RAYFORD POOLE v. COMMONWEALTH OF KENTUCKY (2010)

NOT TO BE PUBLISHED

AFFIRMING

Rayford Poole appeals from an order of the McCracken Circuit Court denying his Kentucky Rule of Criminal Procedure (“RCr”) 11.42 post-conviction motion to set aside his plea and sentence.   He contends that his trial counsel provided ineffective assistance of counsel by failing to fully investigate a persistent felony offender charge which was unsupported by prior felony offenses.   Poole contends he was prejudiced by his counsel's failure to discover that his prior convictions were only misdemeanors.   For the reasons stated herein, we affirm.

History

On December 8, 2000, Poole and two co-defendants, Clinton Brewer and Randy Springfield, were indicted for murder and two counts of first-degree robbery.   A superseding indictment was issued on February 16, 2001, charging Poole and his co-defendants with murder, two counts of first-degree robbery, and first-degree burglary.   On March 9, 2001, a second superseding indictment was filed which charged Springfield with murder, Brewer with complicity to murder, Poole with complicity to murder, each of the defendants with two counts of first-degree robbery and first-degree burglary, and Poole with being a persistent felony offender in the second degree (“PFO II”).   On March 14, 2001, the Commonwealth filed a notice of its intent to seek the death penalty.

Poole was represented by two attorneys from the Department of Public Advocacy, William Nesmith and Mike Ruschell.   Poole's PFO II charge was supported by a prior conviction in Illinois which the Commonwealth believed to have been a felony conviction.   Poole avers that he told his counsel and the Commonwealth that he was not eligible for PFO II because his prior convictions were misdemeanors.   Poole contends that his counsel did not investigate this fact, but instead chose to rely on the Commonwealth's information.^Double Poole and his co-defendants each were offered plea deals by the Commonwealth and each chose to reject his offer.   Poole contends that he chose to reject his offer because he knew he was not PFO eligible.   Thus, the case proceeded to trial.

In the middle of trial, on May 10, 2002, the Commonwealth's Attorney received notice that Poole's prior convictions from Illinois were, as Poole had contended, misdemeanors rather than felonies.   Thus, Poole could not be found as a PFO II and that charge was dismissed.   The trial continued and Poole was ultimately found guilty by a McCracken County jury of wanton murder, two counts of first-degree robbery, and one count of first-degree burglary.   His co-defendants were likewise convicted of the charged offenses.

At the conclusion of the guilt phase and prior to the sentencing phase of the trial, the Commonwealth again made plea offers to all three defendants.   Poole and his co-defendants each accepted plea offers.   The trial court entered its final judgment on July 1, 2002.   Poole was sentenced to life in prison for wanton murder, 20 years on the two counts of robbery and 20 years on the burglary, with the sentences to run concurrently.

On April 27, 2005, Poole filed a motion to vacate his conviction and sentence pursuant to RCr 11.42 and requested appointment of counsel and a hearing.   One of Poole's claims was that his counsel's failure to investigate his prior Illinois convictions prejudiced him and that he would have been in a better bargaining position during the initial plea negotiations if his counsel had properly investigated.   The trial court denied the motion without a hearing on July 1, 2005.   Poole appealed to this Court and we affirmed in part and remanded.   The prior panel of this Court instructed the trial court to hold an evidentiary hearing on the question of whether Poole's counsel failed to adequately investigate the nature of his prior Illinois criminal convictions and whether such inadequate investigation affected the outcome of the plea process (2006-CA-001126-MR).

On remand, the trial court held an evidentiary hearing on June 27, 2008.   Thereafter, the trial court again denied Poole's RCr 11.42 motion.   It is from this denial that he now appeals.

Analysis

On appeal, Poole essentially makes the same argument previously advanced before this Court;  namely, that he would have been in a better bargaining position if his counsel had properly investigated and that he was prejudiced by his counsel's failure to do so.

On review of a denied RCr 11.42 motion alleging ineffective assistance of counsel, we apply the Strickland standard and ask whether the defendant proved (1) that his counsel's performance was deficient, and (2) that he was prejudiced in his defense due to such deficiency.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   In cases where a defendant has entered a guilty plea, the prejudice requirement of Strickland can only be satisfied by a showing that counsel's deficient performance affected the outcome of the plea bargaining process.  Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).  “In other words, 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, 370.

In the present case, as an evidentiary hearing has been held, we must determine whether the trial court was erroneous in its finding that Poole received effective assistance of counsel.  Lynch v. Commonwealth, 610 S.W.2d 902 (Ky.App.1980);  Ivey v. Commonwealth, 655 S.W.2d 506 (Ky.App.1983).   When reviewing the trial court's findings, we defer to the determination of the facts and credibility of the witnesses made by the trial court.  McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986).   In its opinion and order of September 15, 2008, denying Poole's RCr 11.42 motion, the trial court found that Poole had received effective assistance of counsel.   We agree.

To begin, we must initially address the first prong of the Strickland and Hill tests, namely, whether Poole's counsel's performance was deficient.   In order to prove deficient performance, Poole “must show that counsel's representation fell below an objective standard of reasonableness.”  Hill v. Lockhart, 474 U.S. at 57, quoting Strickland v. Washington, supra.   We agree with the trial court that Poole has failed to show that his counsel's performance fell below an objective standard of reasonableness.

Poole's counsel requested certified copies of his Illinois convictions from the Cook County Circuit Clerk in Illinois.   Upon receipt of same, it appeared to Poole's counsel that the prior convictions were felonies.^Double Further, Poole's counsel also called the Illinois Circuit Clerk's Office and spoke with a clerk who confirmed that the convictions were felony convictions.   Thereafter, Poole's counsel confronted him with the information that the prior convictions were felonies.   Instead of refuting this information, Poole simply stated that the convictions were “not as bad” as they looked.   This appeared to Poole's counsel to be an indication that he was agreeing they were felonies.

Indeed, both the defense and the Commonwealth believed the convictions to be felonies until the Commonwealth received a letter from the State's Attorney in Illinois informing that the convictions were considered Class A Misdemeanors under Illinois law.   The Commonwealth stated at the evidentiary hearing that the offenses were considered felonies under Illinois law at the time of Poole's convictions.   The Commonwealth further explained that the status of the offenses was subsequently changed to “misdemeanor” after the ruling of the Illinois Supreme Court in People v. Cervantes, 189 Ill.2d 80, 723 N.E.2d 265, 243 Ill.Dec. 233 (1999).   Apparently, Illinois Public Act 88-680, in effect at the time that Poole committed the offenses in Illinois (Possession of a Firearm and Possession of a Firearm in a Public Place ), acted as an enhancement to the offenses, making them punishable as felonies.   Illinois Public Act 88-680 was declared unconstitutional in 1999 by the Illinois Supreme Court.  People v. Cervantes, supra.^Double

From the evidence in the trial record and as brought forth in the evidentiary hearing, it seems clear that Poole's counsel did not exhibit deficient performance.   It was objectively reasonable for counsel to believe that they could rely upon the accuracy of the certified conviction.   To impose some greater burden upon attorneys to research every certified conviction to ensure that the convictions have not later been altered by judicial fiat would be an unreasonable and unworkable standard.   We will impose no such burden upon the bench and bar.

As we agree with the trial court that Poole failed to meet the first prong under Strickland, supra, and Hill, supra, we need not address the second prong of the test.   Indeed, if both prongs are not met, an ineffective assistance claim must fail.  Id. Accordingly, we affirm the trial court's denial of Poole's RCr 11.42 motion.

ALL CONCUR.

WINE, JUDGE: