OTTO FRANK WILHITE APPEALS 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NOT TO BE PUBLISHED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.
NO.
1998-CA-001316-MR
and
1997-CA-002362-MR
OTTO FRANK WILHITE
APPELLANT
APPEALS FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
ACTION NO. 94-CR-00480
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and McANULTY, Judges.
COMBS, JUDGE:
Otto Frank Wilhite appeals from orders of the
Fayette Circuit Court denying his motions for post-conviction
relief.
Finding no error, we affirm.
In June 1994, the Fayette County Grand Jury indicted
Wilhite on twelve counts of criminal possession of a forged
instrument; one count of unauthorized used of a credit card; and
one count of being a persistent felony offender in the first
degree.
Wilhite was arraigned on the charges and was represented
by counsel.
On October 2, 1995, Wilhite entered a plea of guilty
(pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct.
160, 27 L.Ed.2d 162 (1970)), to one count of criminal possession
of a forged instrument.
Under the plea agreement, the
Commonwealth recommended a sentence of one-year imprisonment to
be probated for three years.
The trial court sentenced Wilhite
to five years' imprisonment to be probated for three years.
Following a hearing conducted on September 3, 1996, the
trial court concluded that Wilhite had violated the terms of his
probation.
As a result, his probation was revoked.
On September
5, 1996, the court sentenced Wilhite to a maximum term of oneyear imprisonment.
On September 23, 1996, the trial court
amended the sentence to a maximum term of five-years'
imprisonment.
Wilhite did not appeal.
On October 10, 1996, Wilhite filed a RCr 11.42 motion
alleging ineffective assistance of counsel.
He also requested
the appointment of counsel and an evidentiary hearing on the
motion.
On September 8, 1997, the trial court denied the motion
without a hearing.
Days later, Wilhite filed his notice of
appeal.1
On April 1, 1998, Wilhite filed a motion to alter,
amend or vacate judgment pursuant to CR 59.05.
In his motion,
Wilhite alleged that the trial court erred by amending the
judgment of conviction eighteen (18) days after entry of the
1
On September 16, 1997, this court permitted the withdrawal
of Wilhite's appointed counsel. On January 6, 1998, this court
authorized the withdrawal of the Department of Public Advocacy.
Wilhite was permitted to proceed pro se.
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final judgment.
On April 8, 1998, the trial court denied this
motion.
On April 17, 1998, Wilhite filed another motion.
This
motion was designated as having been filed pursuant to KRS
419.020, RCr 11.42, and CR 60.02(a).
In this motion, Wilhite
admitted that his earlier CR 59.05 motion had been filed in
error.
The appellant maintained that the relief he sought was
instead available under KRS 419.020, RCr 11.42, and CR 60.02(a).
On April 28, 1998, the trial court denied this motion.
On May 5, 1998, Wilhite filed a motion requesting the
trial court to enter findings of fact with respect to the denial
of the motion.
On May 18, 1998, the trial court entered its
order explaining that the latest motion had been denied on
several grounds.
The trial court determined that relief pursuant
to the habeas corpus provisions (KRS 419.020) was unavailable in
this case, that the motion filed pursuant to RCr 11.42 was barred
as successive, and that the provisions of CR 60.02(a) can be
invoked only within one year of the judgment.
notice of appeal followed.2
Wilhite's second
For convenience, the two appeals
have been considered together.
RCr 11.42 allows persons in custody under sentence to
raise a collateral attack on a criminal judgment entered against
them.
RCr 11.42(5) authorizes the trial judge to dismiss the
motion without a hearing unless there is a material issue of fact
that cannot be determined on the face of the record.
2
See also
On August 6, 1998, the Department of Public Advocacy was
again permitted to withdraw as Wilhite's counsel. Wilhite
proceeds pro se.
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Wilson v. Commonwealth, Ky., 975 S.W.2d 901, 904 (1998).
Our
review is limited to "whether the motion on its face states
grounds that are not conclusively refuted by the record and
which, it true, would invalidate the conviction."
Lewis v.
Commonwealth, Ky., 411 S.W.2d 321, 322 (1967); Sanborn v.
Commonwealth, Ky., 976 S.W.2d 905, 904 (1998).
Wilhite argues that his guilty plea is invalid because
he received ineffective assistance of counsel.
In essence, he
contends that counsel was ineffective for recommending that he
plead guilty.
In order to establish ineffective assistance of
counsel, a person must satisfy a two-part test:
(1) that
counsel's performance was deficient and (2) that the deficiency
resulted in actual prejudice affecting the outcome of the
proceedings.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
When an appellant challenges a
guilty plea based upon ineffective counsel, he must satisfy both
components of the two-part test.
Not only must he demonstrate
that counsel made serious errors outside the wide range of
reasonably professional competent assistance (McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1976));
but he must also show that the deficient performance so seriously
prejudiced the outcome of the plea process that — but for the
errors of counsel — there is a reasonable probability that the
defendant would not have pled guilty but would have insisted on
going to trial.
Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 80
-4-
L.Ed.2d 203 (1985); accord Sparks v. Commonwealth, Ky. App., 721
S.W.2d 726 (1986).
A review of the record indicates that Wilhite's
complaint is without merit.
Wilhite had been charged in a
fourteen-count indictment with thirteen Class D felonies — as
well as with being a persistent felony offender in the first
degree.
Had he insisted upon trial, Wilhite faced a substantial
prison term.
Instead, counsel negotiated a favorable plea
agreement and also succeeded in obtaining probation for Wilhite
on the remaining charge.3
During the plea proceedings, the trial judge carefully
explained to Wilhite that he was waiving important constitutional
rights.
Wilhite specifically acknowledged that were he to go to
trial, the Commonwealth's evidence against him would be
sufficient to convict him of the charges.
plea was "knowing and voluntary."
He declared that this
Wilhite's attorney certified
to the court that Wilhite's plea was being entered voluntarily
and with understanding.
An attorney, acting in good faith and in the exercise
of reasonable judgment, may properly recommend that his client
plead guilty.
(1970).
Hendrickson v. Commonwealth, Ky., 450 S.W.2d 234
In these circumstances, counsel was not ineffective by
advising Wilhite to plead guilty.
3
There was neither error by
Wilhite explains in his brief that he considered a plea
because "it was no secret that [he] had a long criminal history
in and around Fayette County. . . ." Moreover, he had been
offered a job in Detroit and "was anxious to have the matter out
of the way so that he might be allowed to accept the position
which had been offered."
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counsel nor prejudice to Wilhite.
Consequently, the trial court
did not err by denying the RCr 11.42 motion.
Next, Wilhite argues that the trial court erred by
denying his separate motions filed pursuant to CR 59.05 and
pursuant to KRS 419.020, RCr 11.42, and CR 60.02(a).
We
disagree.
As Wilhite himself noted in his latest motion, the
provisions of CR 59.05 can afford him no relief in this matter.
CR 59.05 requires that a motion to alter or amend a judgment be
served not later than 10 days following entry of the final
judgment.
And as the trial court noted, neither KRS 419.020 nor
a successive RCr 11.42 motion can provide relief at this point.
Kentucky's habeas corpus provisions are inapplicable where the
procedure provided in RCr 11.42 is adequate to address the
legality of inmate's detention.
154 (1964).
Ayers v. Davis, Ky., 377 S.W.2d
RCr 11.42(3).
Successive RCr 11.42 motions are not authorized.
Finally, motions pursuant to CR 60.02(a) must be
made not more than one year after the judgment was entered.
Based upon the foregoing, we affirm the orders of the
Fayette Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Otto F. Wilhite
LaGrange, KY
Albert B. Chandler, III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, KY
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