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Court of Appeals of Kentucky.


NO. 2011–CA–000705–MR

Decided: February 17, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  LAMBERT AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Gary Harris, Pro Se Sandy Hook, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky



Gary Harris, proceeding pro se, appeals from an opinion and order of the Muhlenberg Circuit Court entered March 17, 2011, denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his conviction for second-degree robbery.   Our review of the record and the applicable case law convinces this Court that the circuit court properly denied the motion.   Accordingly, we affirm.

On March 13, 2009, the Muhlenberg County grand jury indicted Harris on two counts of first-degree robbery, one count of third-degree trafficking in a controlled substance (Valium), and for being a first-degree persistent felony offender.   Harris's nineteen-year-old wife was also indicted as a co-defendant.   The charges against Harris arose as a result of incidents during the evening of March 3, 2009, when Harris allegedly entered Neighbors One Stop and Fast Eddy's, two establishments in Central City, Kentucky, threatened the cashiers, and took the cash drawers.   At Neighbors One Stop, he also took the cashier's purse.   Police were notified, and Harris was arrested behind Fast Eddy's with the cash drawers in his possession.   He was later arrested on the trafficking charge based upon the 82 Valium pills found in his possession.

At the arraignment on March 20, 2009, both Harris and his wife appeared, and the court appointed public defender Patricia Day to represent him.   Plea negotiations ensued, and again Harris and his wife appeared together at the guilty plea hearing on April 20, 2009, this time accompanied by public defender Amie Martinez.   The record does not address or explain the change in counsel from Ms. Day to Ms. Martinez.   Before conducting any type of guilty plea hearing, the court first examined the waiver of dual representation form tendered by Harris and his wife showing that Harris waived any conflict of interest, his right to separate counsel, and agreed to permit attorney Martinez to represent him while she represented his wife.   The court thoroughly went over the form with both defendants and explained the potential conflicts that might exist with dual representation.   The court then confirmed that Harris had reviewed the form with his attorney and understood the form and permitted him to ask any questions he might have.   Only after completing this process did the court permit attorney Martinez to represent both Harris and his wife.

Once the court was satisfied with the waiver of dual representation, it then proceeded with a guilty plea hearing pursuant to Harris's motion.   The Commonwealth's offer included amending the first-degree robbery charges to second-degree robbery and dismissing the trafficking charge.   The recommended penalty for the robbery charges was ten years on each charge enhanced to twenty years by the PFO I status, to be served concurrently for a total of twenty years.   The Commonwealth's offer for Harris's wife was a four-year sentence for criminal facilitation to commit first-degree robbery, third-degree trafficking in a controlled substance (Valium and Xanax), and possession of marijuana.   The court accepted her plea and sentenced her in accordance with the plea agreement.

Before accepting Harris's plea, the court thoroughly reviewed the motion to enter a guilty plea with Harris, including the waiver of his constitutional rights.   Not until it was satisfied that Harris understood the terms and effect of the plea and found that the plea was intelligently, knowingly, and voluntarily entered into, did the circuit court accept his plea.   The circuit court entered the final judgment and sentence on May 5, 2009, finding Harris guilty pursuant to the terms of the plea agreement and sentencing him to a total of twenty years' imprisonment.

On February 25, 2011, Harris filed a pro se motion seeking RCr 11.42 relief on the basis of ineffective assistance of counsel.   He claimed that his appointed counsel, Ms. Martinez, had a conflict of interest in representing him because his wife's appointed counsel, Ms. Day, worked in the same office, and that their primary interest was to get the best possible plea agreement for his wife.   Harris also stated that they never discussed the potential for conflict and that he never signed a waiver of dual representation.   Furthermore, he contended that Ms. Martinez did not review security video footage or investigate a toy gun found in the vicinity of the robberies as he requested, seek suppression of items found in the hotel room, or seek a competency evaluation or hearing due to his mental state.   By separate motion, Harris requested an evidentiary hearing and appointment of counsel.   The circuit court denied all three motions in an opinion and order entered March 17, 2011, finding that Harris's claims were refuted by the record and that he was not entitled to relief.   This appeal follows.

On appeal, Harris contends that the circuit court abused its discretion in denying his motion for relief and in failing to hold an evidentiary hearing, arguing that there were material issues of fact that could not be resolved on the face of the record.   The Commonwealth disagrees, arguing that Harris failed to establish his claim for relief.

Our standard of review in RCr 11.42 post-conviction actions is as follows:  To establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test;  namely, that 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense.   Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).   Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance.   The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof.   In doing so, the movant must overcome a strong presumption that counsel's performance was adequate.  Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky.1969);  McKinney v. Commonwealth, 445 S.W.2d 874, 879 (Ky.1969).   If an evidentiary hearing is held, we must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel.  Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky.App.1983).   If an evidentiary hearing is not held, as here, our review is limited to “whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.”  Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967).   See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.App.1986).

