ROBERT E. ADAMS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 18, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000066-MR
ROBERT E. ADAMS
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 01-CR-00007
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Robert E. Adams has appealed from an order
entered by the Morgan Circuit Court on December 10, 2003, which
denied his pro se motion to vacate, set aside, or correct his
sentence pursuant to RCr1 11.42, without an evidentiary hearing.
Having concluded that that the circuit court erred by rejecting
Adams’s claim of ineffective assistance of counsel without
holding an evidentiary hearing, we must vacate the trial court’s
order and remand for further proceedings.
1
Kentucky Rules of Criminal Procedure.
On November 26, 2003, Myles Holbrook, a friend of
Adams, hit Adams’s girlfriend in the arm with his fist.
When
Adams and his girlfriend went to the police department, they
were told that in order to file charges against Holbrook they
must contact the County Attorney.2
Adams and his girlfriend
returned to the mobile home that Adams and his mother, Anna May
Adams, lived in and discovered that it had been burglarized.
Adams suspected Holbrook was the intruder, so he drove to
Holbrook’s house as quickly as possible.
When Adams arrived at
Holbrook’s house, where Holbrook resided with his mother,
Cynthia Holbrook, he went to the back door and knocked very
hard.
Adams claimed that since no one answered his repeated
knocks, he returned to his car and drove home.
After Adams left his mobile home in search of
Holbrook, his mother telephoned the West Liberty Police
Department and reported that Adams was “coming to [the Holbrook]
residence and he [is] mad.”
According to the police department
records, the following calls were received by the police
department:
13:46:50, Anna May Adams reporting burglary and
that her son is in route to the Holbrook residence; 13:56:04,
Anna May Adams advises that her son has returned; 14:01:38, the
Holbrook house is reported to be on fire.
2
At the time Adams
No charges were subsequently filed against Holbrook in this matter.
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returned to his mobile home, a voice on the 9-1-1 tape, at
13:56:04, stated “I done burn it.”
On January 20, 2001, a Morgan County grand jury
indicted Adams on one count of arson in the second degree3 and
one count of burglary in the second degree.4
Pursuant to the
Commonwealth’s offer, Adams moved to withdraw his plea of not
guilty and to enter a plea of guilty to the amended charges of
arson in the third degree5 and burglary in the third degree.6
In
exchange for this plea, the Commonwealth recommended that his
seven-year sentence be diverted for a period of five years on
the condition that Adams pay restitution.7
Adams then admitted,
in writing, that “[o]n or about November 26, 2000, in Morgan
County [he] committed [arson in the third degree and burglary in
the third degree] by unlawfully entering the dwelling of Gary
and Cynthia Holbrook and starting a fire.”
After being placed under oath, Adams confirmed that he had read
the plea agreement forms and conferred with his trial counsel.
3
Kentucky Revised Statutes (KRS) 513.030.
4
KRS 511.030.
5
KRS 513.040.
6
KRS 511.040.
7
The Commonwealth recommended a five-year sentence to the amended charge of
arson in the third degree and a two-year sentence to the amended charge of
burglary in the third degree. The Commonwealth agreed to recommend diversion
for a period of five years on both convictions upon the submission of a
restitution plan, if eligible. The sentences for both convictions were to
run consecutively for a total of seven years.
-3-
He declared that he understood the plea agreement he had signed
and that he was satisfied with it.
Thereafter, on August 28, 2002, the Commonwealth moved
the trial court to revoke Adams’s diverted sentence upon the
grounds that he had been arrested on May 12, 2002, and charged
with criminal possession of a forged instrument in the second
degree, in violation of KRS 516.060, and possession of
marijuana, in violation of KRS 218A.1422.8
Adams was
subsequently indicted by a Morgan County grand jury on the
forgery charge.9
The Commonwealth’s motion asked that Adams’s
pretrial diversion be revoked and that he be incarcerated for a
period of seven years, pursuant to the terms of his plea
agreement.
The Morgan Circuit Court entered an order on September
30, 2002, granting the Commonwealth’s motion to revoke diversion
based on Adams’s violation of the plea agreement.
On August 28,
2003, Adams filed a pro se RCr 11.42 motion to vacate his
sentence, accompanied by a motion for a full evidentiary
hearing.
On October 1, 2003, he filed a motion for default
judgment.
On December 10, 2003, the trial court entered an
8
At the time of his arrest, Adams was allegedly in possession of a bag of
marijuana and a forged check for $100.00. The check was drawn on the account
of the Southfork Cemetery at the Commercial Bank. Adams allegedly presented
this check for negotiation to the Go-Go Market in West Liberty, Kentucky, on
April 8, 2002.
9
KRS 516.060(2) states: “Criminal possession of a forged instrument in the
second degree is a Class D felony.”
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order denying Adams’s RCr 11.42 motion without an evidentiary
hearing.
This appeal followed.
Adams claims that defense counsel rendered ineffective
assistance:
(1) by failing to obtain a ruling on a pending
motion to suppress the 9-1-1 recording; (2) by neglecting to
explain the essential elements of the relevant crimes; and (3)
by failing to investigate Adams’s defense of actual innocence.
In order to establish ineffective assistance of
counsel, a person must satisfy a two-part test showing that
counsel’s performance was deficient and that the deficiency
caused actual prejudice resulting in a proceeding that was
fundamentally unfair and unreliable.10
The burden is on the
movant to overcome a strong presumption that counsel’s
assistance was constitutionally sufficient or that under the
circumstances, counsel’s action might be considered “trial
strategy.”11
In cases involving a guilty plea, the standard of
review is slightly different because a movant must show
counsel’s performance was deficient and “there is a reasonable
10
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Foley v.
Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
11
Strickland, 466 U.S. at 689; Moore v. Commonwealth, 983 S.W.2d 479, 482
(Ky. 1998).
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probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”12
“‘A defendant is not guaranteed errorless counsel, or
counsel adjudged ineffective by hindsight, but counsel
reasonably likely to render and rendering reasonably effective
assistance.’”13
A court must be highly deferential in reviewing
defense counsel’s performance and should avoid second-guessing
counsel’s actions.14
The standard of assessing counsel’s
performance is whether the alleged acts or omissions were
outside the wide range of prevailing professional norms based on
an objective standard of reasonableness.15
“‘A fair assessment
of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct and to
evaluate the conduct from counsel’s perspective at the time. . .
. ’”16
12
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
See also Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App. 1986).
13
Sanborn v. Commonwealth, 975 S.W.2d 905, 911 (Ky. 1998) (quoting McQueen v.
Commonwealth, 949 S.W.2d 70 (Ky. 1997)).
14
Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v.
Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
15
Strickland, 466 U.S. at 688-89; Tamme, 83 S.W.3d at 470; Commonwealth v.
Pelphrey, 998 S.W.2d 460, 463 (Ky. 1999).
16
Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky. 2003)(quoting Strickland,
supra).
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In order to establish actual prejudice, a movant must
show a reasonable probability that the outcome of the proceeding
would have been different but for the deficient assistance, or
that the outcome was rendered fundamentally unfair and
unreliable.17
The Supreme Court of Kentucky has held that it is
not ineffective assistance for counsel to advise a client to
plead guilty in order to obtain a lesser sentence.18
In
addition, it is not ineffective assistance for counsel to advise
a client to plead guilty to a charge that the defendant may not
have been properly convicted of had the defendant proceeded to
trial, as long as the total sentence received was less than the
defendant may have received had he been convicted.19
Adams claims his attorney was ineffective by failing
to obtain a ruling on his motion to suppress the 9-1-1 tape
before allowing Adams to enter the guilty plea.
On February 4,
2002, Adams’s counsel moved the trial court to suppress the 9-11 tapes from evidence at trial.
Thereafter, on February 6,
2002, Adams and the Commonwealth entered into an agreement for
Adams to plead guilty in exchange for a lesser sentence.
