NATHANIEL TAYLOR BARTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 25, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001511-MR
NATHANIEL TAYLOR BARTON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN SHAKE, JUDGE
ACTION NO. 96-CR-00475
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Nathaniel T. Barton (Barton) appeals from an
order of the Jefferson Circuit Court entered May 27, 1998,
denying his RCr 11.42 motion to vacate judgment.
We affirm.
On February 27, 1996, Barton was indicted by a
Jefferson County Grand Jury on the following charges:
1. Trafficking in a controlled substance
within 1000 yards of a school while in the
possession of a firearm, subsequent offender;
2. Complicity to illegal possession of drug
paraphernalia while in the possession of a
firearm, subsequent offender;
3. Possession of a firearm by a convicted
felon; and
4. Persistent Felony Offender in the second
degree (PFO II).
On June 17, 1996, Barton’s co-defendant Angela Burcham (Burcham)
pled guilty to trafficking in marijuana under eight (8) ounces
and one count of possession of drug paraphernalia and agreed to
testify against Barton.
On July 29, 1996, Barton pled guilty to the trafficking
and paraphernalia charges in exchange for dismissal of firearms
enhancements of those charges, dismissal of the possession of a
firearm by a convicted felon charge and dismissal of the PFO II
charge.
That same day the trial court accepted Barton’s plea
after a colloquy on the record.
On September 13, 1996, the trial
court sentenced Barton to a nine (9) year prison term.
On March 17, 1998, Barton filed a motion to vacate his
sentence pursuant to RCr 11.42 alleging that his guilty plea was
coerced by his trial counsel’s ineffective assistance.
Originally, the trial court scheduled an evidentiary hearing on
the matter.
However, on June 9, 1998, the trial court vacated
the order scheduling the evidentiary hearing and issued an
opinion and order denying Barton’s motion.
This appeal followed.
Barton’s grounds for appeal in this case are two-fold.
First, Barton alleges that his trial counsel ineffectively
assisted him by failing to:
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1.
move to suppress his confession;
2. move to suppress evidence seized during
the arrest;
3. move the Commonwealth to identify its
informant;
4. secure copies of statements that he and
others made at the time of arrest; and
5. discuss with him inconsistencies in the
evidence and the possible admissibility
thereof.
Second, Barton alleges that his trial counsel’s lack of
exploration and discovery into the Commonwealth’s proof made it
impossible for him to intelligently and knowingly waive his
rights and enter into a guilty plea.
After thoroughly reviewing the record and evidence
before this Court, we adopt the well-reasoned opinion and order
of the trial court entered June 9, 1998, and incorporate by
reference a portion of said opinion as follows:
...
Petitioner makes a motion to vacate
judgment, pursuant to RCr 11.42. The burden
is upon the accused to establish convincingly
that he was deprived of some substantial
right which would justify the extraordinary
relief afforded by the post-conviction
proceeding provided in RCr 11.42.
Commonwealth v. Campbell, Ky., 415 S.W.2d 614
(1967). It is unnecessary for the Court to
order an evidentiary hearing, since the
material issues of fact can fairly be
determined on the face of the record.
Maggard v. Commonwealth, Ky., 394 S.W.2d 893,
894 (1965).
...
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In order to prove ineffective assistance
of counsel, the movant must meet a two-part
test.
He 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), citing, Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). The same standard
applies whether the conviction resulted from
trial or plea. Id. “In determining whether
the degree of skill exercised by the attorney
meets the proper standard of care, the
attorney’s performance is judged by the
degree of its departure from the quality of
conduct customarily provided by the legal
profession.” Id., citing, Beasley v. United
States, 491 F.2d 697 (6th Cir. 1974);
Henderson v. Commonwealth, Ky., 636 S.W.2d
648 (1982). Because even the “best criminal
defense attorneys would not defend a
particular client in the same way,” whatever
allegations are made are subject to the
“strong presumption that counsel’s conduct
falls within the wide range of reasonable
professional assistance.” Strickland v.
Washington, 466 U.S. 668, 689; 104 S.Ct.
2052, 2065, 80 L.Ed.2d 674, 694-95 (1984).
“Effective assistance of counsel does not
guarantee error-free representation nor does
it deny to counsel freedom of discretion in
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determining the means of presenting his
client’s case.” Ramsey v. Commonwealth, Ky.,
399 S.W.2d 475, 475 (1966).
There is nothing of an evidentiary nature
in the record which indicates that Petitioner
was provided ineffective assistance of
counsel. The record reveals that
Petitioner’s trial counsel exercised the
proper standard of care during his
representation. The petitioner has not shown
that, had his trial counsel conducted his
representation differently, the outcome would
have been more favorable for him. The
Petitioner’s contentions that this trial
counsel failed to challenge the admissibility
of the Petitioner’s statements, statements by
others in the apartment and the physical
evidence recovered; that his trial counsel
failed to secure the identity of the
confidential informant, as well as discovery
of the taped statements given by the
Petitioner and Mr. Heflin, are without merit.
