RODNEY WEINEL v. COMMONWEALTH OF KENTUCKY (2010)

NOT TO BE PUBLISHED

AFFIRMING

Rodney Weinel appeals from the order of the Campbell Circuit Court denying his motion filed pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42.   After our review, we affirm.

Weinel's convictions are the result of two separate incidents that occurred in 2005.   First, he and his co-defendants broke into a place of business in Wilder, Kentucky.   They stole a pickup truck, a lawn tractor, a generator, and numerous tools.   The cumulative value of the stolen property was approximately $13,500.   A few days later, Weinel and his co-defendants broke into a house whose owner had recently been murdered by his wife.   The man's family had not yet removed his belongings from the house.   Weinel and his co-defendants sacked the house, removing furniture and personal items from the home.   When the police first made contact with Weinel, he was wearing a baseball cap that had belonged to the deceased man.

On June 1, 2006, the third day of his jury trial, Weinel entered an open guilty plea to complicity to second-degree burglary, complicity to theft by unlawful taking of a value more than $300,^Double and being a persistent felony offender in the first degree.   On June 27, 2006, the court sentenced Weinel to thirty-five years' incarceration.   In May 2007, Weinel, pro se, filed a motion to vacate, set aside, amend, and/or correct his sentence pursuant to RCr 11.42.   The trial court declined to grant an evidentiary hearing and denied the motion.   This appeal follows.

Weinel first argues that the trial court erred when it did not grant his motion for an evidentiary hearing to establish that he received ineffective assistance of counsel.   We disagree.

After an RCr 11.42 motion and the responsive answer have both been filed, the trial court must determine if there are any “material issue[s] of fact that cannot be conclusively resolved ․ by an examination of the record.”   Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky.2001). (emphasis added).   See also RCr 11.42(5).

As the basis for his claim that he should have received an evidentiary hearing, Weinel contends that his counsel led him to believe that a previous plea offer of ten years was still available.   He contends that but for his mistaken belief that he would receive a ten-year sentence, he would have continued with the trial rather than entering a guilty plea.   We are not persuaded by his argument.

First, we note that Weinel did not include videotapes of the trial or of his plea in the record.   Therefore, we “must assume that the [videotape] supports the decision of the trial court.”  Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky.1985).   Fortunately, the trial court's order is very detailed and includes a discussion of this issue as concrete support for the presumption that we are required to make under Thompson.   It states:

A very careful review of the video recordings of [Weinel's] plea make it plain that [Weinel] understood that his plea was an open plea, that is, that the Court was free to determine his sentence.   For example, at the beginning of the plea, defense counsel informed the Court that he had discussed with [Weinel] his “desire to enter an open plea and put his ‘hands' in the Court.”   When asked if this were true, [Weinel] responded “yes sir”. [sic] After asking [Weinel] if he understood what he was doing, the Court stated, “It's an open plea, you understand that?”  [Weinel] responded “yes sir”. [sic] Later during the plea process he was once again informed that the plea being entered was an open plea and [Weinel] was asked if he understood it and still wished to plead guilty.  [Weinel] responded that he did.

(citations to video record omitted).   Furthermore, the record of appeal includes video of a pre-trial hearing where Weinel was present.   During the course of the hearing, defense counsel, the Commonwealth's Attorney, and the court discussed at length the possible open plea of a co-defendant.   It included the court's very clear statement that “Open plea means you take your chances at sentencing.”  (Emphasis added.)   The Commonwealth Attorney also referred to an open plea as being one “without my recommendation.”   Weinel heard the conversation which left no doubt as to the definition and consequences of an open plea.

In light of these facts, the record resolves any dispute as to Weinel's contention that he thought he would receive a ten-year sentence at the time of his plea.   We agree with the circuit court that an evidentiary hearing was unnecessary to dispose of this issue.

Weinel's second argument is that he received ineffective assistance of counsel because his attorney advised him to plead guilty.   We disagree.

