JOHNNIE WIDNER APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

JOHNNIE WIDNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001143–MR

Decided: January 13, 2012

BEFORE:  CAPERTON, MOORE, AND STUMBO, JUDGES. BRIEFS FOR APPELLANT:  Johnnie Widner, Pro Se St. Mary, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

The Appellant, Johnnie Widner, was convicted pursuant to a guilty plea of promoting contraband in the first degree.   He was sentenced to five years of imprisonment, probated for five years.   This appeal concerns the denial of Widner's motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.   Having reviewed the record, the arguments of the parties and the applicable law, we affirm.

On August 31, 2006, Widner was indicted for promoting contraband in the first degree, charges which stemmed from a scheme involving Widner and multiple codefendants, including his wife, to smuggle drugs into the Letcher County Jail. Widner immediately requested, and was later granted, the right to act as co-counsel in his case.   Through the course of the proceedings, Widner was represented by three different attorneys and also filed multiple pro se motions.

On April 15, 2008, the Commonwealth's Attorney entered notice that he was disqualifying himself from the case and a special prosecutor was appointed.   Shortly thereafter, Widner entered a guilty plea pursuant to a plea agreement with the Commonwealth.   Under the terms of that agreement, the Commonwealth agreed to dismiss two other indictments and recommended a five-year sentence probated for five years.   On July 30, 2008, Widner was convicted of promoting contraband in the first degree and was sentenced in accordance with the Commonwealth's recommendation.

Approximately six months later, on February 11, 2009, Widner filed an RCr 11.42 motion alleging ineffective assistance of counsel.   The Commonwealth filed its response on February 27, 2009.   On May 7, 2010, the trial court entered an order overruling Widner's RCr 11.42 motion, and explained its reasons for doing so.

On appeal, Widner argues that the trial court erred in overruling his RCr 11.42 motion without a hearing because the record does not clearly refute his claims of ineffective assistance of counsel.   Although his arguments are somewhat unclear, Widner seems to assert that he was coerced into pleading guilty because of the pending criminal action against his wife.   He also disputes that he was involved in the crime charged, and makes unclear assertions about the Commonwealth's Attorney's “kidnapping” and “attacking” his wife, whom he claims also did not commit the crimes alleged. Double Widner asserts that his counsel was working in concert with the Commonwealth Attorney in coercing him to plead guilty, that counsel failed to advise him of potential affirmative defenses, failed to properly evaluate the evidence against him, and that counsel spoke in a defamatory manner about Widner's “state of mind” at the time the crime was committed during the course of an in camera hearing with the court.

In response, the Commonwealth argues that the trial court properly denied Widner's RCr 11.42 motion without an evidentiary hearing because the record clearly refuted all of his allegations.   Further, the Commonwealth asserts that the record reveals that Widner engaged in a colloquy with the court which indicated that his guilty plea was entered knowing, voluntary, and not coerced as he has alleged.   Accordingly, the Commonwealth argues that Widner's claims of ineffective assistance of counsel are without merit and that the court properly denied his motion.

At the outset, we note that our standard of review of an RCr 11.42 motion is governed by the jurisprudence set forth by our United States Supreme Court.   It has prescribed a two-pronged test describing 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, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (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 and the fundamental fairness of the challenged proceeding.  Id. at 695–96.

The Strickland test, when applied in the context of guilty pleas, was refined by our United States Supreme Court in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).   In Hill, the Supreme Court 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.   We may not disturb the findings of the trial court unless clear error has been committed.  Commonwealth v. Payton, 945 S.W.2d 424, 425 (Ky.1997).   We review the arguments of the parties with these standards in mind.

Upon review of the record, we are of the opinion that all of Widner's allegations of ineffective assistance of counsel could be properly disposed of by a review of the record.   No issues of fact were raised by Widner's motion and, as we have repeatedly held, an evidentiary hearing is not required when the issues presented may be fully considered by a review of the record.   See Lawson v. Commonwealth, 386 S.W.2d 734 (Ky.1965).   Stated simply, Widner's arguments are constructed around his claim that he was coerced into pleading guilty as a result of the Commonwealth's prosecution of his wife.   As the trial court held in its order denying Widner's RCr 11.42 motion, this claim is completely refuted by the statements Widner made in entering his guilty plea.

A review of the colloquy between Widner and the court reveals that in entering his guilty plea, Widner stated that he had spoken with his attorney as much as he needed to, had no complaints about his attorney, had been promised nothing beyond that which was contained in the plea agreement, and that he was not coerced into pleading guilty.   Indeed, in his colloquy with the court, Widner specifically and repeatedly denied that his wife's prosecution played any role in making him feel coerced or forced into entering a plea.

As our United States Supreme Court has held, “[d]eclarations in open court carry a strong presumption of verity.”  Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136, 147 (1971).   Our review of the record reveals that there is no reason to believe that such was not the case sub judice.   Indeed, the trial court's order denying Widner's motion is both thorough and dispositive, and properly disposes of all allegations after a full consideration of the record.   Accordingly, we find no reason to disturb that ruling.

Wherefore, for the foregoing reasons, we hereby affirm the May 7, 2010 order of the Letcher Circuit Court denying Widner's RCr 11.42 motion.

ALL CONCUR.

CAPERTON, JUDGE: