RONALD HOPKINS APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

RONALD HOPKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–000462–MR

Decided: March 23, 2012

BEFORE:  CLAYTON, MOORE, AND NICKELL, JUDGES. BRIEF FOR APPELLANT:  Ronald R. Hopkins, Pro se West Liberty, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Ronald Hopkins appeals the Anderson Circuit Court's order denying his RCr  Double 11.42 motion to vacate, set aside, or correct his sentence.   After a careful review of the record, we affirm because Hopkins's claims that he received the ineffective assistance of trial counsel lack merit.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hopkins was indicted on charges of:  first-degree robbery;  kidnapping;  tampering with physical evidence;  possession of a firearm by a convicted felon;  fourth-degree assault;  alcohol intoxication in a public place;  and being a first-degree persistent felony offender (PFO–1st).

On the day that the jury trial was scheduled to start, a hearing was held in which Hopkins requested to fire his attorney.   Hopkins alleged that he had not had enough time to speak with his attorney.   During the prior year, he had only spoken with his attorney a total of about forty-five minutes.   Hopkins contended that he did not believe he had been represented as he should have been by his counsel.

The trial court denied Hopkins's motion to fire his attorney, reasoning that:  Defense counsel had a significant amount of experience in representing criminal defendants;  defense counsel was very capable of representing Hopkins in this matter;  defense counsel had conducted “adequate” trial preparation in the past;  and defense counsel was prepared to represent Hopkins at trial that day.   The trial court also noted that Hopkins had had enough time to try to retain other counsel prior to trial, but Hopkins had failed to do so.   Therefore, the court denied his motion to fire his attorney.   Defense counsel also noted for the record that he had spent more than forty-five minutes with Hopkins, that they had discussed the discovery, discussed the case, and discussed what Hopkins wanted to do, and counsel opined that he believed Hopkins was not happy about the plea offer that had been made by the Commonwealth.   So, Hopkins had rejected the plea offer.

The case proceeded to jury trial and, following voir dire, the Commonwealth informed the court that it had reached a plea agreement with Hopkins.   The Commonwealth explained that Hopkins agreed to assist sheriff's deputies in locating the money that had been stolen as part of the robbery in exchange for the Commonwealth agreeing to dismiss the PFO–1st charge and recommending a total sentence of fifteen years.

A plea colloquy ensued, during which Hopkins gave details concerning the crimes he committed.   He informed the court that on the day in question, he went to a Marathon gas station with Lewis Gentry Taylor with the intent of robbing the station's owner, John Ellis.   Hopkins robbed the station's owner at gunpoint, taking thousands of dollars, after which Hopkins told Ellis to walk outside because he was going to kill Ellis.   A physical altercation between Hopkins and Ellis occurred, Hopkins dropped the gun, and Hopkins ran away from the scene after retrieving the gun.   Hopkins ran down a hill, buried the money under a large rock, and dropped the gun.   He went back up the hill and across the street from the Marathon station to a Shell station.   Hopkins realized he did not have transportation to leave the area.   So, he borrowed someone's mobile telephone at the Shell station and called Taylor to determine Taylor's location.   Taylor hung up the telephone on him, and Hopkins was subsequently arrested at the Shell station.

Hopkins pleaded guilty to the charges of:  first-degree robbery;  kidnapping;  tampering with physical evidence;  possession of a handgun by a convicted felon;  fourth-degree assault;  and alcohol intoxication in a public place.   The PFO–1st charge was dismissed by the Commonwealth.   Hopkins was sentenced as follows:  fifteen years of imprisonment for first-degree robbery;  fifteen years of imprisonment for kidnapping;  five years of imprisonment for tampering with physical evidence;  five years of imprisonment for possession of a handgun/firearm by a convicted felon;  twelve months of imprisonment for fourth-degree assault;  and a $20.00 fine for alcohol intoxication in a public place.

Almost two years later, Hopkins moved to vacate, set aside, or correct his sentence pursuant to RCr 11.42.   In his motion, Hopkins alleged various claims of the ineffective assistance of trial counsel.   He also requested an evidentiary hearing pertaining to his claims.   The circuit court denied Hopkins's RCr 11.42 motion without holding an evidentiary hearing.

Hopkins now appeals, contending that he received:  (a) the ineffective assistance of trial counsel when counsel failed to represent his interests because counsel “only visited [Hopkins] on maybe three occasions for about five minutes in the ten months prior to the entry of the plea agreement”;  (b) the ineffective assistance of trial counsel when counsel failed to inform Hopkins that the defense of voluntary intoxication was a possible defense and counsel failed to defend the case and seek defense witnesses;  and (c) the ineffective assistance of trial counsel when counsel did not investigate the case.   Hopkins also asserts that the circuit court should have granted his request for an evidentiary hearing.

II. STANDARD OF REVIEW

In a motion brought under RCr 11.42, “[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding․  A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge.”  Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky.2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky.2009).   An RCr 11.42 motion is “limited to issues that were not and could not be raised on direct appeal.”  Id. Hopkins alleges that the circuit court should have granted his request for an evidentiary hearing concerning his RCr 11.42 claims.   Pursuant to RCr 11.42(5), if there is “a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing․”

III. ANALYSIS

A. TIME COUNSEL SPENT WITH HOPKINS

In his RCr 11.42 motion and in his appellate brief, Hopkins contends that he received the ineffective assistance of trial counsel when his court-appointed defense counsel failed to represent his interests when counsel only met with him on “three occasions for about five minutes.”   Because Hopkins entered a guilty plea, he must prove that he would not have entered a guilty plea but for counsel's ineffectiveness, to be successful in this appeal.