Our standard of review of an ineffective assistance of counsel claim is governed by rules set forth by the Supreme Court of the United States.   It has prescribed a two-pronged test setting forth the defendant's burden of proof in these cases:

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 (1984), adopted in Kentucky by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky.1985).   Both criteria must be met in order for the test to be satisfied.   The Strickland Court emphasized that reviewing courts should assess the effectiveness of counsel in the light of the totality of the evidence presented at trial as well as the fundamental fairness of the challenged proceeding.  Id. at 695-96.

In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court refined the Strickland test in the context of guilty pleas.   It held that “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”  Id. at 59.

Advising a client to enter a guilty plea does not, per se, constitute ineffectiveness of counsel.  Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App.2004).   Weinel entered his guilty plea on his third day of trial.   He had had the opportunity to listen to the Commonwealth's evidence and to observe the jury's reaction.   As the Commonwealth pointed out, he “had seen the disgust in their eyes.”   Weinel told the court that his plea was voluntary.   He presents no evidence to contradict the voluntariness of his plea.

Weinel's third claim is that he received ineffective assistance of counsel as a result of his attorney's failure to investigate, prepare, and present his defense.   In support of this argument, Weinel contends that his counsel had not explained his charges, that the Commonwealth's case against him was weak, and that his motion for funding for an expert witness was not granted.   We will address each of these contentions in turn.

First, we address Weinel's claim that he did not understand the charges against him.   As the trial court discussed at length during Weinel's sentencing, he previously had been convicted of felony burglary on at least thirteen occasions.   Furthermore, the record shows that the elements of each offense were listed clearly in the indictment.   Weinel has not shown any proof other than his bare, unsupported accusation that he did not understand the offenses for which he was charged, an accusation that lacks credibility on its face in light of his numerous encounters with the criminal justice system.

Next, Weinel offers no proof to support his contention that the Commonwealth's case against him was not strong.   On the contrary, the record shows that numerous witnesses saw Weinel with the stolen property;  others had purchased stolen property from him.   Additionally, his fingerprints were found in the stolen truck and in the burglarized house.   Items stolen from the house were recovered from the room in which Weinel slept.   This summary supports a conclusion that the Commonwealth's case was quite robust rather than weak as Weinel alleges.

Third, Weinel's contention that his motion for funds for an expert witness was denied is factually incorrect.   The record submitted includes the videotaped hearing at which this motion was granted.

The record contains numerous motions submitted by Weinel's counsel in attempts to suppress evidence and to obtain discovery.   At his sentencing, the trial court remarked that Weinel's counsel had vigorously advocated his rights.   Weinel does not offer any proof that suggests otherwise.   He does not enumerate what evidence or potential witnesses could have been obtained through further investigation.   We are reminded that RCr 11.42 motions are “to provide a forum for known grievances and not an opportunity to conduct a fishing expedition for potential grievances.”  Sanborn v. Commonwealth, 975 S.W.2d 905, 910 (Ky.1998) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009)).

Finally, Weinel argues that the court committed errors so numerous that they cumulatively resulted in a violation of his constitutional rights.   He has provided us only a numerical list with references to his original pro se brief filed in the trial court.  RCr. 11.42(2) requires that a motion for relief “shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds.”   The Supreme Court of Kentucky has commented upon that requirement by defining it as “more than a shotgun allegation of complaints.”  Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky.1993).   The movant bears the burden to “establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding.”  Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001) (citing Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky.1968)).   The Rules demand “a minimum of factual basis” for the motion to survive.  Stanford, 854 S.W.2d at 748.

In more colorful language, the Stanford court observed:  “It is inappropriate for a movant to seek a hearing hoping, in the words of Mr. Micawber that ‘something would turn up.’ ”  Id. In this case, Weinel was searching but nothing of any substance has turned up.

We affirm the dismissal by the Campbell Circuit Court of this RCr 11.42 motion.

ALL CONCUR.

COMBS, JUDGE: