NED EUGENE DAVIS v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-003017-MR
NED EUGENE DAVIS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE WILLIAM E. MCANULTY, JR., JUDGE
ACTION NO. 95-CR-734
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE: Ned Eugene Davis (Davis) appeals from an order of
the Jefferson Circuit Court entered on October 25, 1996, that
denied him relief under his Kentucky Rules of Criminal Procedure
(RCr) 11.42 motion to vacate sentence.
We affirm.
Davis pled guilty on November 16, 1995, to trafficking in a
controlled substance in the first degree (cocaine) in violation
of Kentucky Revised Statutes (KRS) 218A.1412.
On December 21,
1995, the trial court entered a judgment sentencing Davis to
prison for a period of five years with the sentence to run
consecutively with another five-year sentence under indictment
no. 95-CR-1387.
On July 16, 1996, Davis, pro se, filed his RCr
11.42 motion claiming that he “either misunderstood the nature of
the crime with which he was charged or failed to realize that his
mere possession of cocaine was insufficient to establish his
guilt for trafficking in the first degree” (emphasis added).
On
September 25, 1996, appointed counsel filed a supplement to
Davis’ RCr 11.42 motion and added as a ground for relief that
Davis’ trial counsel rendered ineffective assistance by failing
to advise Davis “of the nature and elements of the offense that
he was pleading guilty to.”
By order entered on October 25, 1996, the trial court denied
Davis’ motion without an evidentiary hearing, and stated as
follows:
In the instant case, Mr. Davis appeared
at the plea proceeding with counsel. The
court engaged in a thorough discussion with
Mr. Davis regarding his guilty plea. The
Court ascertained that Mr. Davis had never
been treated for a mental illness and was not
under the influence of alcohol or drugs. Mr.
Davis told the Court that he had sufficient
time to confer privately with his attorney
and had no further questions for him.
Furthermore, Mr. Davis stated that he had
reviewed with his attorney and signed the
Commonwealth’s Offer on a Plea of Guilty and
the Motion to Enter a Guilty Plea. The Court
specifically asked Mr. Davis if he understood
the facts as alleged in the indictment and if
he engaged in said conduct. Mr. Davis
answered in the affirmative.
This Court finds that Mr. Davis’ plea
was knowingly, intelligently, and voluntarily
made. The Court notes that while giving a
narrative description of his conduct to the
Court, Mr. Davis admitted only to possessing
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5.28 grams of cocaine and a certain amount of
cash. However, Mr. Davis stated that he
understood the crime to which he pled guilty
and that he engaged in the conduct as alleged
in the indictment, possession of a controlled
substance with intent to sell. The Court
finds that these statements, when considered
in conjunction with the remainder of the
record of the plea proceeding, indicate that
Mr. Davis had a clear understanding of the
crime to which he pled and the import of his
plea.
This appeal followed.
Davis first claims that his sentence must be vacated
because his guilty plea to the trafficking charge was not
constitutionally entered.
A guilty plea must represent a
voluntary and intelligent choice among the alternative courses of
action open to a defendant.
North Carolina v. Alford, 400 U.S.
25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Centers v. Commonwealth,
Ky.App., 799 S.W.2d 51, 54 (1990); Sparks v. Commonwealth,
Ky.App., 721 S.W.2d 726 (1986).
The trial court must determine
that a defendant’s guilty plea is intelligent and voluntary, and
this determination must be put in the record.
Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969);
Centers, 799 S.W.2d at 54; Sparks, 721 S.W.2d at 727.
The
validity of a guilty plea must be determined from considering the
totality of the circumstances surrounding it.
Commonwealth v.
Crawford, Ky., 789 S.W.2d 779, 780 (1990); Centers, 799 S.W.2d at
54; Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978).
These circumstances include the accused’s demeanor, background
and experience, and whether the record reveals that the plea was
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voluntarily made.
Centers, 799 S.W.2d at 54; Sparks, 721 S.W.2d
at 727; Littlefield v. Commonwealth, Ky.App., 554 S.W.2d 872
(1977).
The trial court is in the best position to determine if
there was any reluctance, misunderstanding, involuntariness, or
incompetence to plead guilty.
Centers, 799 S.W.2d at 54, (citing
Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136
(1977)).
An evidentiary hearing is not required in a RCr 11.42
case where the issues presented can be fairly determined on the
face of the record.
Glass v. Commonwealth, Ky., 456 S.W.2d 686,
687 (1970).
Davis contends that his trial counsel and the trial
court both failed to advise him of the elements of trafficking in
cocaine.
He admits to possessing cocaine, but claims that he did
not possess the cocaine with the “intent to distribute,
manufacture, dispense, or sell” as required by KRS 218A.010(28).