Further, Petitioner’s contention that his
trial counsel failed to discuss possible
defenses with him and coerced him into
accepting the Commonwealth’s offer is without
merit.
The Petitioner responded affirmatively to
the Court’s inquiry as to whether he was
satisfied in all respects with his trial
counsel’s advice. He also signed before the
Court, a statement which asserted that he
believed his attorney had done all that
anyone could do to counsel and assist him,
and that there was nothing about the
proceedings in this case against him which he
did not fully understand. In Harris v.
Commonwealth, Ky. App., 688 S.W.2d 338
(1984), the court ruled that proof of a
defendant taking the above actions was enough
to preclude the argument that counsel was
unprepared to try the case, and deny the RCr
11.42 motion.
The Petitioner has failed to establish
convincingly that he was in any way
prejudiced by the way in which his trial
counsel represented him or that his trial
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counsel’s representation was deficient in any
way. In fact, the Petitioner received a
sentence much less severe than that to which
he could have been sentenced had this case
gone to trial. Accordingly, the Petitioner’s
assertion that he was provided ineffective
assistance of counsel is refuted by the
record on its face.
Petitioner also contends that his waiver
of rights was premised on the trial counsel’s
lack of exploration and discovery into the
Commonwealth’s proof, making it impossible to
intelligently and knowingly waive
information, and that by not being told the
exculpatory facts, he could not have made a
voluntary waiver.
A plea’s validity is determined from all
the facts and circumstances surrounding its
entry. Kotas v. Commonwealth, Ky., 565
S.W.2d 445, 447 (1978). The facts and
circumstances to be considered include “the
background, experience, and conduct of the
accused.” Johnson v. Zerbst, 304 U.S. 458,
464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938). The Court may also consider its
personal observations of the accused.
Littlefield v. Commonwealth, Ky. App., 554
S.W.2d 872, 874 (1977). Where the record
shows that the trial court conducted a
lengthy colloquy with the defendant,
ascertained that he had had a sufficient
amount of time to confer with his attorney,
and that he had no further questions to ask
his attorney, a defendant’s post-conviction
allegations that his counsel failed to
properly investigate his case and pursue
possible defenses is without merit. Centers
v. Commonwealth, Ky. App., 799 S.W.2d 51, 5455 (1990).
Viewing the record, it is clear that the
Petitioner’s guilty plea was voluntary and
intelligent. The records shows that the
Court conducted a thorough colloquy with the
Petitioner. The Court informed the
Petitioner about the rights he would be
giving up by pleading guilty, and inquired as
to whether the defendant was making his
guilty plea voluntarily, of which he answered
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in the affirmative. The Court also inquired
as whether the defendant understood and
recognized the effect of his guilty plea, to
which he also answered in the affirmative.
The defendant also stated that he understood
the penalties for the offences to which he
was pleading guilty, and that he was
satisfied with his trial counsel’s advice and
had no need to discuss it with him further.
The defendant also signed to the motion to
enter guilty plea, which declares that the
guilty plea is “freely, knowingly,
intelligently, and voluntarily made” and that
the defendant “understand[s] the nature of
this proceeding and all matters contained in
this document.” Accordingly the motion will
be denied.
In addition we note that Barton did not enter into a
guilty plea until Burcham, his co-defendant, entered into a
guilty plea and agreed to testify against him.
Further, by
pleading guilty Barton faced only five (5) to fifteen (15) years
instead of twenty (20) to life, a significant reduction in
possible sentencing.
These facts provide additional evidence
that Barton’s guilty plea was strategic in nature as opposed to
the result of ineffective assistance of counsel.
“Whether an attorney fulfills [the Strickland] test is
an issue of fact to be determined by the trial court, and its
findings will not be set aside unless they are clearly
erroneous.”
(1983).
Ivey v. Commonwealth, Ky., 655 S.W.2d at 506, 509
Having thoroughly reviewed the reasoning of the trial
court, we do not find its decision was erroneous.
For the foregoing reason, the decision of the trial
court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Fred R. Radolovich
Louisville, KY
A. B. Chandler, III
Attorney General
Dana M. Todd
Assistant Attorney General
Frankfort, KY
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