HULEN JUNIOR WARRINER v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 9, 1999; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002884-MR
HULEN JUNIOR WARRINER
APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 93-CR-013
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, KNOPF, AND MCANULTY, JUDGES.
KNOPF, JUDGE.
Hulen Junior Warriner (Warriner) appeals, pro se,
from an order of the Russell Circuit Court which denied his
motion to vacate, set aside or correct sentence pursuant to RCr
11.42.
We affirm.
In April 1993, a Russell County Grand Jury indicted
Warriner for murder, KRS 507.020.
Before trial, the circuit
court granted a motion by Warriner’s trial counsel to commit him
to the Kentucky Correctional Psychiatric Center (KCPC) in order
to determine if Warriner was competent to stand trial.
Based on
the evaluation conducted at KCPC and evidence presented at a
hearing held on October 21, 1993, the circuit court found
Warriner competent to stand trial.
On March 21, 1994, the
circuit court accepted Warriner’s motion to enter a plea of
guilty on the amended charge of first-degree manslaughter, KRS
507.030, and sentenced him to imprisonment for eighteen (18)
years.
On September 24, 1997, Warriner filed a motion for
appointment of counsel, a motion for an evidentiary hearing, a
motion for findings of fact and conclusions of law pursuant to CR
52.01, and an RCr 11.42 motion.
On October 30, 1997, the circuit
court denied Warriner’s RCr 11.42 motion without a hearing.
This
appeal followed.
When the trial court denies a motion for an
evidentiary hearing on the merits of allegations raised in a
motion pursuant to RCr 11.42, 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."
(1967).
Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322
Where the movant's allegations are refuted on the face
of the record as a whole, no evidentiary hearing or appointment
of counsel is required.
Hopewell v. Commonwealth, Ky. App., 687
S.W.2d 153 (1985).
In Warriner’s RCr 11.42 motion, he alleges that: (1)
the circuit court failed to conduct a competency hearing; (2) he
was denied effective assistance of counsel guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution
and Section Eleven of the Kentucky Constitution; (3) the
imposition of fifty percent (50%) of his sentence was arbitrary,
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and; (4) he was not afforded the opportunity to controvert the
contents of his Presentence Investigation (PSI) report.
The circuit court erroneously found that Warriner had
filed his RCr 11.42 motion outside the three (3) year time period
required by RCr 11.42(10).
This finding was based on the time
period that ran between the date of Warriner’s judgment of
conviction, March 21, 1994, and the date he filed his RCr 11.42
motion, September 24, 1997.
RCr 11.42(10) states: "[i]f the
judgment becomes final before the effective date of this rule,
the time for filing the motion shall commence upon the effective
date of this rule."
Because Warriner’s judgment of conviction
became final before the effective date of the rule, which was
October 1, 1994, Warriner had until October 1, 1997 to file his
RCr 11.42 motion.
Warriner’s RCr 11.42 motion was timely filed
on September 24, 1997.
While the circuit court erred in its
interpretation of RCr 11.42(10), it did address the merits of
Warriner’s motion.
Warriner alleges that the circuit court failed to
conduct a competency hearing.
The record, however, establishes
that the circuit court did conduct a competency hearing on
October 21, 1993.
Warriner does not contest the evidence
presented at the hearing or the circuit court’s judgment; his
challenge is separately based solely on his mistaken belief that
a hearing did not take place.
Second, Warriner claims that he was denied effective
assistance of counsel because his trial counsel failed to
investigate the defenses of insanity and extreme emotional
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disturbance; failed to hire or present any expert witnesses
during the penalty phase; and failed to investigate the law,
facts, and circumstances of the case.
In order to succeed on a
claim of ineffective assistance of counsel, Warriner must show:
(1) that counsel made errors so serious that counsel's
performance fell outside the wide range of
professionally competent assistance as the counsel was
not performing as counsel guaranteed by the Sixth
Amendment and (2) that the deficient performance
prejudiced the defense by so seriously affecting the
process that there is a reasonable probability that the
defendant would not have pled guilty, and the outcome
would have been different.
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51, 55 (1990);
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984).
Warriner has failed to demonstrate that his
trial counsel’s performance was deficient in any manner.
The record shows that trial counsel moved the court to
have at least one psychologist or psychiatrist examine Warriner.
Pursuant to KRS 504.070, Warriner’s trial counsel also gave
notice that he intended to introduce evidence concerning mental
illness and/or mental defect.
Warriner’s claim that trial
counsel failed to investigate the defenses of insanity and
extreme emotional disturbance is rebutted by the record.
Next, Warriner argues that his trial counsel failed to
call his doctor as a witness during the penalty phase to offer
mitigating evidence.
Failing to produce a witness for the
defendant is not error absent an allegation that the testimony of
the witness would have compelled a significantly more favorable
result.
Robbins v. Commonwealth, Ky. App., 719 S.W.2d 742, 743
(1986).
Warriner does not specify who his doctor was or what
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mitigating evidence he or she would have presented.
Warriner’s
unsupported allegation does not rise to the level of ineffective
assistance of counsel nor does it meet the standard of
specificity established in RCr 11.42(2).
Warriner next claims that his trial counsel failed to
investigate the law, facts, and circumstances of his case.
As
just noted, RCr 11.42(2) requires a movant to state specifically
the grounds for challenging a conviction and the specific facts
in support of such grounds.
Mere allegations without specific
demonstrations of prejudice are subject to summary dismissal.
Lucas v. Commonwealth, Ky., 465 S.W.2d 267 (1971).
Warriner has
failed to allege any specific facts to support his bare
allegation.
Third, Warriner argues that fifty percent (50%) of his
sentence was arbitrary because he was not sentenced in accordance
with KRS 532.025(2) and (3).
The sentencing requirements set
forth in KRS 532.025 are only applicable when the death penalty
is a sentencing option.
Thus, they were not applicable to
Warriner’s conviction of first-degree manslaughter.
Finally, Warriner alleges that he was denied the
opportunity to controvert the contents of the PSI report.
Warriner does not challenge the contents of the PSI report, but
challenges the fact that he did not receive a copy of the PSI
report prior to sentencing.
This argument fails because Warriner
was not entitled to receive an actual copy of the PSI report.
See
Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987).
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The
record establishes that Warriner had the opportunity to
controvert the PSI report but he chose not to do so.
For the reasons stated above, the order of the Russell
Circuit Court denying Warriner’s RCr 11.42 motion without an
evidentiary hearing is hereby affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hulen Junior Warriner
Central City, Kentucky
Albert B. Chandler III
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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