TIMOTHY M. YARBROUGH v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 17, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001990-MR
TIMOTHY M. YARBROUGH
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID T. JERNIGAN, JUDGE
ACTION NO. 97-CR-00084
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
Timothy M. Yarbrough (Yarbrough) appeals from
an order of the Muhlenberg Circuit Court entered July 27, 1998,
denying his RCR 11.42 motion.
We affirm.
On September 18, 1997, a Muhlenberg Circuit Court Grand
Jury indicted Yarbrough on one (1) count of driving a motor
vehicle while under the influence of alcohol, fourth offense, and
one (1) count of operating a motor vehicle while his license was
revoked for violation of KRS 189A.010.
the two counts were severed.
Upon Yarbrough’s motion,
On November 21, 1997, Yarbrough was
tried before a jury, which found him guilty of operating a motor
vehicle while under the influence of alcohol, fourth offense.
The jury fixed his sentence at five (5) years imprisonment.
On July 8, 1998, Yarbrough filed an RCR 11.42 motion to
vacate judgment alleging ineffective assistance of counsel.
In
addition, Yarbrough filed a motion for appointment of counsel and
a motion for an evidentiary hearing.
On July 27, 1998, the trial
court denied Yarbrough’s motion to vacate judgment and motion for
an evidentiary hearing.
This appeal followed.
Yarbrough raises the following three issues on appeal:
1.
Ineffective assistance of counsel
for failure to attack the validity
of former DUI convictions;
2.
Abuse of discretion by the trial
court for failure to grant an
evidentiary hearing; and
3.
Use of former DUI guilty plea
entered without representation by
counsel to enhance his fourth DUI
conviction.
Yarbrough claims that his trial counsel was ineffective
for failing to challenge the validity of his third DUI
conviction.
Specifically, Yarbrough argues that his trial
counsel was ineffective for not recognizing that his signed
waiver of counsel was invalid on its face.
Further, Yarbrough
alleges that he was under the influence of prescribed medication
that prevented him from knowingly, voluntarily and intelligently
pleading guilty to DUI, third offense.
The Sixth Amendment right to counsel exists in order to
protect the fundamental right to a fair trial, thus the focus is
on whether the proceeding at issue was fundamentally unfair or
unreliable, Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct.
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838, 844, 12 L.Ed.2d 180 (1993).
In order to establish
ineffective assistance of counsel, a person must satisfy a twopart test showing 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).
Judicial scrutiny of counsel’s performance
must necessarily be highly deferential in order not to interfere
with the constitutionally protected independence of counsel.
Strickland, 460 U.S. at 689, 104 S.Ct. at 2065.
The burden is on the movant to overcome the strong
presumption that counsel’s assistance was constitutionally
sufficient.
Jordan v. Commonwealth, Ky., 445 S.W.2d 878 (1969);
McKinney v. Commonwealth, Ky., 445 S.W.2d 874 (1969).
However,
on appeal, the sole issue is whether the trial court acted
erroneously in finding that appellant received effective
assistance of counsel.
Ivey v. Commonwealth, Ky. App., 506
(1983); Lynch v. Commonwealth, Ky. App., 610 S.W.2d 902 (1980).
In assessing the performance prong, counsel’s action or
failure to act is reviewed based on an objective standard of
reasonableness.
Strickland, 466 U.S. at 688, 104 S.Ct. at 2065;
Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 878-79 (1992), cert.
denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993).
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.
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A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Strickland, 466 U.S. at 694, 104
S.Ct. at 2068.
We do not reach the prejudice prong of the Strickland
test because we believe that Yarbrough’s trial counsel acted
reasonably in representing Yarbrough during his fourth DUI
proceeding.
The trial judge stated succinctly, and we adopt that
portion of the July 27, 1998, order, which reads:
A trial counsel is not ineffective if he or
she fails to attack PFO priors which were
valid on their face. Adkins v. Commonwealth,
Ky. App., 721 S.W.2d 719 (1986). Yarbrough
argues that the law concerning DUI priors
should be no different than that relating to
PFO priors. That being the case, the Court
concludes that there is no reason for
Yarbrough’s trial attorney to contest the
third conviction. The waiver of rights and
plea of guilty attached to Yarbrough’s motion
demonstrates that Yarbrough’s third
conviction is valid on its face. Yarbrough
signed the documents acknowledging that [he]
understood that he had a right to an
attorney, but chose to waive that right and
plead guilty. Yarbrough also acknowledged in
writing that he was not under the influence
of any substances that affected his thinking.
In his motion, Yarbrough attached a discharge
summary dated August 13, 1996, attached as
Exhibit “A”, to support his argument as to
being under the influence of substances.
However, there is nothing in the Exhibit to
conclude that at the time of the third
conviction, being September 24, 1996,
Yarbrough was, or should be [sic], under the
influence of medication
Moreover, the Kentucky Supreme Court in McGuire v.
