burden of proof

Taylor argues that his trial counsel failed to require the
Commonwea l th to meet its burden of proof beyond a r ea sonable doubt because the
Commonweal th never produced the deadl y weapon used in the robbery a n d Myrna did not identify whether Taylor or Quand a rious had the handgun

. A fter po inting
out that the weapon was not re c overed because the defendants fled wi th it after the robbery , the trial court h eld that Myrna ’s testimony was sufficient proof of the

e x i stence of a deadly weapon , in reliance on Wiley v. Commonwealth , 348 S.W.3d
570 (Ky. 2010)

. In Wi ley , the appella nt c hallenged the sufficiency of the evide nce

su pporting his conviction for the firs t

- degree robbery of a gas s tation. The gas
station cler k te stified that Wiley approached the checkout counter to pay for a soft
drin k , then drew a firearm and demanded money from the cash register, while holding the gun two inches from her face. Id. at 577. The weapon was not
recovered. The Kentucky Supre m e Court ruled that the clerk ’ s testimony constituted sufficient evidence to permit the jury to d ecide whether Wiley
posses s ed a deadly wea pon for purposes of the rob bery charge because it
established that the clerk saw the gun, recogni zed it as “real,” an d described it as
such

. Id

. “ [I] n circumstances where the alleged ‘ weapon ’ is never recovered and- 9

-

its authenticity cannot be readily established . . . [t] he victim ’ s description of the
item would or dinarily provide sufficient evide nce to permit the j ury t o decide
whether it was among the sort of items declared by the legislature to be a ‘ deadly

we apon. ’ ” Wilburn v. Commonwealth , 312 S.W.3d 321, 329 (Ky. 2010)

.

My rna ’ s tes timony that one of her ass ailants p laced a gun to her head and backed her against t h e wall was sufficie nt evidence to prove the existence of a deadly weapon

. Her testimony was bolstered by Chaka ’ s testi mony that one or both of the defendants had guns on their persons when they dro ve to Myrna ’ s apartment. Because t he evidence pr esented a t trial was more than sufficient to prove the existence of a deadly weapon , a defense objec tion on th ese grounds
would have been futile

. Moreover , Taylor ’ s trial counsel did chall enge the
sufficien cy of the evidence on multiple grounds in a motion for a d irected verdict at the close of proof and in a motion for judgment notwithstanding the verd ict

. Thus, Taylor is unable to meet the first “ performance ” prong of th e test f or in effective assistance o f counsel for this claim

. i ii. Jury instructions

T he j ury fou nd b oth defendants guilty of robbery, first degree, principal , or complicitor. Taylo r argues he was entitle d to an instruction on
robber y, second degree , a nd an ins t ruction on burglary.- 10

- “ [I]t is the dut y of the trial court in a criminal case t o instruct the jury
on the whole law of the case, RCr 9.54(1), and this rule requires ins truct ions applicable to ev ery state of the case deducible from or supported to any exte nt by the testimony. ” T

homas v. Commonwealth , 170 S.W.3d 343, 348

- 49 (Ky. 2005) ( citations omitted). “ An instruction on a lesser included offense is r equired if the
evidenc e would permit the ju ry to rationally find the defendant not guilty of the primary offense, but guilty of the lesser offense. ” Id . (citations omitted).

A pers o n is guilty of second

- degree r obbery when “in the course of
commi tting th eft, he uses or thre atens the immediate u se of physical force upon

anot her person with inte nt t o accomplish the theft.” KRS 1 51 5.030(1). “ A person is guil ty of first

- degree robbery w h e n the elements o f second

- degree robbery a re
met and the p rosecution proves t hat eith er the p erpetrator:

(1) is a rmed with a deadly weapon, (2) uses or thre aten s immediate use of a dang erous instru ment, or (3) causes physical i njury to the victim. ”
Joh n s on v. Commonweal th , 327 S.W.3d 501, 505

- 06 (Ky. 2010) (quoting KRS 515.020(1) ( emphasis in o riginal ) )

.

The quest ion for purposes of the viability of a second

- d egree robbery
instruction is whether a reasonable jury could believe Javontaye and Quandarious

1 Kentucky Revised Statutes.- 11

-

w e nt to the apartment and threatened the immediate use of physical force upon Myrna but were not armed with a deadly weapon. Myrna ’ s testimony was clear

t ha t on e of the men stuck the gun throug h her screen door, pointed it at her forehead, t old her to “ shu t th e f *** up , ” a nd backed her against the wall. Chaka
could not recall which of her nephews had a gun but that she did see a gun , it was possible they both ha d guns , and they forced their w ay into the apartment with a gun or guns after Myrna opened the doo r
. T here was simply no eviden ce from
which the jury could conclude that the two assailants were unarmed and that the crime was committed without a deadly wea pon as required for a second

- degree
robber y instruction. A defendant is not entitled to a secon d

- d e gree robbery charge
when a firearm has been brandished

. S wain v. Commonwealth , 887 S.W.2d 346, 348 (Ky. 1994). As the trial court aptly stated in its orde r denying the RCr 11.42
motion , the evidenc e showed the victim was robbed by Taylor and his broth er a t gunpoint and therefore there was no factual basis for any offense other than first

degree robbery. “ Thus, if the instructions were not in error, an evid entiary hearing to determine why defense co unsel did not object to them would be futile and point le s s
. ” Commonwealth v. Davis , 14 S.W.3d 9, 11 (Ky. 1999), as modified (Jan. 20, 2000)

.

