LANCE A. CONN v. COMMONWEALTH OF KENTUCKY
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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NOT TO BE PUBLISHED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.
2000-CA-000268-MR
LANCE A. CONN
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 94-CR-00148
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Lance Conn has appealed the Franklin Circuit
Court’s denial of his RCr1 11.42 motion wherein he sought to have
his convictions and sentences for murder and robbery vacated.
Having concluded that Conn was not entitled to relief under RCr
11.42, we affirm.
1
Kentucky Rules of Criminal Procedure.
Conn was indicted on August 24, 1994, by a Franklin
Circuit Court grand jury for the offenses of Capital Murder2 and
Robbery in the First Degree, a Class B Felony.3
Special Judge
David L. Knox was assigned to the case on September 29, 1994.
On
July 18, 1995, Conn filed a motion to suppress certain
inculpatory statements he made to a Kentucky State Police
detective and a polygraph examiner.
The motion was denied on
August 7, 1995.
On August 21, 1995, Conn filed a motion to enter a
conditional guilty plea, reserving his right to appeal the trial
court’s denial of his motion to suppress.
A sentencing hearing
was held on February 14, 1996, and on February 29, 1996, the
trial court entered its judgment and sentence.
Conn was
sentenced to life imprisonment for the murder conviction and to
20 years for the robbery in the first degree conviction, with the
terms to be served concurrently.
Following Conn’s direct appeal,
the Supreme Court of Kentucky affirmed the trial court’s denial
of the suppression motion.4
On December 28, 1999, Conn filed his pro se RCr 11.42
motion wherein he asked for an evidentiary hearing and
appointment of counsel with leave to amend his motion.
2
Kentucky Revised Statutes (KRS) 507.020.
3
KRS 515.020.
4
1996-SC-000238, rendered June 17, 1999.
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The
Franklin Circuit Court denied the RCr 11.42 motion on January 20,
2000, stating:
This court takes great care when accepting a
guilty plea to ensure that each Defendant has
not been offered promises with respect to
sentencing by either the Commonwealth or
defense counsel. This Court finds that Conn
had several opportunities to make the Court
aware of any concerns he may have had during
the guilty plea before the Court, and failed
to do so. This Court finds no basis in
Conn’s claims for ineffective assistance of
counsel, and this Court finds no
constitutional invalidity in plea proceedings
or in Conn’s judgment.
Since the trial court denied Conn’s RCr 11.42 motion
without an evidentiary hearing, we must determine “whether the
[RCr 11.42] motion on its face states grounds that are not
conclusively refuted by the record and which, if true, would
invalidate the conviction.”5
Conn’s first claim is that Judge
Graham improperly heard and decided his RCr 11.42 motion; and
that Special Judge Knox, who heard the prior proceedings and
sentenced him, was the proper judge to hear the motion since he
was familiar with the case.
was biased in his ruling.
Conn also alleges that Judge Graham
In support of this claim, he points to
the language in the order and to the fact that Judge Graham
denied him relief without the Commonwealth even filing a
response.
It is critical to our justice system that all cases and
controversies be decided by our courts fairly and without passion
5
Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967).
-3-
or prejudice.
A judge is required to hear a case and not to
recuse himself from his obligation of exercising the duties of
his office if the parties and the subject matter of the
litigation are properly before him.6
While a judge should
disqualify himself where his impartiality might reasonably be
questioned,7 absent a showing of bias or prejudice, there is no
basis for recusal.8
A party’s mere belief that a judge will not
afford him a fair and impartial trial is not a sufficient ground
to require the judge to disqualify himself.
The asserted claim
of disqualification must be based upon stated facts showing bias
or prejudice sufficient to prevent the judge from fairly or
impartially trying the case.9
It is clear from the record that Conn’s RCr 11.42
motion was properly before Judge Graham; and there is nothing in
the record to show that Judge Graham’s partiality was ever in
question.
Conn’s contention that the language in the order and
that the judge’s denial of his motion without requiring a
response from the Commonwealth show bias is unconvincing.
The
language of the order and the denial of the hearing do not show
bias, but are merely manifestations that Judge Graham was
6
Pessin v. Keeneland Ass’n, 274 F.Supp. 513 (E.D.Ky. 1967).
7
Lovett v. Commonwealth, Ky.App., 858 S.W.2d 205 (1993).
8
Id.; Kentucky Rules of the Supreme Court 4.300.
9
Howerton v. Price, Ky., 449 S.W.2d 746 (1970); KRS
23.230(1).
-4-
satisfied from the record that there was no need for an
evidentiary hearing or for a response from the Commonwealth.
Conn next argues that the trial court erred in denying
his RCr 11.42 motion without holding an evidentiary hearing.
Conn claims that the record fails to show where the trial court
and trial counsel adequately advised him of his constitutional
rights.
Thus, he claims a hearing is required to establish the
validity of his allegations.
RCr 11.42(5) requires a hearing “if the answer raises a
material issue of fact that cannot be determined on the face of
the record.”10
However, “even in a capital case, an RCr 11.42
movant is not automatically entitled to an evidentiary
hearing.”11
If the record refutes the claims of error, there is
no need for an evidentiary hearing.12
In this case, the record
before this Court does not contain a transcript of the hearing
when the guilty plea was taken or a narrative statement pursuant
to CR13 75.13.14
Thus, our review is limited to making a
10
Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743 (1993),
cert. denied, 510 U.S. 1049 (1994).
11
Stanford, supra (citing Skaggs v. Commonwealth, Ky., 803
S.W.2d 573, 576 (1990), cert. denied, 502 U.S. 844 (1991)).
12
See Lovett, supra.
13
Kentucky Rules of Civil Procedure.
14
CR 75.13 states:
(1) In the event no videotape, mechanical or
stenographic record of the evidence or
(continued...)
-5-
determination as to whether the pleadings support the judgment;
and as to the issues of fact that are in dispute, we are required
to assume that the evidence below supported the findings in the
lower court.15
The record does contain a transcript of the
suppression hearing and a videotape of the sentencing hearing;
but to the extent it is necessary, it is the duty of the
appellant to present a full and complete record on appeal.16
(...continued)
proceedings at a hearing or trial was taken
or made or, if so, cannot be transcribed or
are not clearly understandable from the tape
or recording, the appellant may prepare a
narrative statement thereof from the best
available means, including his/her
recollection, for use instead of a transcript
or for use as a supplement to or in lieu of
an insufficient mechanical recording. This
statement shall be served on the appellee,
who may serve objections or proposed
amendments thereto within 10 days after
service upon him/her. Thereupon the
statement, with the objections or proposed
amendments, shall be submitted to the trial
court for settlement and approval, and as
settled and approved shall be included in the
record on appeal.
(2) By agreement of the parties a narrative
statement of all or any part of the evidence
or other proceedings at a hearing or trial
may be substituted for or used in lieu of a
stenographic transcript or mechanical
recording.
15
Porter v. Harper, Ky., 477 S.W.2d 778 (1972); Travelers
Indemnity Co. v. Patrick, Ky., 386 S.W.2d 256 (1964)(in absence
of evidence in the record, it is presumed that judgment is
supported by the evidence).
16
Commonwealth v. Thompson, Ky., 697 S.W.2d 143, 145 (1985).
-6-
Conn’s most significant allegation in this regard is
that neither the trial court nor his trial counsel adequately
advised him of his constitutional rights.
However, there is no
transcript or videotape of the colloquy between the trial court
and Conn when he entered his guilty plea; and Conn had the burden
of presenting us with an adequate record.
The rules of procedure
provided him with an opportunity to supplement the record with a
narrative statement detailing the alleged deficiencies of the
proceedings.
In the absence of such evidence, this Court is
required to assume that since the pleadings support the judgment,
that the evidence supports the trial court’s findings.
We note
that Conn signed a motion to enter a conditional guilty plea,
which not only detailed the constitutional rights he would be
waiving if he pled guilty, but also set out the possible
punishments he could receive for the convictions.
The motion
clearly stated that, “[n]o one has promised me any benefit in
return for my guilty plea . . . .”
Accordingly, we are convinced
by the record before us that the evidence supports the circuit
court’s findings as to the guilty plea and its denial of an
evidentiary hearing.
Conn next contends he was denied effective assistance
of counsel by counsel’s failure to investigate and prepare
available defenses, in violation of his constitutional rights
under the Sixth and Fourteenth Amendments of the United States
Constitution and Sections 2, 7 and 11 of the Kentucky
Constitution.
In support of this argument he asserts that (1)
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counsel only prepared three pre-trial motions for his case; (2)
counsel never sought a psychological evaluation to determine his
competence to stand trial and to make decisions regarding the
advice counsel gave him; (3) counsel would have discovered no
physical evidence linking him to the murder scene had an
investigation occurred; (4) counsel failed to interview any
witnesses as counsel was involved in another case and would not
be able to investigate or apply himself to Conn’s case; and (5)
counsel never investigated because counsel never intended to take
Conn’s case to trial, effectively becoming a “player” on the
Commonwealth’s team.
Obviously, trial counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes a
particular investigation unnecessary.17
A reasonable
investigation is not, however, the investigation that the best
defense lawyer with unlimited time and resources and the benefit
of hindsight would conduct.18
As the Supreme Court stated in
Baze, “[d]epending on the circumstances, there are many ways a
case may be tried.
The test for effective assistance of counsel
is not what the best attorney would have done, but whether a
17
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
2066, 80 L.Ed.2d 674 (1984).
18
Baze v. Commonwealth, Ky., 23 S.W.3d 619, 625 (2000)
(quoting Kokoraleis v. Gilmore, 131 F.3d 692, 693 (7th Cir.
1997); Stewart v. Gramley, 74 F.3d 132, 135 (7th Cir. 1996);
Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995)(en banc)).
-8-
reasonable attorney would have acted, under the circumstances, as
defense counsel did at trial” [citation omitted].19
Conn claims that his trial counsel was ineffective in
filing only three pre-trial motions for this death penalty case.
However, as the Commonwealth points out, Conn has failed to state
which motions should have been filed and what affect they might
have had on his case.
The burden is on Conn to show that but for
his counsel’s unprofessional errors, the result of the
proceedings would have been different; even a reasonable
probability is a probability sufficient to undermine confidence
in the outcome.20
However, Conn clearly has not met this burden
by his mere allegation that more pre-trial motions should have
been filed in his case.
Conn claims that his trial counsel’s investigation
should have included a psychological evaluation of his competence
to stand trial and his ability to make decisions regarding his
defense.
In Kentucky, “the presumption that a defendant is
competent to stand trial disappears when there are reasonable
grounds to hold a competency hearing” [emphasis added].21
In
Foley v. Commonwealth,22 the Supreme Court found trial counsel
19
Id.
20
Moore v. Commonwealth, Ky., 983 S.W.2d 479 (1998);
U.S.C.A. Const.Amend. 6.
21
Gabbard v. Commonwealth, Ky., 887 S.W.2d 547 (1994); KRS
504.100(3).
22
Ky., 17 S.W.3d 878, 885-86 (2000).
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was not ineffective for declining to request medical competency
hearing before defendant’s double murder trial where defendant
“assisted him in defense, . . [and] seemed lucid and was able to
converse with attorney and others.
Foley testified in his own
defense for over one and one-half hours. . . [and] was able to
answer questions both on direct and cross-examination.
The only
evidence introduced indicating any bizarre behavior were letters
supposedly written by Foley to his deceased grandmother shortly
before trial [and] although family members spoke of various head
injuries suffered by Foley during childhood, no medical records
were presented to support such testimony.”
In the case sub judice, Conn offered no evidence to
support his claim that he may have been incompetent to stand
trial or to make decisions to assist in his case.
From our
review of the transcript of the suppression hearing and the
videotape of the sentencing hearing, it is apparent that Conn
testified at both hearings with lucidity and without any apparent
problem.
He has offered no medical testimony to support his
incompetency argument.
The only evidence that he presented that
even has a slight relation to this issue is that he suffered
verbal, emotional and perhaps some physical abuse as a child.
However, these allegations alone are insufficient to establish
that his trial counsel was ineffective in not seeking a
competency hearing.
Since there was no apparent reason to
question Conn’s competency, it was not ineffective assistance of
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counsel for his trial counsel not to seek a psychological
evaluation.
Conn argues that if his trial counsel had investigated
his case, trial counsel would have discovered there was no
physical evidence linking him to the murder scene.
What Conn
conveniently fails to mention, however, is that he had already
confessed his involvement in the robbery of Ms. Vaughn to Nevada
authorities.
His involvement in that felony, as will be
discussed infra, subjected him to legal culpability for her
murder.
Trial counsel may or may not have been aware of a lack
of physical evidence linking Conn to the crime scene; but trial
counsel indeed knew that Conn had already given the information
about his involvement in the crime to authorities.
Even if
counsel had conducted the most thorough investigation of physical
evidence, the outcome would have been the same: Conn would have
been charged with the murder through his involvement in the
robbery.
As any claimed failure to investigate the physical
evidence would not have affected the outcome of the case, Conn
has failed to meet his burden for relief under RCr 11.42.
Conn contends that his trial counsel told him he could
not interview witnesses, as he was involved in another case.
Even if this Court accepted this bald allegation as true, Conn
still failed to meet his burden of showing that but for his
counsel’s unprofessional errors, the result of the proceedings
-11-
would have been different.23
Conn has not provided any names of
witnesses and or any specific evidence that counsel could have
found which would have significantly assisted in his defense.
Since there is no basis to conclude that the alleged failure of
trial counsel to interview witnesses would have provided a
reasonable probability for a different outcome, Conn has not met
his burden.
Conn also makes the bald assertion that his trial
counsel did not investigate his case because counsel never
intended to take the case to trial, and that his counsel
effectively became a “player” on the Commonwealth’s team.
such bald assertions carry no weight.
Again,
We believe that in light
of the information given by Conn to Nevada and Kentucky
authorities, the Commonwealth’s seeking of the death penalty and
the general horror of the crime committed, counsel that trial
acted reasonably and was not ineffective.
Conn claims his trial counsel violated his
constitutional rights by advising him to plead guilty to a crime
he did not commit, i.e., the murder of Geneva Vaughn.
Conn has
admitted his involvement with two co-defendants in a plot to rob
Ms. Vaughn.
While Conn claims that he did not physically kill
her, he admitted that he took part in the robbery and that he
helped Marshall place her body in the car after the murder.
Conn’s participation in these crimes meets the legal requirements
for the murder conviction.
23
As the Commonwealth points out in its
See Moore, supra.
-12-
brief, the Commentary to KRS 507.020 proposes that if a jury
should determine from all the circumstances surrounding the
felony, i.e., the robbery, that a defendant’s participation in
that felony constituted wantonness manifesting extreme
indifference to human life, he is guilty of murder under KRS
507.020(1)(b).
Conn’s trial counsel was appraised of the
Commonwealth’s intention to seek the death penalty.
Counsel was
similarly aware that Conn’s inculpatory statements to the Nevada
police and Kentucky police were ruled admissible at trial.
Co-
defendant Ware’s counsel stated at the sentencing hearing that
Ware had at all times planned to testify against Conn at trial.
It is certainly proper for trial counsel to influence a guilty
defendant to plead guilty in order to obtain a lighter sentence
than a jury might impose.24
In Conn’s case, trial counsel had a
client who admitted to his involvement in a felony robbery which
resulted in the victim’s death which provided a basis for Conn’S
murder conviction.
Trial counsel’s advice that Conn plead guilty
and that he should turn state’s witness in an attempt to avoid
the death penalty was certainly not unreasonable or ineffective
assistance of counsel.
Conn claims that a mitigation expert explained to him
before trial that a conditional guilty plea would, among other
things, eliminate the possibility that he would receive either
the death penalty or a life sentence for his crime.
24
Harris v. Commonwealth, Ky.,
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He claims
456 S.W.2d 690 (1970).
that this guilty plea agreement was a tool employed by his
counsel to mislead him into believing that if he pled guilty and
agreed to testify against co-defendant Marshall, he would receive
two, 20-year prison terms running concurrently.
He argues that
counsel knew the Commonwealth would take no stance on sentencing,
and he posits that had he understood the agreement to plead
guilty would not result in a reduced sentence of some sort, he
would not have pled guilty, would not have cooperated with the
Commonwealth, and would have taken his chances at trial, where
the possible penalties would have been no different than those
involved at the sentencing hearing before the trial court.
The record in this case clearly indicates that the
potential penalties Conn faced for the charge of murder ranged
from 20 years to death and for the charge of robbery from 10 to
20 years.
Conn cites Haight v. Commonwealth,25 and likens
himself to the defendant in that case who had been “assured that
an agreement had been reached whereby he would be sentenced in
accordance with the recommendation of the Commonwealth, but a
meaningless ritual was required in which he would have to say
that no promise had been made to him in return for his guilty
plea.”26
However, the Haight case is factually distinguishable.
There, the trial court and counsel for both sides had engaged in
several conversations concerning a plea agreement, and the trial
25
Ky., 760 S.W.2d 84 (1988).
26
Id. at 86.
-14-
court explained that while it generally followed the
Commonwealth’s sentencing recommendations, it could not bind
itself by law to a predetermined sentence without reviewing a
sentencing report.
When the trial court rejected the
recommended sentence and imposed the death penalty, Haight
appealed and the Supreme Court found that the trial court’s
comment that it would give great weight to the Commonwealth’s
recommendations, along with the fact that the trial court would
follow the Commonwealth’s recommendations absent any unforeseen
circumstances, rendered Haight’s guilty plea invalid.
Conn has not identified anything in the record which
supports his allegation that he merely went through the motions
of pleading guilty with the understanding that he would receive
an agreed upon sentence in accordance with the plea agreement.
He signed the guilty plea form which clearly stated the possible
penalties he faced.
That form did not contain any language
indicating that all Conn would receive on a plea of guilty was
two, 20-year sentences.
The record refutes Conn’s allegation
that his counsel misled him into believing the plea agreement
required a sentence of two, 20-year terms.
Conn next argues that his plea agreement was breached
at the sentencing hearing, and that counsel should have brought
the breach of the agreement to the trial court’s attention.
He
claims his trial counsel failed to advise him that he had a right
to withdraw his guilty plea once the trial court refused to
follow the plea agreement and that such failure constituted
-15-
ineffective assistance of counsel.
Obviously, for Conn to
succeed on this issue he must first demonstrate that the plea
agreement required two, 20-year sentences.
As we have discussed
previously, the guilty plea form signed by Conns states nothing
about the Commonwealth recommending two, 20-year sentences.
To
the contrary, the agreement listed several possible sentences.
Since the plea agreement did not require a certain sentence,
there could not be a breach of such at the sentencing hearing.
Accordingly, trial counsel was not ineffective in failing to
object or in failing to advise Conn that he could withdraw the
guilty plea.
Conn also claims his trial counsel failed him by not
making independent pre-trial investigations to determine the
adequacy of his plea advice.
He claims that he was required to
forego the right to interview witnesses before deciding whether
to accept the plea agreement and to enter a guilty plea; that he
was required to forego the right to confront his accusers; that
his right against self-incrimination and “several other
constitutional rights were denied”; that counsel never intended
to take his case to trial and therefore did not adequately
prepare during the critical pre-trial phase; and that counsel
neglected his duty to interview potential witnesses and to make
an independent examination of the factual circumstances of the
case.
We have already addressed many of these same arguments.
Therefore, our discussion here will be limited to addressing
-16-
Conn’s argument that he was forced to waive his constitutional
rights before a proper investigation had been made to determine
the adequacy of the advice he was given to plead guilty.
As has
been stated previously, trial counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.27
A reasonable
investigation, however, does not require an investigation by the
best possible defense lawyer who has unlimited time and resources
and the benefit of hindsight.28
As our Supreme Court stated in
Baze, supra, “[d]epending on the circumstances, there are many
ways a case may be tried.
The test for effective assistance of
counsel is not what the best attorney would have done, but
whether a reasonable attorney would have acted, under the
circumstances, as defense counsel did at trial” [citation
omitted].29
Conn’s counsel knew Conn had made inculpatory
statements which had been ruled admissible at trial, he knew Conn
had planned with his co-conspirators to rob Ms. Vaughn, and he
knew Conn had helped place Ms. Vaughn’s body in the trunk of the
car.
Counsel’s investigation, which included hiring a mitigation
expert for help in presenting mitigation evidence at the
sentencing hearing, apparently led counsel to believe that the
best course of action for Conn would be to plead guilty and to
27
See Strickland, supra.
28
See Thompson, supra.
29
Baze, supra at 625.
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turn state’s evidence, as opposed to facing a jury in a death
penalty case.
In light of the totality of the circumstances, it
was not ineffective for counsel to advise Conn to plead guilty
based on the information counsel had and the reasonable
investigation he had conducted.
Conn also makes the serious charge that his counsel
withheld exculpatory evidence contained in discovery materials
from him until after he pled guilty.
Conn argues that if he had
known of details about witness testimony and fingerprint evidence
contained in this exculpatory evidence that he would not have
pled guilty.
We begin our analysis of this issue by stating the
fundamental rule that for a defendant’s guilty plea to be valid
it must be given knowingly, voluntarily and intelligently.30
The
plea must be made with knowledge of the “relevant circumstances
and likely consequences.”31
Determining whether a plea was made
voluntarily requires an evaluation of all the relevant
circumstances surrounding the plea.32
The ultimate question is
whether the plea was in fact given knowingly, voluntarily and
intelligently.33
30
Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711,
23 L.Ed.2d 274 (1969).
31
Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463,
1469, 25 L.Ed.2d 747 (1970).
32
Caudell v. Jago, 747 F.2d 1046, 1050 (6th Cir. 1984).
33
Pitts v. United States, 763 F.2d 197, 200 (6th Cir. 1985).
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Conn’s claim that his counsel misled him into believing
that his co-defendant and former girlfriend, Ware, would testify
against him is not supported by the record.
Rather, the record
supports counsel’s advice that Ware would, in fact, testify
against Conn.
The record of the sentencing hearing directly
refutes Conn’s contention that Ware would not testify against
him.
Her counsel clearly stated that she, at all times, had been
ready and willing to testify against Conn.
Since the record
refutes this argument, an evidentiary hearing was not required;34
and there was no evidence of ineffective assistance of counsel
concerning this claim.
Conn also claims that counsel told him that his prints
were on Ms. Vaughn’s glasses, and that he did not discover that,
in fact, those prints belonged to co-defendant Marshall until
after he pled guilty.
question.
This claim poses a more difficult
We do not take these serious accusations lightly;
however, Conn is required to show not only that his trial
counsel’s performance was deficient, but that this deficiency
resulted in actual prejudice.
If counsel’s performance is deemed
ineffective, but the end result would have been same, then a
movant is not entitled to relief under RCr 11.42.35
Conn’s assertion that his counsel lied to him and
withheld discovery materials from him is not refuted on the face
of the record; however, even if this violation occurred, it would
34
See Sanborn, supra.
35
Brewster v. Commonwealth, Ky.App., 723 S.W.2d 863 (1986).
-19-
not constitute actual prejudice to Conn.
The record clearly
demonstrates that Conn admitted his involvement in the robbery
and the moving of the victim’s body to both the Nevada and
Kentucky police.
Thus, even if Conn had known that the
fingerprints on Ms. Vaughn’s glasses belonged to Marshall and not
to him, it would not have changed the fact that he took part in a
felony resulting in her death, and that he could still be found
guilty of murder.
Since Conn has failed to show actual
prejudice, he cannot prevail on his ineffective assistance of
counsel claim.
The standard for determining ineffective assistance of
counsel announced in Strickland, supra, was adopted by this Court
in Gall v. Commonwealth.36
Strickland requires a movant to show
both that counsel’s performance was deficient and that the
deficient performance prejudiced the defense.37
In addition,
Strickland mandates that judicial scrutiny be highly deferential.
A court making this evaluation “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.”38
A court in considering an ineffectiveness claim must
“consider the totality of the evidence before the judge or jury”
and “assess counsel’s overall performance throughout the case in
36
Ky., 702 S.W.2d 37 (1985), cert. denied 478 U.S. 1010, 106
S.Ct. 3311, 92 L.Ed.2d 724 (1986).
37
Strickland, 466 U.S. at 687.
38
Id. 466 U.S. at 689.
-20-
order to determine whether the “indentified acts or omissions”
overcome the presumption that counsel rendered reasonable
assistance.”39
We do not believe that in light of all of the
circumstances, counsel’s performance was “outside of the wide
range of professionally competent professional assistance.”40
Conn also argues that the cumulative impact of his
counsel’s errors requires that his conviction and sentence be set
aside.
As we have concluded that no prejudicial error occurred,
a combination of non-errors does not suddenly require reversal.41
For the reasons set forth above, we hold that the
Franklin Circuit Court’s order denying Conn an evidentiary
hearing and denying him any relief under RCr 11.42 is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lance Conn, pro se
Burgin, KY
A.B. Chandler, III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, KY
39
Id.
40
Id. 466 U.S. at 690.
41
Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 278 (1992); see
also Funk v. Commonwealth, Ky., 842 S.W.2d 476, 483 (1992); and
McQueen v. Commonwealth, Ky., 721 S.W.2d 694 (1986).
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