EUGENE WOODARD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 26, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001808-MR
EUGENE WOODARD
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH H. ABRAMSON, JUDGE
ACTION NOS. 97-CR-000635 & 97-CR-002116
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
Judge.1
BUCKINGHAM and KNOPF, Judges, and MARY COREY, Special
BUCKINGHAM, JUDGE: Eugene Woodard appeals from an order of the
Jefferson Circuit Court denying his RCr2 11.42 motion to vacate
his conviction and sentence.
We affirm the order of the trial
court.
As a result of a consent search of a residence in
Jefferson County on December 28, 1996, Woodard was indicted by a
grand jury and charged with first-degree trafficking in a
1
Senior Status Judge Mary Corey, sitting as Special Judge
by assignment of the Chief Justice pursuant to Section 110(5)(b)
of the Kentucky Constitution.
2
Kentucky Rules of Criminal Procedure.
controlled substance (cocaine) while in possession of a firearm,
trafficking in marijuana while in possession of a firearm, and
illegal use or possession of drug paraphernalia while in
possession of a firearm.
Pursuant to a plea agreement with the
Commonwealth, Woodard entered an Alford plea of guilty to the
crimes.
The guilty pleas were entered before the trial court on
May 14, 1997, and the plea agreement provided for a sentence of
ten years on the cocaine charge, one year on the marijuana
charge, and one year on the drug paraphernalia charge.
The
agreement further stated that all sentences should run
concurrently and that the Commonwealth had no objection to
Woodard receiving probation provided he received no new charges
before sentencing.
On June 14, 1997, Woodard appeared before the trial
court for sentencing.
The court sentenced Woodard to ten years’
imprisonment in accordance with the plea agreement and probated
his sentence for a period of five years.
The probation was
subject to various conditions, including that Woodard refrain
from violating the law, comply with the regulations and
supervision of his probation officer, and serve six months in the
county jail with work release allowed.
On July 2, 1997, Woodard failed to return to jail after
being out on work release.
On July 19, 1997, he was apprehended
by law enforcement officers and was subsequently charged with
second-degree escape, possession of a handgun by a convicted
felon, and third-degree assault on a police officer. On September
2, 1997, he appeared with counsel before the trial court and pled
guilty to the three charges pursuant to a plea agreement with the
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Commonwealth.
He waived the preparation of a presentence
investigation report and consented to final sentencing at that
time.
Pursuant to the plea agreement, Woodard was sentenced to
one year on the escape charge and five years on the handgun
charge.
The sentences were ordered to run consecutively for a
total sentence of six years and were also ordered to run
consecutively with the ten-year sentence received in this case.
The handgun charge was dismissed by agreement.
Further, Woodard
acknowledged to the trial court that the new crimes and
convictions constituted a violation of his probation, and he
stipulated that his probation should be revoked.
Consequently,
the court entered an order revoking his probation in this case
and reinstating his ten-year sentence.
On February 23, 1998, Woodard filed a motion to vacate
the judgment pursuant to RCr 11.42.
grant him an evidentiary hearing.
He also moved the court to
By order entered by the trial
court on June 27, 2000, the motions were denied.
This appeal
followed.
Woodard’s first argument is that the trial court lacked
jurisdiction to revoke his probation.
He claims that he was
given no notice of a probation revocation hearing, no hearing, no
fact findings, no opportunity to present witnesses and cross
examine witnesses, and no assignment of counsel prior to his
probation being revoked.
In support of his argument, Woodard
cites KRS3 533.050(2) which states that “[t]he court may not
revoke or modify the conditions of a sentence of probation or
3
Kentucky Revised Statutes.
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conditional discharge except after a hearing with defendant
represented by counsel and following a written notice of the
grounds for revocation or modification.”
We reject Woodard’s argument for two reasons.
First,
if Woodard was aggrieved by the trial court’s actions in revoking
his probation, he had an available avenue to seek relief by
directly appealing the revocation order.
RCr 11.42 is not a
vehicle for seeking relief that was accessible by direct appeal.
Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856 (1983).
Second,
Woodard’s assertion that the trial court’s failure to adhere to
KRS 533.050(2) deprived the court of jurisdiction to revoke his
probation is also without merit.
The obvious purpose of the
statute is to give a defendant notice of the grounds for
revocation, an opportunity to consult with counsel, and a hearing
after proper notice.
When Woodard pled guilty to the escape and
assault charges, he acknowledged that those convictions were
sufficient to revoke his probation.
his probation should be revoked.
by counsel.
In fact, he stipulated that
Furthermore, he was represented
As in Messer v. Commonwealth, Ky. App., 754 S.W.2d
872 (1988), he “cannot now be heard to complain”.
Id. at 874.
Woodard’s second argument is that he received the
ineffective assistance of counsel because counsel allowed him to
plead guilty before properly investigating the facts of his case.
He claims that the residence in which the cocaine, marijuana, and
drug paraphernalia were found was not his residence and that he
had no control of those items.
He asserts that had counsel fully
investigated these matters and requested a suppression hearing,
the result of his case may have been different.
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In demonstrating the ineffective assistance of counsel
in connection with a defendant pleading guilty, the defendant
must show that counsel’s performance was deficient and that the
deficient performance so effected the outcome of the proceedings
that “but for the errors of counsel, there was a reasonable
probability that the defendant would not have pleaded guilty, but
would have insisted on going to trial.”
Sparks v. Commonwealth,
Ky. App., 721 S.W.2d 726, 727-28 (1986).
Woodard claims that he
would not have pled guilty under the circumstances but for the
advice of his counsel who had not fully investigated the facts of
the case.
Specifically, he claims that the apartment was not his
residence but was the residence of his cousin, Jacky Woodard.
Prior to trial, the Commonwealth filed a discovery
compliance document with the trial court that contained several
documents.
There was a copy of a residential lease that
indicated the apartment was leased by Woodard’s cousin, Jacky.
However, there was also a statement in the record from Woodard’s
cousin, Carolyn Jones, that Jacky Woodard was not living in the
residence and had obtained the apartment for the appellant as a
favor so he (appellant) could live there.
Further, the discovery
compliance by the Commonwealth revealed photographs of the
residence that were taken by the police officers during the
search.
One of the photographs is of an envelope addressed to
Woodard at the apartment’s address.
Another photograph shows
Woodard’s high school diploma on display in the apartment.
In its order denying Woodard’s RCr 11.42 motion, the
trial court accurately notes that there is substantial evidence
in the record to refute Woodard’s argument that he did not live
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in the apartment.
Although Woodard claims his counsel’s
performance was deficient in advising him to plead guilty without
further investigation, it is apparent that there was considerable
evidence that Woodard resided in the apartment.
Advising Woodard
to plead guilty and receive a probated sentence appears to us to
be sound advice by counsel rather than ineffective assistance.
“When an attorney, after making an adequate investigation, in
good faith and in the exercise of reasonable judgment induces his
client to take this course, we cannot discern in what respect
this constitutes ineffective representation.”
Commonwealth v.
Campbell, Ky., 415 S.W.2d 614, 616 (1967).
Woodard’s last argument is that the trial court erred
in denying him an evidentiary hearing.
“[A] hearing is required
only if there is an issue of fact which cannot be determined on
the face of the record.”
S.W.2d 742, 743-44 (1993).
Stanford v. Commonwealth, Ky., 854
The trial court in this case
correctly determined that an evidentiary hearing was not
required.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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