Commonwealth, Ky., 885 S.W.2d 931 (1994), relying on Custis v.
United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517
(1994), held that “[t]he PFO enhancement statute is similarly
lacking in ‘any indication’ the General Assembly intended to
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permit collateral attacks on prior convictions used for sentence
enhancement purposes.”
Id. at 937.
The Kentucky Supreme Court
further stated that “[t]he U.S. Supreme Court decision in Custis
applies to proof of PFO status in the present case.
KRS
532.080(2) and (3) require proof of the fact of ‘previous felony
convictions’ and not their underlying validity.”
S.W.2d at 937.
McGuire, 885
(Emphasis added).
The McGuire Court continued by stating that “Kentucky
trial courts are no longer required to conduct a preliminary
hearing into the constitutional underpinnings of a judgment of
conviction offered to prove PFO status unless the defendant
claims ‘a complete denial of counsel in the prior proceeding.’”
Id. at 937.
In this case, Yarbrough was not denied counsel,
rather, he waived his right to counsel.
Yarbrough can challenge his 1996 DUI, third offense,
guilty plea through a RCR 11.42 proceeding only if he can show
that he was denied counsel.
If the conviction is set aside then
Yarbrough “may...apply for reopening of any...sentence [thus]
enhanced.”
McGuire, 885 S.W.2d at 937 n. 1 (quoting Custis, 511
U.S. at 485, 114 S.Ct. at 1739).
Yarbrough cannot collaterally
attack his fourth DUI conviction by challenging the validity of
the underlying offenses.
Therefore, the trial court properly
denied appellant’s claim that the prior conviction should have
been excluded as not obtained knowingly and voluntarily.
Yarbrough next contends that he was entitled to an
evidentiary hearing on his RCR 11.42 motion.
Yarbrough’s
argument mirrors the argument made in Glass v. Commonwealth, Ky.
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App., 474 S.W.2d 400 (1972).
In Glass, the defendant, Tommy
Glass, was indicted for the theft of one calf and five counts of
knowingly receiving stolen livestock.
Glass entered a plea of
guilty through his employed counsel to two of the counts of
receiving stolen property.
Thereafter, Glass filed an RCR 11.42
motion to vacate the judgment and demanded an evidentiary
hearing.
The trial court denied the RCR 11.42 motion without
granting Glass an evidentiary hearing.
On appeal, we stated:
The record shows that before the plea was
accepted Glass answered affirmatively the
following questions: ‘(a) whether this was
his personal decision, (b) whether such
desired plea on his part was voluntary, (c)
whether he felt the had been properly and
efficiently represented by counsel, and (d)
whether he knew he had a right to a trial by
jury with assistance of counsel.’ Glass’
claim that his guilty plea was involuntary
and not properly accepted by the court is
refuted by the record.
We stated in Messer v. Com., Ky., 454 S.W.2d
694 (1970), that it is’* * * unnecessary for
the court to order a hearing if the material
issues of fact can fairly be determined on
the face of the record.’ Here they could be.
Glass was not entitled to an evidentiary
hearing.
Id. at 401.
The same reasoning applies to the case sub judice.
Yarbrough argues that he was entitled to an evidentiary hearing
in order to develop material and pertinent facts.
Specifically,
Yarbrough desired to subpoena medical records to show
conclusively what medications he was taking at the time he signed
the waiver for the third DUI offense.
However, the record
clearly shows that: (1) Yarbrough acknowledged in writing that he
had a right to an attorney but chose to waive that right and
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plead guilty; and (2) Yarbrough acknowledged in writing that he
was not under the influence of any substances that affected his
thinking at the time he signed the waiver.
The trial court felt
that the material facts could be determined from the record and
ruled on Yarbrough’s motion without an evidentiary hearing.
We
do not believe the trial court abused its discretion in this
regard.
Finally, Yarbrough argues that his third DUI conviction
cannot be used to enhance the sentence of his fourth DUI
conviction because he was convicted of the third DUI offense
without representation of counsel.
Yarbrough relies on Burgett
v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967),
Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383
(1978), and Custis v. United States, 511 U.S. 485, 114 S.Ct.
1732, 128 L.Ed.2d 517 (1994), each of which voided a conviction
when an accused was not represented by counsel and had not
competently and intelligently waived his right to counsel.
Yarbrough’s reliance on these cases is mistaken.
The record
shows that he executed a valid waiver of his right to counsel and
pled guilty to the third DUI offense.
Therefore, this argument
is meritless.
We find no abuse of discretion by the trial court in
its order dated July 27, 1998.
For the foregoing reasons, the
decision of the trial court is affirmed.
DYCHE, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
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Timothy M. Yarbrough
Central City, KY
A. B. Chandler, III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, KY
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