RODNEY L. NEWCOMB v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 6, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002336-MR
AND
NO. 2002-CA-002367-MR
RODNEY L. NEWCOMB
v.
APPELLANT
APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NOS. 99-CR-00066 & 99-CR-00077
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; HUDDLESTON, SENIOR JUDGE.1
VANMETER, JUDGE:
These are related pro se appeals from orders
of the Carroll Circuit Court denying Rodney Newcomb’s motions
seeking court records and RCr 11.42 relief.
Newcomb contends in Appeal No. 2002-CA-002336 that he
received ineffective assistance of counsel in connection with
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
his plea of guilty to multiple drug-related charges in Action
No. 99-CR-66, and in connection with his plea of guilty to
second-degree escape and other drug-related charges in Action
No. 99-CR-77.
Additionally, he contends that the trial court
abused its discretion by denying him an evidentiary hearing and
appointed counsel on his motion for RCr 11.42 relief, and that
the court erred by failing to supplement its order with written
findings of fact and conclusions of law.
In Appeal No.
2002-CA-002367, Newcomb contends that the trial court erred by
denying his motion seeking copies of the court records upon
which Appeal No. 2002-CA-002336 is based.
We find no merit to
Newcomb’s contentions and thus affirm the circuit court’s
orders.
With the assistance of a confidential informant (CI),
a Kentucky State Police (KSP) detective conducted a controlled
drug buy from Newcomb on August 6, 1999, in Carrollton.
A
post-arrest search of Newcomb and his vehicle yielded marijuana,
crack cocaine, pills, $617 in cash, drug paraphernalia, and a
cellular telephone.
Newcomb was at the Carroll County Courthouse, awaiting
the return of the indictment relating to the first arrest, when
he was arrested on a probation and parole detainer issued by his
parole officer.
While in the custody of the Carroll County
Sheriff, Newcomb asked and was permitted to use the restroom
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after emptying the contents of his pockets, which included a
bottle of a liquid substance which later was analyzed and
determined to be cocaine.
Newcomb then escaped, was chased out
of the courthouse, and was seized blocks away.
Newcomb’s
vehicle was impounded and a search warrant was issued for its
search, resulting in the discovery of the marijuana, pills, and
drug paraphernalia which served as the basis for the second
indictment against him.
On December 13, 1999, Newcomb entered
guilty pleas to charges listed in both indictments, and he was
sentenced to a total of twenty-five years’ imprisonment.
On August 5, 2002, Newcomb filed an RCr 11.42 motion
alleging that he received ineffective assistance of counsel.
The circuit court denied the motion, stating that on the face of
the record, Newcomb’s motion “raises no material issues of fact
which require a hearing.”
Appeal No. 2002-CA-002336 followed.
The trial court subsequently denied Newcomb’s motion seeking
court records, and Appeal No. 2002-CA-002367 followed.
In Strickland v. Washington,2 the United States Supreme
Court set out the standards by which to consider whether counsel
was ineffective in that ‘[t]he defendant must show that there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
2
466 U.S. 668, 689, 104 S.Ct. 2052, 2054, 80 L.Ed.2d 674 (1984).
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undermine confidence in the outcome."
A successful claim of
ineffective assistance of counsel requires a defendant to show
both that the counsel's performance was deficient, and that the
deficient performance so prejudiced the defense that in the
absence of counsel’s errors a different result was reasonably
probable.3
If a defendant has entered a guilty plea, a reviewing
court must apply Strickland by determining whether “there is a
reasonable probability that, but for counsel’s errors, [the
defendant] would not have pleaded guilty and would have insisted
on going to trial.”4
Newcomb contends that he was afforded ineffective
assistance because counsel allegedly failed to investigate and
properly prepare a defense.
Newcomb first asserts that an
illegal search and seizure occurred when the KSP took telephone
recording devices across state lines,5 and used those devices
when the CI permitted his telephone call to Newcomb to be taped.
However, Newcomb is not entitled to relief on this ground, as
this scenario fits squarely within the facts of Carrier v.
Commonwealth,6 in which a panel of this court rejected a claim
that the Fourth Amendment was violated when a government agent
3
466 U.S. at 689, 104 S.Ct. at 2054.
4
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203
(1985).
5
The KSP entered Indiana where the CI placed a call from either his residence
or the residence of his girlfriend.
6
607 S.W.2d 115, 117 (Ky.App. 1980).
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recorded the defendant’s conversation with a government
informant who consented to the recording.
Newcomb also contends that trial counsel provided
ineffective assistance by failing to seek suppression of the
taped evidence on the ground that the KSP violated 18 U.S.C.
§2512(1)(a) by carrying a recording device across state lines
and thus into interstate commerce.
However, as noted by the
Commonwealth, the KSP acted within an exception provided by 18
U.S.C §2512(2)(b), which permits
an officer, agent, or employee of. . . a
State, or a political subdivision thereof,
in the normal course of the activities of
. . . a State, or a political subdivision
thereof, to . . . send or carry in
interstate or foreign commerce, or
manufacture, assemble, possess, or sell any
electronic, mechanical, or other device
knowing or having reason to know that the
design of such device renders it primarily
useful for the purpose of the surreptitious
interception of wire, oral, or electronic
communications.
Given this exception, grounds did not exist to support
suppression of the evidence under 18 U.S.C. §2512, and counsel
did not provide ineffective assistance by failing to seek
suppression on this ground.
Next, Newcomb contends counsel provided ineffective
assistance by advising him to plead guilty to second-degree
escape, which occurs when a person who is “charged with or
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convicted of a felony, . . . escapes from custody.”7
However,
since a paroled defendant continues to be held on the felony
charge(s) which underlies the parole8 and Newcomb escaped from
custody while on parole for a felony conviction, it follows that
the escape charge against him was not inappropriate.
Further,
since Newcomb was facing ten to twenty years’ imprisonment upon
conviction of the remaining counts, the negotiated plea of five
years’ imprisonment clearly worked to his advantage and does not
support his claim that he was afforded ineffective assistance of
counsel.
Newcomb next contends that counsel provided
ineffective assistance by failing to seek suppression of the
fruits of the search of his impounded vehicle because
insufficient evidence existed for the issuance of a search
warrant.
Newcomb also claims that because the warrant was
issued by the trial judge who presided over other pending drug
charges against him, the warrant was not issued by a neutral
party.
We disagree.
In Illinois v. Gates,9 the United States Supreme Court
described the totality of the circumstances test as follows:
7
KRS 520.030.
8
Brown v. Department of Welfare, Division of Probation and Parole, 351 S.W.2d
183, 184-85 (Ky. 1961).
9
462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).
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The task of the issuing magistrate is simply
to make a practical, common-sense decision
whether, given all the circumstances set
forth in the affidavit before him, including
the "veracity" and "basis of knowledge" of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
particular place. And the duty of a
reviewing court is simply to ensure that the
magistrate had a "substantial basis for
. . . conclud[ing]" that probable cause
existed.
Probable cause was defined by the United States Supreme Court in
Texas v. Brown10 as involving:
a flexible, common-sense standard. It merely
requires that the facts available to the
officer would "warrant a man of reasonable
caution in the belief," that certain items
may be contraband or stolen property or
useful as evidence of a crime; it does not
demand any showing that such a belief be
correct or more likely true than false. A
"practical, nontechnical" probability that
incriminating evidence is involved is all
that is required.
Newcomb’s contention that the underlying affidavit did
not set out substantial evidence upon which a neutral party
could issue the search warrant is not supported by the record.
The affidavit was prepared by the sheriff who took Newcomb into
custody and took possession of the liquid removed from Newcomb’s
pocket.
Once the liquid was determined to be cocaine, the
sheriff prepared an affidavit to support the issuance of a
search warrant for Newcomb’s impounded vehicle.
10
The sheriff’s
460 U.S. 730, 742, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983).
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belief that the vehicle might contain other contraband met the
standard of common sense reasoning described in Brown.
Further, nothing in the record supports Newcomb’s
assertion that the trial judge who issued the warrant was
nothing more than a “rubber stamp” for the sheriff.
Contrary to
Newcomb’s contention, the mere fact that the issuing judge also
presided over another drug trafficking case against Newcomb does
not indicate that the judge was anything other than impartial
and unbiased.
More specifically, no evidence existed of
judicial partiality such as that resulting from a judge’s
involvement in police or prosecutorial activities,11 or emanating
“from some ‘extrajudicial source’ rather than from participation
in judicial proceedings.”12
Newcomb is not entitled to relief on
this ground.
Next, we are not persuaded by Newcomb’s claims that
the circuit court erred during the RCr 11.42 proceeding by
denying him an evidentiary hearing, by failing to appoint
counsel, by failing to make written findings of fact in
11
See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
(1971) (the issuing magistrate was a state attorney general who was
personally in charge of investigating a murder, and who later acted as chief
prosecutor at trial); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct.
2319, 60 L.Ed.2d 920 (1979) (the issuing magistrate was a town justice who
accompanied the investigating officers to the scene of the crime to help in
enforcing the warrant).
12
Demjanjuk v. Petrovsky, 776 F.2d 571, 577 (6th Cir. 1985).
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accordance with RCr 52.01, or by denying his motion seeking
copies of particular court records.