This case involves the entry of a guilty plea, and the law in Kentucky is well-settled that “[t]he test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”  Sparks, 721 S.W.2d at 727, citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).   The Sparks Court went on to address the two-part test used to challenge a guilty plea based upon ineffective assistance of counsel:

A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty 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.  Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 80 L.Ed.2d 203 (1985).   Cf., Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

Sparks, 721 S.W.2d at 727–28.   See also Bronk v. Commonwealth, 58 S.W.3d 482 (Ky.2001).   With this standard in mind, we shall address the issues Harris raised in his appeal.

Harris's first argument is that his appointed counsel had a conflict of interest.   The circuit court rejected Harris's claim in his RCr 11.42 motion that he had neither signed a waiver of duel representation nor had this been explained to him by the trial court.   In his brief, Harris stated that he did not remember signing the form or discussing the issue with his counsel.   Our review of the record revealed both the waiver of dual representation as well as the video recording of the court explaining the form as well as the potential conflicts that might exist.   Based upon our review, we agree with the Commonwealth that Harris waived any conflict of interest that might have arisen from the dual representation of him and his wife.   Therefore, we hold that Harris has not established that he is entitled to relief on this issue.

Next, Harris argues that his counsel was ineffective for her failure to adequately investigate aspects of his case, which he claims impacted his decision to enter a guilty plea.   The circuit court declined to consider Harris's arguments concerning the toy gun and the security camera footage, holding that the entry of a voluntary, intelligent plea precluded a post-conviction challenge to the sufficiency of the evidence, citing Hendrickson v. Commonwealth, 450 S.W.2d 234, 235 (Ky.1970).   However, Harris has couched his argument on this issue in terms of whether his attorney's advice to him to enter a plea without completing an investigation of his defenses rendered her performance so defective that it affected the plea process.   The Commonwealth argues that counsel's assistance was not ineffective in this regard.

Harris first addresses his claim that his counsel failed to seek a fingerprint analysis on a toy gun found in the vicinity of the robberies or to formulate a defense that the toy gun could not support a charge of first-degree robbery.   While he maintains that he did not commit the robberies or use the toy gun for any reason and that his fingerprints would not appear on the toy gun, Harris nevertheless contends that the toy gun could not support the charge pursuant to Wilburn v. Commonwealth, 312 S.W.3d 321, 329 (Ky.2010) (“[W]e construe KRS 500.080(4)(b)'s definition of ‘deadly weapon’ as a reference generally to the class of weapons which may discharge a shot that is readily capable of producing death or serious physical injury.   A .38 caliber revolver, operable or not, falls into that class of weapons.   A toy gun or a water pistol does not.”).   The Commonwealth points out that Harris entered his guilty plea in 2009, the year before the Supreme Court overruled Merritt v. Commonwealth, 386 S.W.2d 727 (Ky.1965), in Wilburn, supra.  Merritt had been the law in Kentucky for decades.   It held that any object used to convince a victim that it was a pistol or some other deadly weapon, and does so, is a deadly weapon.   Id. at 729.   Therefore, Harris's attorney cannot be faulted for not raising a defense based upon the use of a toy gun rather than a deadly weapon.   Furthermore, the police report revealed that the cashier at one of the stores stated that Harris had shown a gun during the robbery.

Harris's second argument on this issue relates to information he received from his attorney about video surveillance taken by a security camera.   He claims that had he known that the Commonwealth did not have the actual video footage showing a white vehicle similar to his in the vicinity of the robberies, but would be relying instead upon live testimony, he would not have pled guilty.   As with the toy gun issue, we agree with the Commonwealth that neither evidentiary issue could reasonably have affected Harris's decision to enter a guilty plea.   Based upon the record in this case, the Commonwealth had substantial evidence to support a finding of guilt, including eyewitness testimony and the police's arrest of Harris behind one of the stores that was robbed with the cash drawers in his possession.   Therefore, we cannot identify any deficient performance on Harris's counsel's part that would have affected the plea process to such an extent that Harris would have not decided to plead guilty.

For his last argument, Harris contends that his trial counsel was ineffective for failing to pursue a competency evaluation on his behalf after he told her he had been severely depressed since his mother's death.   The circuit court, after a review of the record, found that Harris entered his plea competently, intelligently, and voluntarily, noting that he “quite lucidly” informed the court that he understood all matters surrounding the plea.   Based upon our review of the record, we must agree with the circuit court that Harris's plea was competent, intelligent, and voluntary, and that there was no reason for his counsel to seek a competency evaluation.   Therefore, Harris's counsel could not be ineffective for failing to seek such an evaluation.

Because Harris's arguments could be conclusively refuted by the record, the circuit court properly declined his request for an evidentiary hearing.

For the foregoing reasons, the opinion and order of the Muhlenberg Circuit Court denying Harris's motion for RCr 11.42 relief is affirmed.