Adams
claims that counsel’s failure to obtain a ruling on the pending
17
Strickland, 466 U.S. at 694-95. See also Bowling v. Commonwealth, 80
S.W.3d 405, 412 (Ky. 2002); and Foley, 17 S.W.3d at 884.
18
Commonwealth v. Campbell, 415 S.W.2d 614 (Ky. 1967).
19
Russell v. Commonwealth, 992 S.W.2d 871 (Ky.App. 1999).
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motion to suppress before allowing him to enter a guilty plea
was ineffective assistance of counsel.
In Fraser v. Commonwealth,20 our Supreme Court
addressed the proper procedure that a trial court must follow
when ruling on motions for an evidentiary hearing under RCr
11.42.
Fraser holds that it is incumbent upon the trial court
to determine whether the allegations in the motion can be
resolved on the face of the record.
hearing is not required.
If so, an evidentiary
However, a hearing is required if
there is a material issue of fact that cannot be conclusively
resolved by an examination of the record alone.
Adams claims that if the trial court had granted his
motion to suppress the tapes, he would not have entered the
guilty plea.
Therefore, he claims his guilty plea was not
knowingly, intelligently, and voluntarily entered.
This matter
could have easily been concluded prior to Adams’s entering a
plea of guilty, if the Commonwealth’s plea offer had included
the withdrawal of the suppression motion, or by trial counsel’s
withdrawal of the pending motion to suppress.
Nevertheless,
these avenues were either not explored, or if they were, there
is nothing in the record to support withdrawal of the motion to
suppress.
In order for a guilty plea to be constitutional, the
terms of the plea agreement must be properly discussed by trial
20
59 S.W.3d 448 (Ky. 2001).
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counsel with the defendant and the trial court must determine
that the plea was intelligently entered.
Since pleading guilty involves the waiver of
several constitutional rights, including the
privilege against compulsory selfincrimination, the right to trial by jury,
and the right to confront one’s accusers, a
waiver of these rights cannot be presumed
from a silent record. The court must
question the accused to determine that he
has a full understanding of what the plea
connotes and of its consequences, and this
determination should become part of the
record.21
Since the record is void of any indication as to what
discussions occurred between Adams and his trial counsel before
the entry of his guilty plea, the trial court was required to
hold an evidentiary hearing to determine whether Adams
understood the terms of the plea agreement.
As to Adams’s other claims of ineffective assistance
of counsel, we determine these could also be more thoroughly
examined through an evidentiary hearing.
Adams claims that his
trial counsel did not explain to him the elements of the
offenses for which he pled guilty and that his trial counsel
failed to adequately investigate the possible defense of actual
innocence before negotiating a plea agreement with the
Commonwealth.
Although these claims are not set forth with the
21
Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky.App. 1990) (citing Boykin v.
Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969));
Sparks, 721 S.W.2d at 726.
-9-
specificity required by RCr 11.42(2),22 since we are remanding
for an evidentiary hearing, these matters should also be
addressed at the evidentiary hearing.
Due to the minimal record
in this case, we cannot determine whether Adams has grounds to
support these claims.
In sum, the record does not conclusively refute
Adams’s claim that he was denied the effective assistance of
counsel by entering his guilty plea before a decision was made
by the trial court regarding the motion to suppress the 9-1-1
recordings.
Thus, Adams is entitled to an evidentiary hearing
on that claim and the trial court erred when it denied Adams’s
motion without an evidentiary hearing.
At the evidentiary
hearing, the trial court should also allow evidence concerning
trial counsel explaining to Adams the elements of the crimes at
issue and any investigation of his claim of innocence.
For the foregoing reasons, the December 10, 2003,
order of the Morgan Circuit Court is vacated, and this matter is
remanded for an evidentiary hearing.
ALL CONCUR.
22
RCr 11.42(2) states, in relevant part: “The motion shall be signed and
verified by the movant and shall state specifically the grounds on which the
sentence is being challenged and the facts on which the movant relies in
support of such grounds. Failure to comply with this section shall warrant a
summary dismissal of the motion.”
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Adams, Pro Se
Beattyville, Kentucky
Gregory D. Stumbo
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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