CECIL ALLEN BUFORD v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 8, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
97-CA-1299-MR
CECIL ALLEN BUFORD
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
ACTION NO. 95-CR-244
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * * * *
BEFORE:
EMBERTON, HUDDLESTON, AND JOHNSON, JUDGES.
JOHNSON, JUDGE.
Cecil Allen Buford (Buford) appeals pro se from
a May 14, 1997 order of the Fayette Circuit Court denying his
motion for relief from a criminal judgment.
Buford brought his
motion pursuant to Kentucky Rules of Criminal Procedure (RCr)
11.42.
counsel.
He claims that he was denied effective assistance of
We affirm.
On June 15, 1995, a jury convicted Buford of two counts
of trafficking in a simulated controlled substance (Kentucky
Revised Statutes (KRS) 218A.350) and one count of trafficking in
a controlled substance in the first degree (KRS 218A.1412).
Buford then entered a plea of guilty to being a persistent felon
in the first degree (PFO I).
Buford was sentenced to prison for
a term of ten years.
On three separate occasions in 1994 (November 23, 28,
and 29), Buford sold a substance to undercover officers of the
Kentucky State Police.
video tape.
These three transactions were recorded on
The substance purchased on November 23 tested
positive for cocaine.
The substances purchased on November 28
and 29 were determined to be a waxy substance consisting mostly
of paraffin.
Buford testified at trial that he always sold a
simulated substance called "flick" and that he never sold
cocaine.
During the first encounter he did not have enough
"flick" to sell, so he obtained some from a neighbor.
It was his
theory of the case that the cocaine was inadvertently obtained
from his neighbor.
His counsel argued that Buford did not have
the requisite intent to sell cocaine; thus, he should have been
found guilty of only the misdemeanor charges.
On direct appeal, counsel argued that Buford was
entitled to a directed verdict because the Commonwealth did not
prove that he knowingly sold cocaine.
He also argued that his
sentence for two counts of trafficking in a simulated controlled
substance in violation of KRS 218A.350 should have been vacated
on the ground that the statute was unconstitutional.
Both
arguments were rejected by this Court in Buford v. Commonwealth,
Ky.App., 942 S.W.2d 909 (1997).
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On March 7, 1997, Buford filed a pro se motion to
vacate his sentence pursuant to RCr 11.42.
On May 14, 1997, the
trial court denied the motion without a hearing.
This appeal
followed.
RCr 11.42 provides persons under sentence with a
procedure to raise collateral attacks on the judgments entered
against them.
When, as here, the circuit court has based its
decision exclusively on the record, we review the decision anew,
asking whether the record refutes Buford’s factual allegations
and whether his unrefuted allegations, if true, would invalidate
his conviction.
See Hopewell v. Commonwealth, Ky. App., 687
S.W.2d 153 (1985).
To be entitled to relief from the judgment on
the ground that his counsel was ineffective at trial, Buford must
show both that counsel erred, in the sense of having abused his
professional discretion, and that it is reasonably likely that
the error produced an unfavorable result.
Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Accord, Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985),
cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724
(1986).
First, Buford argues that his counsel was ineffective
for failing to request public funds to provide for an independent
lab test of the alleged cocaine.
We disagree.
The crux of Buford’s defense was that the cocaine
obtained from his neighbor was obtained unknowingly and that he
intended to sell only "flick."
Under this defense theory,
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Buford's counsel concentrated on Buford’s contention that he
believed that the cocaine received from his neighbor was "flick."
This, coupled with the fact that there was no evidence that the
state police lab’s procedures were suspect, supports Buford’s
counsel’s decision in not requesting testing by an independent
lab.
Defense counsel’s tactics were appropriate trial strategy
and did not amount to ineffective assistance of counsel.
Robbins
v. Commonwealth, Ky. App., 719 S.W.2d 742, 743 (1986).
Second, Buford argues that his counsel was ineffective
for not calling his girlfriend as a witness.
Buford alleges that
his girlfriend would have testified that she saw him prepare the
"flick" and that there was no cocaine involved.
While this
testimony would have corroborated Buford’s testimony, the witness
was not crucial to his defense.
Whether to add cumulative
evidence in a trial is best left to trial counsel rather than
second guessing by this Court.
Id.
Third, Buford contends that his counsel improperly
advised him to plead guilty to the PFO I charge, because his
counsel failed to determine the validity of his underlying
convictions.
We disagree.
In Eggerson v. Commonwealth, Ky. App., 656 S.W.2d 744,
746 (1983), this Court stated that "we do not believe that
counsel's failure to object to a guilty plea conviction which on
its face was perfectly valid, and to which there is no indication
that he was apprised by appellant that the guilty plea was
involuntary or otherwise improper, renders his assistance less
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than reasonable."
Thus, to attack defense counsel’s failure to
investigate an underlying conviction to a PFO charge, Buford must
have advised his counsel during the proceedings below that his
earlier plea was somehow invalid.
Buford failed to do so.
There
is nothing in the record to indicate that defense counsel was
aware of or was alerted to a reason to believe that an underlying
felony conviction to the PFO charge was improper.
Buford’s
contention is therefore without merit.
Lastly, Buford argues that the trial court erred in
dismissing his motion without an evidentiary hearing.
We
disagree.
A hearing is required only if the motion “‘raises a
material issue of fact that cannot be determined on the face of
the record.’”
Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743
(1993) quoting RCr 11.42(5).
As Buford’s allegations were
properly disposed of based on the record, a hearing was not
necessary.
The order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Cecil Allen Buford
Central City, KY
Hon. A. B. Chandler, III
Attorney General
Hon. Courtney A. Jones
Assistant Attorney General
Frankfort, KY
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