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.

Bronk v. Commonwealth, 58 S.W.3d 482, 486–87 (Ky.2001) (quotation marks omitted).

In denying relief based upon this claim, the circuit court reasoned as follows:

[T]he record is clear that the conflict between [Mr.] Hopkins and [defense counsel] was brought to the attention of the Court in chambers by Mr. Hopkins and that he had been given the opportunity to retain private counsel if he so chose.   Mr. Hopkins failed to do so and the Court expressed its confidence in [defense counsel] based on several years of past experience.

We note that although Hopkins contended in his RCR 11.42 motion and in his appellate brief that defense counsel only met with him three times for about five minutes, in the trial court hearing when he moved to fire his attorney before entering his guilty plea, Hopkins told the trial court that his attorney had met with him for forty-five minutes.   Furthermore, defense counsel informed the court during that hearing that he had met with Hopkins for more than forty-five minutes.   Thus, there is a significant discrepancy between what Hopkins told the court at the time he moved to fire his defense counsel and what he claimed in his RCr 11.42 motion and in the present appeal.   Consequently, this may have been an issue of witness credibility, and we must defer to a circuit court's determination regarding witness credibility.   See Simmons, 191 S.W.3d at 561, overruled on other grounds by Leonard, 279 S.W.3d at 159.

Regardless, because Hopkins was aware of how much time he had spent meeting with his attorney before he entered his guilty plea, there is not a reasonable probability that he would have proceeded to trial but for this allegedly deficient performance, particularly considering that the PFO–1st charge was dismissed in exchange for his guilty plea.

B. FAILURE TO INFORM OF VOLUNTARY INTOXICATION DEFENSE, DEFEND CASE, AND SEEK DEFENSE WITNESSES

Hopkins next alleges that he received the ineffective assistance of trial counsel when counsel failed to inform him that the defense of voluntary intoxication was a possible defense and when counsel failed to defend the case and seek defense witnesses.   Hopkins pleaded guilty to the charge of Alcohol Intoxication in a Public Place, pursuant to KRS 222.202(1), which provides:  “A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.”

Hopkins argues that his defense counsel should have informed him of the voluntary intoxication defense, which acts to negate the intent element of a crime.   Pursuant to KRS 501.080:

Intoxication is a defense to a criminal charge only if such condition either:  (1) Negatives the existence of an element of the offense;  or (2) Is not voluntarily produced and deprives the defendant of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

“In order to justify an instruction on intoxication, there must be evidence that not only was the defendant drunk, but that he was so drunk that he did not know what he was doing.”  Lickliter v. Commonwealth, 142 S.W.3d 65, 68 (Ky.2004).

In the present case, even if Hopkins was intoxicated, he clearly knew what he was doing.   He admitted to the trial court during his plea colloquy that after committing the crimes against Ellis, Hopkins ran down a hill, buried the money he had obtained during the robbery under a large rock, and threw down the gun.   He then went to another gas station, borrowed someone's telephone, and attempted to call Taylor to discern his location.   Based upon this evidence, the voluntary intoxication defense was not available to Hopkins.   Consequently, his counsel did not render ineffective assistance in failing to inform Hopkins about this inapplicable defense.

Furthermore, Hopkins contends that his counsel failed to defend the case and seek defense witnesses.   However, the only defense Hopkins contends his counsel should have raised was that of voluntary intoxication, which we have already determined was inapplicable in this case.   Moreover, Hopkins does not assert on appeal, nor did he assert in his RCr 11.42 motion, whom his counsel should have contacted as defense witnesses and what evidence those witnesses would have provided that would have assisted in Hopkins's defense.   Therefore, this allegation is conclusory, and we will not address it.   See Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky.1993) (applying RCr 11.42(2) requirement that the motion “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.   Failure to comply with this section shall warrant a summary dismissal of the motion' ”).   Consequently, the circuit court did not err in denying relief based upon this claim.

C. FAILURE TO INVESTIGATE

Hopkins next asserts that he received the ineffective assistance of trial counsel when counsel failed to investigate the case.   Specifically, Hopkins contends in his appellate brief that “[c]ounsel did not investigate the case or he would have given [Hopkins] the direct facts that he would not receive a life sentence.”   Hopkins does not explain this allegation any further or provide any factual allegations to support it.   Therefore, it is a conclusory allegation;  we will not consider it on appeal.   See Stanford, 854 S.W.2d at 748.

D. FAILURE TO HOLD EVIDENTIARY HEARING

Finally, Hopkins contends that the circuit court erred in failing to hold an evidentiary hearing concerning his RCr 11.42 claims.   Pursuant to RCr 11.42(5), if there is “a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing․”  Because there were no material issues of fact that could not be determined on the face of the record, the circuit court did not err when it denied Hopkins's motion for an evidentiary hearing.

Accordingly, the order of the Anderson Circuit Court is affirmed.

ALL CONCUR.

MOORE, JUDGE:   Double