RONNIE JOE FORTE v. COMMONWEALTH OF KENTUCKY (2012)

NOT TO BE PUBLISHED

AFFIRMING

Ronnie Forte appeals from a Daviess Circuit Court order denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing.   Forte argues that his counsel did not adequately investigate his case before advising him to enter a guilty plea.   For the reasons set forth below, we affirm.

On April 28, 2006, Forte was pulled over by the Owensboro police, allegedly for driving recklessly.   According to the police report, Forte consented to a search of his person.   The officers found several baggies of crack cocaine in his pants' pocket.   Forte was indicted on one count of first-degree trafficking in a controlled substance, subsequent offense.   On November 3, 2006, he appeared in court to enter an Alford plea of guilty to the lesser offense of first-degree possession of a controlled substance.   On December 7, 2006, he was sentenced to serve five years in the penitentiary and fined $1,000.

On December 28, 2007, Forte filed a pro se RCr 11.42 motion, alleging ineffective assistance of counsel.   He argued that the police stop had violated his Fourth Amendment rights, and that his counsel had been ineffective for advising him to plead guilty rather than seeking to suppress the evidence recovered as a result of the search.   He was appointed post-conviction counsel, who hired an investigator to look into Forte's claim that the traffic stop was not supported by probable cause.   The investigator contacted the Owensboro Police Department and obtained the audio recording of a police radio conversation that occurred in the moments before Forte was pulled over.   The portion of the recording that is pertinent to this appeal consists of the following exchange between a police detective and the patrol officer who stopped Forte:

Detective:  Hey Greg, start heading this way.

Patrol Officer:  Ok, you want me to come all the way up in the lot?

Detective:  He's in a red four door Cavalier, he's circling through the lot getting ready to come back out on Bosley.

Patrol Officer:  From up there where you're at?

Detective:  He's facing Bosley right now in the car;  he hasn't turned on Bosley yet.

Patrol Officer:  Ok, just let me know if he goes north or south.

Detective:  Headed south!

Patrol Officer:  Ok.

Detective:  He's coming towards the light.

Patrol Officer:  I'm behind him.

Detective:  Pull him over!

Patrol Officer:  Car in front of me correct?

Detective:  I don't see you yet, pull him over.

Lengthy pause.

Patrol Officer:  Is he by himself?

Detective:  Affirmative.

Forte argues that this recording supports his theory that he was not pulled over for reckless driving.   Forte contends that the police were actually looking for his cousin, Corey Forte.   Forte was driving Corey's wife's car at the time he was pulled over.   He argues that if his attorney had conducted a proper investigation, she would have discovered this recording and insisted upon filing a motion to suppress the evidence.   In his pro se RCr 11.42 motion, Forte claimed that he repeatedly asked his attorney to file a motion to suppress the evidence.   According to Forte, she assured him that she would do so, but when the time for his trial approached, she urged him to accept a plea offer resulting in a sentence of five years.   She advised him that the offer would probably not still be available if he insisted on a suppression hearing.   Forte informed his counsel that he had decided that the plea offer was not in his best interest and that he wanted to retain private counsel because of her poor representation and neglect of his defense.

A hearing was held on November 2, 2006, the day before Forte's trial.   There is no videotape of this hearing in the record, and the following account is taken from Forte's pro se RCr 11.42 motion.   At the hearing, Forte's attorney informed the court that Forte did not want to accept the plea offer, against her best advice.   She moved to withdraw from the representation.   The court stated that the case was set for trial the next day.   Forte responded that he had an appointment to speak with another attorney, that he felt that he had strong grounds for a suppression motion, that he had a conflict of interest with his attorney, and that he had the right to get another attorney.   Forte asked for a continuance.   The court denied the continuance and refused to allow Forte's attorney to withdraw, stating, “I don't know, he may need some help if we have a trial.   So right now I cannot grant that motion [to withdraw] but obviously if you come in with separate counsel satisfying the court that your rights will be protected through the proceedings I'd be happy to discharge [your attorney], but otherwise I expect you to be here ready to go forward.”   The Commonwealth Attorney stated that the plea offer was withdrawn and that the Commonwealth was ready to go to trial the next day.

Forte's pro se motion further states that, after the hearing, he contacted several attorneys, all of whom told him that they could not assist him unless he was granted a continuance.   One attorney told Forte that it might be in his best interest to agree to the plea bargain the next day in order to “buy time.”   Forte reminded him that the Commonwealth had withdrawn the offer.   According to Forte, the attorney then called the Commonwealth Attorney and Forte's attorney, and informed him that they had decided to put the offer back on the table.   Forte asked if he would be able to withdraw this plea before final sentencing and the attorney guaranteed that he could.   He claims he entered the plea thinking it was just a formality and that he would be allowed to withdraw the plea.   After entering the plea, he retained a new attorney who moved to withdraw the guilty plea.   The motion was denied.   There is no evidence in the record that Forte filed an appeal from the denial of the motion to withdraw the plea.

The trial court denied the RCr 11.42 motion without an evidentiary hearing and this appeal followed.   In an RCr 11.42 proceeding, the movant has the burden “to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceedings[.]”  Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky.1968).   The test for determining ineffective assistance of counsel on a guilty plea has two components:

(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance;  and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.

Sparks v. Commonwealth, 721 S.W.2d 726, 727 –728 (Ky.App.1986).   Furthermore, “[i]t is well established that the advice by a lawyer for a client to plead guilty is not an indication of any degree of ineffective assistance.”  Beecham v. Commonwealth, 657 S.W.2d 234, 237 (Ky.1983).

An evidentiary hearing on an RCr 11.42 motion “is only required when the motion raises an issue of fact that cannot be determined on the face of the record.   To do this, the court must examin[e] whether the record refuted the allegations raised[.]”  Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky.2008) (internal citations and quotation marks omitted).

In ruling on Forte's motion, the trial court held that his attorney's advice to accept the plea offer was a matter of trial strategy that should not be second-guessed in hindsight.   Forte argues that his counsel's advice could not be attributable to trial strategy because, due to her failure to investigate and locate the recording, she was incapable of making an informed decision on the matter.   We disagree.   The recording merely establishes that Forte was stopped by a patrol officer at the instruction of a detective, possibly in the mistaken belief that Forte was his cousin, Corey.   The police report stated that “Subject made several furtive movements when stopped, appeared to put something in his mouth and move[d] around in the seat a lot.”   Even if for the sake of argument we accept Forte's claim that the initial detention was illegal, his subsequent behavior could constitute an “intervening circumstance” which would have dissipated the taint caused by the unlawful stop.  Hardy v. Commonwealth, 149 S.W.3d 433, 436 (Ky.App.2004).   We are not persuaded that the discovery of the recording would have altered his attorney's view that a suppression motion would be unsuccessful, and that Forte's best choice was to accept the plea offer.

Furthermore, as the trial court also observed, Forte knowingly and voluntarily renounced his rights in open court.   During the course of the guilty plea colloquy, the trial court expressly referred to what had occurred during the hearing on the previous day, when Forte had stated that he wanted to file a Fourth Amendment suppression motion.   The judge asked Forte whether he had looked into the issue and obtained second opinions, and also asked him very specifically if he realized that by pleading guilty he was waiving the Fourth Amendment claim.   He told Forte, “If you're not guilty you ought to try the case – do you understand – juries are good at sorting out the facts.”   Forte answered in the affirmative when the trial court asked if he was completely satisfied with the services of his attorney and if she had done everything she could, legally, ethically and morally in his defense.   The United States Supreme Court has held that a defendant's statements in court in the course of entering a guilty plea are “a formidable barrier in any subsequent collateral proceedings.   Solemn declarations in open court carry a strong presumption of verity.”  Blackledge v. Allison, 431 U.S. 63, 73–74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).   Furthermore, an attorney's advice to a client to plead guilty does not necessarily constitute ineffective assistance of counsel, particularly when an advantageous plea agreement might have been withdrawn by the Commonwealth.  Beecham at 236–237.

Finally, because the record in this case refutes Forte's allegations, the trial court did not err in denying his motion without an evidentiary hearing.

ALL CONCUR.

STUMBO, JUDGE: