DAVID LIENHART v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JUNE 8, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-001857-MR
DAVID LIENHART
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
INDICTMENT NO. 95-CR-00513
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge.
David Lienhart appeals from an order of the
Kenton Circuit Court that denied his motion to vacate judgment or
correct sentence brought pursuant to Kentucky Rule of Criminal
Procedure
(RCr)
11.42,
Procedure (CR) 60.02.
RCr
10.26
and
Kentucky
Rule
of
Civil
Lienhart sought a new sentencing procedure
based on alleged errors by his attorney in the sentencing phase of
his trial.
In September 1995, Lienhart assisted his brother, Steven,
in burglarizing a residence. When Steven was seen inside the house
by a neighbor, the brothers fled from the residence with two
witnesses
in
pursuit.
During
their
attempt
to
prevent
the
suspects’ escape, the two witnesses received physical injuries in
a struggle with Lienhart.
In November 1995, Lienhart was charged
in an indictment with burglary in the first degree.1
His brother
was also indicted for burglary in the first degree and being a
persistent
felony
offender
in
the
first
degree
(PFO
I),
and
eventually pled guilty to burglary in the second degree and being
a PFO I.
In December 1995, Lienhart was indicted for being a
persistent felony offender in the second degree (PFO II),2 and the
two
indictments
were
consolidated.
The
PFO
II
charge
was
predicated on an October 1989 conviction in Oldham County for
promoting contraband in the first degree for which he received a
one-year sentence.
On January 22, 1996, Lienhart’s attorney filed a motion
to
dismiss
the
PFO
II
count.
Counsel
contended
that
the
Commonwealth could not establish the PFO offense because the 1989
felony conviction did not statutorily qualify to support the charge
inasmuch as Lienhart had completed service of the one-year sentence
more than five years prior to commission of the underlying burglary
offense.3
1
Ky. Rev. Stat. (KRS) 511.020.
2
KRS 532.080.
3
See KRS 532.080(2)(c).
-2-
On January 29, 1996, the circuit court held a hearing to
consider the motion to dismiss.
The Commonwealth argued that
according to official court records the maximum expiration date for
the
1989
conviction
was
September
1991.4
Defense
counsel
maintained that the maximum expiration date referred to by the
Commonwealth was based on a 1987 felony conviction for which
Lienhart received a five-year sentence when he was 16 years old,
which could not be used for PFO purposes.
The court continued
consideration of the motion to allow defense counsel an opportunity
to resolve matters in Oldham County with respect to the 1989
conviction.
No further proceedings were conducted on the motion
prior to trial.
The trial, conducted on April 23-24, 1996, followed the
bifurcated procedure required by the Truth In Sentencing statute,
KRS 532.055, which provides for an initial guilt phase on the
underlying
substantive
sentencing phase.
felony
charge
and
a
second
separate
Under KRS 532.055(3), the prosecution of a PFO
charge may be combined with the sentencing phase on the initial
felony charge.
In this case, after the jury found Lienhart guilty
of burglary in the first degree in the guilt phase, the trial
proceeded to the combined penalty/PFO stage.
The prosecutor
explained
nature
in
his
opening
statement
the
dual
of
the
proceeding and the fact that conviction on the PFO II charge would
serve to enhance the range of sentence from the 10-20 year range
4
This was based on the fact that the one-year 1989 felony
sentence was treated by the Department of Corrections as running
concurrently with a five-year sentence for a 1987 felony conviction
for receiving stolen property and burglary in the second degree
imposed in Kenton County.
-3-
for burglary in the second degree alone to 20 years to life
imprisonment.
Prior to the introduction of evidence, defense
counsel again raised the issue of the valid use of the 1989 felony
conviction for use as a predicate offense for the PFO count, but
the parties decided to delay further consideration of the issue
until the close of the Commonwealth’s evidence.
The Commonwealth introduced evidence of Lienhart’s prior
criminal convictions including the 1987 felony conviction for
receiving stolen property and burglary in the second degree and the
1989 felony conviction for promoting contraband in the first
degree. Lienhart offered no evidence during this combined phase of
the trial.
Lienhart’s attorney made a motion for directed verdict
again arguing that the 1987 conviction could not be used for PFO
purposes because Lienhart was less than 18 years old at the time of
the conviction and the sentence for the 1989 conviction expired
more than five years prior to commission of the underlying 1995
burglary offense.
The Commonwealth argued that the discharge date
of September 1991, which included both the five-year sentence for
the
1987
conviction
and
the
one-year
sentence
on
the
1989
conviction, was the relevant date for purposes of Lienhart’s PFO
status.
The circuit court denied the motion to dismiss and stated
its ruling also applied to the written pretrial motion to dismiss
filed by defense counsel in January 1996.
The circuit court
allowed defense counsel, however, to argue in closing argument that
the Commonwealth had not proven Lienhart’s PFO status based on his
1989 felony conviction.
The jury found Lienhart guilty of being a
PFO II and recommended a sentence of 20 years for burglary in the
-4-
first degree and 20 years for PFO II.
On June 12, 1996, the
circuit court entered a final judgment sentencing Lienhart to 20
years for burglary in the first degree and 20 years for being a PFO
II to be served in lieu of the sentence on the burglary conviction.
On October 2, 1997, the Kentucky Supreme Court reversed
Lienhart’s conviction on the PFO II charge on direct appeal.5
Accepting the argument that defense counsel had raised before the
circuit court, the Supreme Court held that the Commonwealth failed
to establish an element of the PFO II offense by showing that
Lienhart had been discharged from a prior felony within five years
from commission of the underlying burglary in the first degree
offense.
The Court held that the one-year sentence for the 1989
conviction had expired in 1988 because as a concurrent sentence, it
was treated as beginning in 1987 with service of the sentence
imposed on the 1987 conviction.6
The Court held the circuit court
erred by denying the motion for directed verdict and reversed the
PFO II conviction, but affirmed the judgment and sentence for the
burglary in the first degree.7
On May 14, 1998, the circuit court
entered an order modifying the final judgment in conformity with
the Supreme Court’s opinion by dismissing the PFO II conviction and
sentence, but reaffirming the conviction and sentence for burglary
in the first degree.
On March 10, 1999, Lienhart filed a motion to vacate or
correct sentence pursuant to RCr 11.42, RCr 10.26, and CR 60.02
5
Lienhart v. Commonwealth, Ky., 953 S.W.2d 70 (1997).
6
Id. at 71.
7
Id. at 71-72.
-5-
based on ineffective assistance of counsel during the sentencing
phase of the trial.
While not challenging the burglary guilty
verdict, he sought a new sentencing hearing before a jury.
He
alleged that counsel was ineffective for not objecting to the
combined
penalty/PFO
procedure
and
not
evidence during the sentencing phase.
presenting
mitigating
On August 3, 1999, the
circuit court entered an order denying the motion stating that
Lienhart had suffered no prejudice because of the PFO component of
the penalty/PFO proceeding.
This appeal followed.
Lienhart argues on appeal that defense counsel rendered
ineffective assistance of counsel with respect to the sentencing
proceeding.
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 resulting in a proceeding that was
fundamentally unfair.8
The burden is on the defendant to overcome
a strong presumption that counsel’s assistance was constitutionally
sufficient.9
A court must be highly deferential in reviewing
defense counsel’s performance and should avoid second-guessing
8
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 (1985); Foley v. Commonwealth, Ky., 17 S.W.3d 878,
884 (2000).
9
Strickland, 466 U.S. at 689, 104 S. Ct. at
v. Commonwealth, Ky., 983 S.W.2d 479, 482 (1998), cert.
U.S. 842, 120 S. Ct. 110, 145 L. Ed. 2d 93 (1999);
Commonwealth, Ky., 975 S.W.2d 905, 912 (1998), cert.
U.S. 1025, 119 S. Ct. 1266, 143 L. Ed. 2d 361 (1999).
-6-
2065; Moore
denied, 528
Sanborn v.
denied, 526
counsel’s actions based on hindsight.10
In assessing 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.11 In order to establish
actual prejudice, a defendant must show a reasonable probability
that the outcome of the proceeding would have been different.12
A reasonable probability is a probability sufficient to undermine
confidence
totality
in
of
the
the
outcome
evidence
of
the
before
proceeding
the
jury.13
considering
In
an
RCr
the
11.42
proceeding, the defendant “must do more than raise a doubt about
the regularity of the proceedings under which he was convicted. He
must establish convincingly that he has been deprived of some
substantial right which would justify the extraordinary relief
afforded by this post-conviction proceeding.”14
Lienhart contends that defense counsel was ineffective
for failing to challenge the combined penalty/PFO procedure and
10
Harper v. Commonwealth, 978 S.W.2d at 311, 315 (1998),
cert. denied, 526 U.S. 1056, 119 S. Ct. 1367, 143 L. Ed. 2d 527
(1999); Russell v. Commonwealth, Ky. App., 992 S.W.2d 871, 875
(1999).
11
Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2064-65;
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);
Harper v. Commonwealth, supra, n. 10, at 315.
12
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Bowling
v. Commonwealth, Ky., 981 S.W.2d 545, 551 (1998), cert. denied, 527
U.S. 1026, 119 S. Ct. 2375, 144 L. Ed. 2d 778 (1999).
13
Strickland, 466 U.S. at 694-95, 104 S. Ct. at 2068-69.
See also Moore, 983 S.W.2d at 484, 488; Foley, 17 S.W.3d at 884.
14
Commonwealth v. Pelphrey, Ky., 998 S.W.2d 460, 462
(1999)(quoting Commonwealth v. Campbell, Ky., 415 S.W.2d 614, 616
(1967)); Foley, supra, n. 8, at 884.
-7-
failing
to
present
sentencing phase.
prosecution
in
certain
mitigating
evidence
during
the
He contends that combining the penalty and PFO
a
single
proceeding
interjected
prejudicial
information concerning the PFO charge into the proceeding that
should not have been introduced given the subsequent decision by
the Kentucky Supreme Court that there was insufficient evidence to
support the PFO II charge.
He asserts that the mere mention of the
PFO indictment and charge so tainted the proceeding that the jury
was improperly influenced to recommend a higher sentence for the
burglary in the first degree offense.
because
defense
counsel
knew
he
Lienhart maintains that
was
not
eligible
for
PFO
prosecution, he should have objected to the combined penalty/PFO
procedure given the obvious prejudicial effect of references to the
PFO charge.
First,
we
note
that
defense
counsel
first
raised
Lienhart’s eligibility for prosecution as a PFO II in a pretrial
motion to dismiss the PFO count.
He raised it again at the
beginning of the combined penalty/PFO proceeding in an attempt to
limit the proceeding solely to evidence relevant to sentencing on
the burglary.
Commonwealth
At that time, the circuit court decided to allow the
to
proceed
with
prosecution
on
the
PFO
charge
reserving the defense’s right to challenge the sufficiency of the
evidence on a motion for a directed verdict.
At the close of the
evidence, defense counsel moved for a directed verdict on the PFO
count, which the circuit court denied.
While the Kentucky Supreme
Court eventually accepted defense counsel’s argument that the 1989
felony conviction could not support the PFO charge, Lienhart’s
-8-
situation was unique without clear precedent.
Defense counsel
argued the issue vigorously in the circuit court in an attempt to
exclude references to the PFO charge in the penalty phase.
KRS
532.055(3) explicitly provides for a single combined Truth in
Sentencing and persistent felony offender proceeding.15
counsel
clearly
acted
reasonably
within
the
wide
Defense
range
of
prevailing professional norms based on the facts and the existing
state of the law.
In
Lienhart
addition,
has
not
we
shown
penalty/PFO proceeding.
agree
actual
with
the
circuit
prejudice
from
court
the
that
combined
In a Truth In Sentencing proceeding, the
Commonwealth may offer evidence of all the defendant’s prior
offenses.16
The court in Commonwealth v. Reneer approved of the
combined proceeding “because the same evidence that is pertinent
toward fixing the penalty is also pertinent for consideration in
the enhancement of sentence . . . .”17
Consequently, even if the
proceeding had been bifurcated and information of the PFO charge
excluded, the Commonwealth could have offered the same evidence of
Lienhart’s prior felony convictions including the 1987 conviction
for burglary and receiving stolen property.
The jury was already
aware that David Lienhart, not Steven Lienhart, was responsible for
injuring the two witnesses during the burglary.
Finally, the jury
did not enhance or increase the term of the sentence based on its
15
See Lemon v. Commonwealth, Ky. App., 760 S.W.2d 94
(1988); Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987).
16
KRS 532.055(2)(a).
17
Supra, n. 15, at 798.
-9-
having found him guilty of being a PFO II.
Lienhart’s assertion
that the mere mention of the PFO charge unfairly prejudiced him is
unfounded.
As
a
result,
Lienhart
has
not
demonstrated
that
counsel’s performance was deficient or that he suffered actual
prejudice in that the outcome of the sentencing proceeding probably
would have been different absent errors by counsel.
Lienhart’s
second
complaint
is
that
counsel
ineffective in failing to offer mitigation evidence.
was
Lienhart
alleges that he and his wife could have testified that he had been
working for the previous four years, he had just gotten married, he
had been a good husband, he was sorry for his actions, and one of
his prior convictions occurred before he was 18 years old.
He
contends that there is a reasonable probability the jury would have
recommended
a
lesser
sentence
if
counsel
had
offered
this
evidence.18
When the trial was conducted in May 1996, the type of
mitigation evidence that could be presented in the penalty phase
was circumscribed.
At that time, KRS 532.055(2)(b) provided:
The defendant may introduce evidence in mitigation.
purposes
of
this
section,
mitigating
evidence
For
means
evidence that the accused has no significant history of
criminal activity which may qualify him for leniency.
This section shall not preclude the introduction of
18
See, e.g., Austin v. Bell, 126 F.3d 843 (6th Cir.
1997)(defense counsel’s failure to present mitigation evidence that
was available could constitute ineffective assistance of counsel),
cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677
(1998); Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000).
-10-
evidence which negates any evidence introduced by the
Commonwealth[.]19
The evidence identified by Lienhart, such as his family and work
condition and his alleged feeling of remorse, simply was not
admissible mitigation evidence.
The only arguably admissible
evidence dealing with his young age at the time of his prior felony
convictions was introduced by the Commonwealth and highlighted by
questions and argument by defense counsel during the penalty phase.
Because
the
information
identified
by
Lienhart
was
either
inadmissible or admitted through the prosecutor’s witness, he was
not prejudiced by any omission by defense counsel.
Lienhart
has
not
shown
either
that
defense
Therefore,
counsel
rendered
deficient performance or that he was actually prejudiced by any
erroneous conduct of counsel with respect to his alleged failure to
offer mitigation evidence during the penalty phase of the trial.
In conclusion, Lienhart has not demonstrated that he is
entitled to a new sentencing proceeding based on ineffective
assistance of counsel.
The
order
from
which
this
appeal
is
prosecuted
is
affirmed.
ALL CONCUR.
19
This provision of the statute was later amended in 1998
to expand the scope of admissible mitigation evidence. Effective
July 15, 1998, KRS 532.055(2)(b) states:
“The defendant may
introduce evidence in mitigation or in support of leniency[.]”
-11-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Lienhart, pro se
Burgin, Kentucky
A.B. Chandler III
Attorney General
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
