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Court of Appeals of Kentucky.


NO. 2010–CA–000198–MR

    Decided: April 13, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  CLAYTON, JUDGE;  LAMBERT, Double SENIOR JUDGE.BRIEF FOR APPELLANT:  M. Brooke Buchanan Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky



Mark E. Brown appeals from the denial, without a hearing of his motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 alleging ineffective assistance of counsel.   After our review, we affirm the judgment and sentence of the Fayette Circuit Court.

Brown was tried before a jury which found him guilty of criminal mischief in the first degree, criminal attempt to commit theft by unlawful taking with a value under $300 and for being a persistent felony offender in the second degree.   On February 28, 2006, the trial court ordered him to serve 10 years in prison.   Brown appealed from that judgment to the Kentucky Court of Appeals and we affirmed.   On July 21, 2008, Brown filed a pro se motion seeking relief pursuant to RCr 11.42.

Brown alleged that assistance of counsel was constitutionally ineffective when trial counsel failed to research or offer any evidence regarding the cost to repair the vehicle.   Counsel was appointed for the RCr 11.42 motion and she ultimately filed notice she would not be supplementing Brown's original motion.   Without an evidentiary hearing, the trial court entered its order denying the motion on September 8, 2009.   Brown then filed this appeal.

On the underlying charge, Brown was arrested after being discovered sticking his arm through the top of a 1995 Ford Mustang convertible in downtown Lexington, Kentucky.   The owner of the vehicle testified she had her cousin fix the convertible top and the total repair cost was $1,255.   Of that, $750 was for materials and the remaining cost was for labor.

The owner of a repair shop in Lexington testified that he had viewed photographs of the damaged vehicle and provided an estimate of $1,141.60 including tax for the repair.   He further testified that he provided this estimate on March 1, 2005 and that it was not an exact science and much of the price depended on labor charges.   His wife, who also worked for the repair shop had provided an estimate of $1,100.00 in October, 2004.   The testimony indicated that there was a variance in the cost of parts over time that accounted for the difference in the two estimates.

The service director for a local Ford dealer then testified that he provided an estimate to repair the damage to the convertible top that totaled $1,872.06.   The owner's cousin who worked at a repair shop testified that he repaired the top after purchasing used materials and charged his cousin $1,220.

The defense did not call any witnesses as it related to the cost of the damage done to the vehicle.   It was counsel's failure to seek out witnesses who could present a lower repair amount that Brown argues is ineffective assistance of counsel.   We disagree.

When reviewing a claim of ineffective assistance of counsel, we are guided by the two prong test from Strickland v. Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

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.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.


In this proceeding, Brown has the burden of meeting this two-part test and overcoming the strong presumption that counsel's assistance was constitutionally sufficient.  Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky.1998).   He has the “burden to establish convincingly that he was deprived of some fundamental right which would justify the extraordinary relief” requested.  Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001).

To show any deficiency by counsel resulted in actual prejudice, Brown must present information that there was a reasonable probability the outcome would have been different.  Bowling v. Commonwealth, 80 S.W.3d 405, 411 (Ky.2002).   He failed to meet that burden.

Witness selection is normally left to counsel's judgment and we will not second-guess those decisions.  Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky.2000).   On review, we must be highly deferential to counsel's decisions and avoid second guessing or hindsight.  Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001).

A criminal defendant is not guaranteed errorless counsel but counsel likely to render reasonably effective assistance.  Sanborn v. Commonwealth, 975 S.W.2d 905, 911 (Ky.1998).   To prevail in a post-conviction proceeding, he further must show that counsel's performance “caused the defendant to lose what he otherwise would probably have won.”  United States v. Morrow, 977 F.2d 222,229 (6th Cir.1992).   Brown has not met his burden.   Brown has nothing to suggest that he would have been convicted of a lesser charger based on a lower repair value had counsel produced such a witness.

When a trial judge is able to resolve the questions from the face of the record or determine that even if the allegations are true, they are insufficient to invalidate the convictions, a hearing is not required.   Wilson v. Commonwealth, 975 S.W.2d 901 (Ky.1998).   Brown did not raise any issue where a material fact was in question.   A hearing is not required when the facts available in the record are sufficient to make a determination and the allegations, even if true, would not meet the burden of prejudice requiring a new trial.  Brewster v. Commonwealth, 723 S.W.2d 863 (Ky.App.1986).   Here, even if Brown's attorney failed to investigate and produce a witness who could testify to a significantly lower repair cost, that does not rise to the level of constitutionally ineffective assistance of counsel given the substantial nature of the evidence to the contrary provided by the Commonwealth.

We find no error and affirm the judgment of the Fayette Circuit Court.



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