Davis points to the colloquy in the record from his hearing on
his guilty plea wherein the trial judge asked him, “[W]ere you in
possession of the drugs?”, and he responded, “Yes”.
Davis claims
that while he admitted to possessing the cocaine, he was never
advised that the element of intent was required for him to be
guilty of trafficking.
In its order denying relief, the trial court noted that
Davis stated that he understood the crime to which he pled guilty
and that he had engaged in the conduct as alleged in the
indictment.
Thus, the trial court concluded that considering the
totality of the circumstances surrounding the plea, such as
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Davis’ demeanor, background and experience, as well as the record
of the proceeding, that Davis’ plea was knowingly, intelligently,
and voluntarily made.
In affirming the trial court, we conclude
that “[t]he trial court complied with its duty to review the
motion and to examine the record to determine whether the Court
originally acted incorrectly.”
Beecham v. Commonwealth, Ky., 657
S.W.2d 234, 236 (1983)(citing Lynch v. Commonwealth, Ky.App., 610
S.W.2d 902 (1980).
Since the record supports the trial court’s
denial of relief, we affirm as to this issue.
Davis’ second claim is that his trial counsel was
ineffective by failing to advise him of the element of intent.
In order to establish ineffective assistance of counsel, a person
must satisfy a two-part test showing both that counsel’s
performance was deficient and that the deficiency resulted in
actual prejudice affecting the outcome.
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).
In
determining counsel’s performance, the standard is whether the
alleged acts or omissions were outside the wide range of
prevailing professional norms based on an objective standard of
reasonableness.
Strickland, 466 U.S. at 688-89, 104 S.Ct. at
2064-65, 80 L.Ed.2d at 693-94; Wilson v. Commonwealth, Ky., 836
S.W.2d 872, 878 (1992), cert denied, 507 U.S. 1034, 113 S.Ct.
1857, 123 L.Ed.2d 479 (1993).
A court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of
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reasonable professional assistance.
supra.
Strickland, supra; Wilson,
The defendant bears the burden of identifying specific
acts or omissions alleged to constitute deficient performance.
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at
695.
In measuring prejudice, the relevant inquiry is whether
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.
A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland,
466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Since the trial court denied Davis an evidentiary
hearing, there is no finding as to his allegation that trial
counsel failed to advise him of the element of intent.
However,
the trial court did conclude from its review of the record that
Davis’ plea of guilty was entered knowingly, intelligently, and
voluntarily.
Of great importance in evaluating Davis’ claim is
the fact that a separate indictment of Davis as a persistent
felony offender in the first degree (PFO I) was dismissed as a
part of his plea agreement.
If Davis had been convicted of PFO
I, he faced a sentence of 10 to 20 years, with a minimum service
of 10 years. KRS 532.080.
Instead, Davis received the minimum
five-year sentence for the trafficking conviction.
Furthermore,
the sentence range for the class D felony of possession of
cocaine to which Davis readily admits was from one to five years.
Thus, the five-year sentence that Davis received was the lowest
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possible sentence for trafficking in cocaine and allowed him to
avoid the risk of a 20-year sentence for a PFO I conviction.
Furthermore, the record supports the Commonwealth’s
claim that it had a winnable case against Davis on the charge of
trafficking in cocaine.
While Davis places the emphasis in his
brief on his claim that he did not possess the cocaine with the
“intent to sell”, he ignores the fact that the Commonwealth was
only required to prove that he possessed the cocaine with the
“intent to manufacture, distribute, dispense or sell.”
218A.010(28).
KRS
Evidence to support this charge included, (1)
Davis possessed seven pieces of crack cocaine weighing a total
5.28 grams; (2) Davis, an indigent, possessed $371 in cash; (3)
Davis had a long criminal record including felony convictions;
and (4) When Davis was arrested at 11:00 p.m., the police were
investigating the report of a suspicious vehicle.
In light of the fact that Davis faced a sentence of one
to five years for the offense of possession to which he readily
admits his guilt, and in light of the fact that as a condition of
Davis’ plea of guilty a PFO I charge was dismissed, and in light
of the evidence against Davis for trafficking in cocaine, we
cannot conclude that trial counsel erred in advising him to
accept the plea agreement and a five-year sentence for
trafficking.
“It is well established that the advice by a lawyer
for a client to plead guilty is not an indication of any degree
of ineffective assistance.”
(citation omitted).
Beecham, 657 S.W.2d at 236-37
Under the circumstances of this case, even
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if trial counsel did fail to advise Davis of the element of
intent, we conclude that Davis has failed to meet the second
prong of the Strickland test, i.e., he has failed to show how the
deficiency resulted in actual prejudice to him.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ned E. Davis, pro se
Lexington, KY
Hon. A.B. Chandler, III
Atty. General
Hon. David A. Sexton
Asst. Atty. General
Frankfort, KY
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