RCr 11.42(5) states:
Affirmative allegations contained in the
answer shall be treated as controverted or
avoided of record. If the answer raises a
material issue of fact that cannot be
determined on the face of the record the
court shall grant a prompt hearing and, if
the movant is without counsel of record and
if financially unable to employ counsel,
shall upon specific written request by the
movant appoint counsel to represent the
movant in the proceeding, including appeal.
(Emphasis added.)
Moreover, in Sanders v. Commonwealth13 the
Kentucky Supreme Court declared:
[A] RCr 11.42 movant is not automatically
entitled to an evidentiary hearing. An
evidentiary hearing is not required
concerning issues refuted by the record of
the trial court. Conclusionary allegations
which are not supported by specific facts do
not justify an evidentiary hearing because
RCr 11.42 does not require a hearing to
serve the function of a discovery
deposition.
(Internal citations omitted.)
Here, the record supports the circuit court’s
determination that Newcomb’s claims were refuted by the record,
and that he therefore was not entitled to an evidentiary
hearing.
Further, as “[i]t has been settled that a movant under
RCr 11.42 is not entitled to appointed counsel or to a hearing
13
89 S.W.3d 380, 385 (Ky. 2002).
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if his motion on its face does not allege facts which, if true,
render the judgment void,”14 it follows that the circuit court
did not err by failing to appoint counsel to represent Newcomb
during the RCr 11.42 proceeding below.
Newcomb contends that the trial court erred by failing
to provide written findings of fact.
Although the court’s
initial denial of Newcomb’s motion for RCr 11.42 relief stated
no grounds, the court’s supplemental order of denial stated:
IT IS FURTHER ORDERED AND ADJUDGED that the
Defendant’s Motion for RCr 11.42 relief is
hereby DENIED. Defendant’s Motion for an
evidentiary hearing on said Motion is also
hereby DENIED as the allegations in
Defendant’s Motion are determined on the
face of the record, and Defendant’s Motion
raises no material issues of fact which
require a hearing.
While it is true that the court's written findings of fact were
not extensive, we are not persuaded that in this case expanded
findings were necessary.
If the record is sufficiently clear to
answer any questions raised, a reviewing court may waive the
requirement of findings of fact and conclusions of law without
prejudicing the appellant.15
The court below determined, and we
agree, that all issues could be determined from the record and
14
Maggard v. Commonwealth, 394 S.W.2d 893, 894 (Ky. 1965).
15
Clark Mechanical Contractors, Inc. v. KST Equipment Co., 514 S.W.2d 680,
682 (Ky. 1974).
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that Newcomb’s motion raised no material issues of fact which
required determination.
No further findings were necessary.
Next, we are not persuaded by Newcomb’s contention
that the circuit court erred by failing to grant his request for
copies of court records relating to both the October 1999
suppression hearing and the hearing regarding his RCr 11.42
motion.
Although the court’s initial order denying Newcomb’s
RCr 11.42 motion erroneously stated that a hearing had been
held, the court subsequently entered another order correcting
the misstatement.
As no hearing on the RCr 11.42 motion
occurred, the court did not err by failing to order the
production of records pertaining to such a hearing.
Further, Newcomb has provided this court with no
authority to support his request for copies of court records
relating to the suppression hearing.
In the case of Gilliam v.
Commonwealth16 the Kentucky Supreme Court held that an indigent
defendant is entitled to a copy of court records only if his RCr
11.42 motion establishes a valid basis for relief.
Here, the
record supports the trial judge’s determination that the grounds
for relief described in Newcomb’s motion could be conclusively
resolved on the face of the record.
The judge, therefore, did
not err by denying Newcomb’s request for records relating to his
suppression hearing.
16
652 S.W.2d 856, 859 (Ky. 1983).
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Newcomb next claims that he was afforded ineffective
assistance when trial counsel failed to seek consolidation of
drug possession and drug trafficking charges against him in
Action No. 99-CR-66, because possession is a lesser included
offense of trafficking.
The record discloses that the
possession charge was dismissed prior to Newcomb’s guilty plea.
Thus, Newcomb’s claim has no merit.
Similarly, we are not persuaded by Newcomb’s argument
that the two counts of possession of a controlled substance in
the first degree under indictment number 99-CR-77 violated the
double jeopardy clause of the Fifth Amendment.
Any double
jeopardy concerns were resolved by dismissal of one of the
possession charges prior to Newcomb’s guilty plea.
Finally, Newcomb claims that counsel provided
ineffective assistance by failing to seek suppression of his
courthouse arrest because the sheriff had no written statement
from his parole officer authorizing his arrest.
However, as the
record in fact shows that a probation and parole detainer was
issued for Newcomb’s arrest before the courthouse arrest
occurred, Newcomb’s contention is without merit.
The circuit court’s orders are affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rodney Newcomb, Pro Se
Fredonia, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, Kentucky
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