RICKY ALLEN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 19, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001717-MR
RICKY ALLEN
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 99-CR-00121
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
HUDDLESTON, GUIDUGLI and JOHNSON, Judges.
HUDDLESTON, Judge:
Ricky Allen appeals from an April 24, 2000,
Laurel Circuit Court order that denied his Kentucky Rules of
Criminal Procedure (RCr) 11.42 motion to vacate a January 20, 2000,
judgment sentencing him to serve five years for possession of a
firearm by a convicted felon.1
Allen argued that his sentence
should be vacated due to ineffective assistance of counsel that
rendered his guilty plea involuntary.
1
Ky. Rev. Stat. (KRS) 527.040.
Without benefit of an
evidentiary hearing, the circuit court denied Allen’s motion.
We
vacate and remand for an evidentiary hearing.
On August 15, 1999, London city police arrested Allen and
charged him with possession of a firearm by a convicted felon2 and
possession of a police scanner.3
On September 17, 1999, a Laurel
County grand jury indicted Allen and charged him with possession of
a firearm by a convicted felon (possession) and being a persistent
felony offender in the first degree4 (PFO I).
Also, on September
17, 1999, the Laurel Circuit Court arraigned Allen, who pled not
guilty, and appointed a public defender to represent him.
On November 9, 1999, Allen appeared in circuit court with
counsel and tendered a motion to enter a guilty plea in reliance on
the Commonwealth’s offer of five years to serve on possession and
dismissal of the PFO I charge.
Upon interrogation by the court,
Allen was reluctant to admit to the facts as charged.
Noticing his
reluctance, the circuit court ordered a recess to allow Allen to
consult with counsel. The circuit court suggested that Allen might
wish to withdraw his guilty plea and proceed to trial or enter a
plea pursuant to North Carolina v. Alford.5
After the recess,
Allen entered an Alford plea6 in reliance on the Commonwealth’s
2
KRS 527.040.
3
KRS 432.570.
4
KRS 532.080.
5
400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.2d 162 (1970).
6
In entering an Alford plea, a defendant, in effect, pleads
nolo contendere, that is, the defendant neither admits nor denies
the charges.
-2-
offer.
On January 20, 2000, Allen was sentenced to five years in
prison.
On April 12, 2000, Allen filed a motion pursuant to RCr
11.42 to vacate his sentence due to ineffective assistance of
counsel that rendered his Alford plea involuntary.
Allen argued
that his public defender was ineffective for several reasons, two
of which we shall consider.
First, Allen alleged his counsel was
ineffective because she failed to file a motion to suppress, for
lack of probable cause, the search of the automobile that Allen was
driving at the time of his arrest in which the firearm was found.
Second, Allen asserted his counsel was ineffective because she
advised a potential material witness not to testify on Allen’s
behalf. Allen argued that since his counsel was ineffective and he
relied on her advice in deciding to plead guilty, his plea was both
coerced and involuntary.
After it reviewed the record and without
an evidentiary hearing, the circuit court denied Allen’s motion and
stated that Allen’s claims were without merit.
Although Allen raises several issues on appeal, we need
not address them all.
We will address only one, whether the
circuit court erred by failing to grant Allen an evidentiary
hearing on his allegations that his counsel failed to file a
suppression motion and advised a potentially material witness not
to testify on his behalf.
In his RCr 11.42 motion and again on appeal, Allen argues
that the London police illegally searched the automobile he was
driving.
According to Allen, the London police accosted him as he
was leaving a local convenience store.
-3-
In response to their
questions, Allen told the police that he was alone and that he was
driving Nancy England’s automobile.
Allen alleges that the police
then searched the vehicle without a warrant, without England’s
consent and without his consent.
Further, Allen contends he was
neither under arrest nor in police custody at the time of the
search. Allen alleges that, given his recitation of the facts, his
counsel was ineffective by failing to file a motion to suppress the
search.
Further, Allen alleges that Roy Hugill was willing to
testify on his behalf that the handgun found in England’s car
belonged to him, that he had placed the handgun in a sock and hid
it under the backseat of England’s car without England’s or Allen’s
knowledge.
Allen alleges that his counsel advised Hugill not to
testify because if Hugill did he could be charged with any crimes
in which the handgun may have been used.
his
recitation
of
the
facts,
his
Allen alleges that, given
counsel
was
ineffective
by
advising Hugill not to testify.
To establish ineffective assistance of counsel, Allen
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
-4-
that
there
is
a
reasonable probability the defendant would not have pled
guilty, and the outcome would have been different.7
To prove his allegations, Allen requested an evidentiary hearing.
Of course, Allen would not have been entitled to an evidentiary
hearing, if his allegations were refuted on the face of the record
as a whole.8
For the purpose of this appeal, we are limited to
reviewing Allen’s RCr 11.42 motion to see if, “on its face [it]
states grounds that are not conclusively refuted by the record and
which, if true, would invalidate the conviction.”9
Regarding Allen’s allegation that his counsel failed to
file a suppression motion, we have reviewed the record and cannot
find any other recitation of the facts surrounding the search of
England’s vehicle and Allen’s arrest.
The Commonwealth did not
file a pleading that contained a comprehensive recitation of the
facts nor did the circuit court’s denial of Allen’s motion contain
a recitation of the facts.
Due to this dearth of information in
the record, we cannot determine the veracity of Allen’s recitation
of the facts.
If true, Allen’s counsel was ineffective by failing
to file a suppression motion since he had standing to challenge the
7
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51, 55,
quoting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed.2d 674 (1984); Sparks v. Commonwealth, Ky. App., 721 S.W.2d
726, 727-728 (1986).
8
Sparks v. Commonwealth, supra, n. 7, at 727, citing
Hopewell v. Commonwealth, Ky. App., 687 S.W.2d 153, 154 (1985).
9
Id.,quoting Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322
(1967).
-5-
search10 and that, if successful, could have resulted in dismissal
of the charges.
If this allegation is true, it would invalidate
Allen’s conviction.
Since the record does not contain sufficient
information to conclusively refute this allegation, the circuit
court erred in not granting an evidentiary hearing.
Regarding Allen’s allegation that his counsel advised
Hugill not to testify on Allen’s behalf, we have reviewed the
record and it is silent.
If Allen’s counsel actually advised
Hugill not to testify, then she certainly rendered ineffective
assistance of counsel since Hugill’s testimony could have resulted
in an acquittal.
If counsel in fact advised Hugill not to testify,
this would have clearly prejudiced Allen.
If this allegation is
true, then it would most certainly invalidate Allen’s conviction.
As above, the circuit court erred in not granting an evidentiary
hearing to ascertain the truth of this allegation.
The order denying Allen’s RCr 11.42 motion is vacated and
this case is remanded to Laurel Circuit Court with directions to
conduct an evidentiary hearing on the two issues discussed above.
The circuit court should appoint counsel to represent Allen at the
hearing.
ALL CONCUR.
10
Lane v. Commonwealth, Ky., 386 S.W.2d 743, 746-747 (1964),
quoting Brown v. Commonwealth, Ky., 378 S.W.2d 608, 611 (1964). See
also, United States v. Blanco, 844 F.2d 344 (6th Cir. 1988) and
United States v. Dunson, 940 F.2d 989 (6th Cir. 1991).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ricky Allen, pro se
Burgin, Kentucky
Albert B. Chandler III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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