As to Taylo r ’ s contention that he was entitled to a n instruction on bu rglary, this argument was never presented t o the trial court

. It may be resolved- 12

-

on s imilar grou nd s to the a rgument regarding a second

- degree robbery instruction.

“ [A] p erson is g uilty of second

- degree bu rglary when ‘ wit h the intent to com mit a

cr ime, he knowingly enters or remains unlawfully in a dwelling ’ but he i s only guilty of first

- degree burg la r y if, in addition to proving the e lements of second

degree burglary, t he prosecu tion shows that either:

( 1) he i s armed w ith a deadly weapon or expl osives, (2) he uses or threatens immediate use of a dangerous instrume nt, o r (3) he causes the vict im p hy s i cal injury. ”
Johnson , 327 S.W.3d at 506 (quoting KRS 511.0 3 0 and KR S 511.0 2 0) (footnotes omitted)

. First

- degree burglary is a class B felony , as is first

- degree robbery, so there would have been no advantage to such an instructi on
. KRS 511.020 (2)

. A

s econd

- degree burglary instruc ti o n would have required the jury to find that Taylor and Quandarious entered M yrna ’s apartment without a deadly weapon or with out the use or threat of use of a dangerous instrument. Such an instru ctio n would not be supported b y the evidence and Taylor ’ s tr i a l counsel was not ineffective for not requesting such an instruction.

Taylor also argues that the jury instructions were f l awed for failing to provid e definition s of principal and co m plicitor . Thi s argument was never presented to the trial court

. Ou r r eview indicates that a full definition of- 13

-

“ complicity ” was provided in the instructions and the conce pts of principal and

co mplicitor were clearly explained with in the in s truction s on the charges
the mselves. C onsequently, we see no grounds to suppo rt a f i nding that trial
counsel was ineffective for failing to request the inclusion of se p arate formal
defi n itions of these terms

. i v. Unanimous verdict

Finally, Taylor claims he was denied the right to a unanimous verdi ct

. The jury was instructed as t o ea ch defendant on the following charges: r obbery , first degree; complicity to robbery, first degr ee; and robber y , fi rst degree , p rincipal or complicitor

. C omplicity is defined in pertinent part as follows :

A person is guilty of an offense committed by an othe r p erson when, with the intention of promoting or facilitating the commission of the offense, he: (a) Solicits, commands, or engages in a conspiracy wit h such other person to commit the offense; or (b ) Aids, counsels, or attempts to aid such person i n pl an n ing or committing the offense; or (c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
KRS 502. 020 (1).

Taylor argues that in order to charge a pe rson as a principal or complicitor , one individu al m us t be cha rged with the original underlying charge

. But “ [c] omplicity is not a sep arate offense. It is rather an alternative theory of the- 14

-

charged offense. ” Futrell v. Common wealth , 471 S.W.3d 258 , 2 77 (K y. 2015) (citation omitted). Kentucky precedent ho lds th a t the principal/complic itor
combination ins tru ction of the t yp e offered in this case does no t create a “ no unanimous verdict issue ‘as long as the evidence [is] sufficient to support a
combination in struction. ’ ” Halvorsen v. Commonwealth , 671 S .W.3 d 68 , 7 3 (Ky. 2023) (quoting Capst r

aw v. Commonwe alth , 641 S.W.3d 148, 158 (Ky. 2022) )

. “[W]h ere both alternatives are supp orted by the evidence, combination principal/accomplice instructions

. . . are pro per. ” Fu trell , 471 S.W.3d at 277

- 78.

This concept is illust rate d i n Fut rell , wherein an appeal was brought by a woma n and her boyfriend who were both convicted of murdering her infant

son. They were the only two people who had access to the child when the murder
was committed and “ a reasonable juror could have been co n vince d th at either Appellant or b oth of them inflicted th e fatal injuries. ” Futrell , 471 S.W.3d at 2 7 1

. T heref ore, b ecause either or both of them could have been found guilty as the principal , the Ke ntucky Supreme Court h eld that a combination instruction was

a ppro priate. “ Combination instructions

– instructions i ncorporati ng alternative theories of a single crime

– are appropriate, we have many times held, when , but only when, the evidence supports all o f the alternatives. ” Id. at 277 (citations

o m itted ).- 15

- Chaka testif

ied that both defendants went to Myr na ’ s apar tment a nd at least one of them was armed

. M yrna testified that one of the m placed the gun against her forehead and threatened her while the oth er robbed her of various
items . This testi m ony c onst ituted sufficient evidence to support the finding that
either Ta ylor or Quantarious threate ned Myrna wi th the handgun and the other acted in complicity . Therefore, the instruction on first

- degree robbery, principal , or complicitor, was proper an d did n ot violate jury unanimity

. Taylor ’s counsel

was no t ineffective for not objecting to this instr uction bec ause it comports fully
with our case law. See C audill v. Commonwealth , 12 0 S.W.3d 635, 666 (Ky. 2003), as modified (Feb. 5, 2 004) ( “ The unanim i ty req uir ement wa s not violated because both theories were supported by the evidence [.] ” ).
CONCLUSION
F or the f oregoing reasons, the Fayette Circuit Court ’ s or der deny ing Taylor ’ s RCr 11.42 motion i s affirmed.

ALL CONCUR.
BRIE F FOR APPE LLANT:
Je v ont aye Ta ylor , pro se Eddy ville , Kentuck y BRIEF FOR APPELLEE : Daniel Camero n Attorney General of Kent ucky Joseph A. Beckett Assista nt Attorney Gen eral Fran kfort , Kentucky