LARRY LEE HUGHES v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 21, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002302-MR
LARRY LEE HUGHES
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 05-CR-00072
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: MOORE AND STUMBO, JUDGES; ROSENBLUM,1 SENIOR JUDGE.
ROSENBLUM, SENIOR JUDGE: Larry Lee Hughes appeals from an order of the
McCracken Circuit Court denying his motion for post-conviction relief pursuant to RCr2
11.42. Because Hughes' allegation that he received ineffective assistance in connection
with trial counsel's failure to move to suppress evidence obtained by the police in two
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
2
Kentucky Rules of Criminal Procedure.
searches of his residence is not clearly refuted by the record, we vacate the trial court's
order denying his motion for relief and remand for an evidentiary hearing on the issue.
FACUTAL AND PROCEDURAL BACKGROUND
On January 11, 2005, Paducah police officers conducted a knock and talk at
the residence of Hughes and his wife, Ida. The police contend that Ida gave consent to
search the residence. In his RCr 11.42 motion Hughes maintained that she did not, or,
alternatively, that her consent was a result of coercion. He further maintains that even if
she did consent, the search was conducted over his repeated objections. In any event, the
police entered and searched the residence.
In the course of their search police discovered crack cocaine and baggie
corners. Based upon these discoveries, the police secured the residence, obtained a
warrant, and conducted a second search, during which additional crack cocaine was
discovered, along with additional drug paraphernalia.
Based upon the foregoing, on February 25, 2005, Hughes was indicted for
first-degree possession of a controlled substance, second offense; use/possession of drug
paraphernalia, second offense; and of being a first-degree persistent felony offender.
On May 24, 2006, Hughes entered into a plea agreement with the Commonwealth under
which the persistent felony offender charge would be dropped, and he would receive five
years' imprisonment on the remaining charges, to run concurrently.3 Final judgment was
entered in accordance with the plea agreement on May 25, 2006.
3
The guilty plea was entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160,
27 L.Ed.2d 162 (1970).
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On July 11, 2006, Hughes filed a pro se motion to vacate his sentence
pursuant to RCr 11.42. On September 21, 2006, the trial court entered an order denying
the motion. Hughes filed a motion requesting findings of fact concerning the trial court's
decision, which was likewise denied. This appeal followed.
DISCUSSION
Before us, Hughes contends that he received ineffective assistance of
counsel because trial counsel failed to investigate his case and interact with him; failed to
file a motion to suppress to contest the initial search of his residence; and because trial
counsel misadvised him resulting in his entry of a guilty plea that was not knowing,
intelligent, or voluntary.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the United States Supreme Court set forth the standard governing review of
claims of ineffective assistance of counsel. Under this standard, a party asserting such a
claim is required to show: (1) that the trial counsel's performance was deficient in that it
fell outside the range of professionally competent assistance; and (2) that the deficiency
was prejudicial because there is a reasonable probability that the outcome would have
been different but for counsel's performance. Id. at 687. This standard was adopted by
the Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
This test is modified in cases involving a defendant who enters a guilty
plea. In such instances, the second prong of the Strickland test includes the requirement
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that a defendant demonstrate that but for the alleged errors of counsel, there is a
reasonable probability that the defendant would not have entered a guilty plea, but rather
would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct.
366, 370, 88 L.Ed.2d 203 (1985); Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App.
1986).
A reviewing court must entertain a strong presumption that counsel's
challenged conduct falls within the range of reasonable professional assistance.
Strickland, 466 U.S. at 688-89. The defendant bears the burden of overcoming this strong
presumption by identifying specific acts or omissions that he alleges constitute a
constitutionally deficient performance. Id. at 689-90. The relevant inquiry is whether
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 undermine confidence in the outcome. Id. at 694.
FAILURE TO FILE MOTION TO SUPPRESS
We first consider Hughes' argument that he received ineffective assistance
because trial counsel failed to move to suppress the fruits of the two searches of his
residence which produced the evidence leading to his indictment. In his RCr 11.42
motion, Hughes describes the events surrounding the alleged consensual search following
the knock and talk as follows:
The detective alleges to have received consent to search
Movant's home. Movant's [sic] disputes this claim and
further states the detectives totally ignored his repeated
demands to exist [sic] his home, prior to finding any items of
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drug activity. The detectives (under color of law) used their
authority by commanding Movant and his wife (Ida Hughes)
into the front living-room. While one of the detectives were
[sic] busy moving around Movant's home in search of
evidence. Movant's wife, who has severe health problems,
got up to use the bathroom. Det. Gilbert then informed
Movant's wife that the bathroom has to be searched prior to
her using it. Movant again objected to the search of his house
and even informed the detectives of their lack of having a
search warrant. At that time things got a little heated and a
verbal confrontation between Movant and the detective
ensured, due to Movant exercising his constitutional rights to
not have his home searched without a warrant. In order to
calm the confrontation between Movant and the detectives
(who by then had called in for backup), Movant's wife stated
to him: “Larry, I want him to search.” This statement was
directed toward Movant and under no circumstances did it
give the detectives consent to search my home. Movant's
wife was talking to him when the statement was made. Thus,
in light of the totality of the circumstances, one must
conclude the consent was not obtained freely or voluntarily.
However, we do know the search was in violation of
Movant's constitutional rights.
The Fourth Amendment recognizes a valid warrantless entry and search of
premises when police obtain the voluntary consent of an occupant who shares, or is
reasonably believed to share, authority over the area in common with a co-occupant who
later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U.S. 177, 110
S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 94 S.Ct.
988, 39 L.Ed.2d 242 (1974).
To the Fourth Amendment rule ordinarily prohibiting the warrantless entry
of a person's house as unreasonable per se, Payton v. New York, 445 U.S. 573, 586, 100
S.Ct. 1371, 63 L.Ed.2d 639 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 454-455,
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91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), one “jealously and carefully drawn” exception,
Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958),
recognizes the validity of searches with the voluntary consent of an individual possessing
authority, Rodriguez, 497 U.S., at 181, 110 S.Ct. 2793. That person might be the
householder against whom evidence is sought, Schneckloth v. Bustamonte, 412 U.S. 218,
222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), or a fellow occupant who shares common
authority over property, when the suspect is absent, Matlock, supra, at 170, 94 S.Ct. 988,
and the exception for consent extends even to entries and searches with the permission of
a co-occupant whom the police reasonably, but erroneously, believe to possess shared
authority as an occupant, Rodriguez, supra, at 186, 110 S.Ct. 2793.
Under the facts as described by Hughes in his motion, there is a cognizable
argument that no consent was given by either Hughes or his wife (or else was coerced) to
search the residence. Further, Hughes maintains that even if his wife did consent, the
consent was over his objection. In Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515,
164 L.Ed.2d 208 (2006), decided March 22, 2006, two months prior to the entry of
appellant's guilty plea, the United States Supreme Court held that a warrantless search is
unreasonable as to a defendant who was physically present and expressly refused to
consent to the search, even if a co-occupant with authority to consent gives her consent to
search. Hence, even if Ida did voluntarily consent to the search, if Hughes objected (as
he states in his motion) then the initial search was nevertheless illegal, as to the appellant,
under Randolph.
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If the facts are as stated by Hugues in his RCr 11.42 motion - and we may
not simply disbelieve his version of the facts - there was a valid basis upon which to seek
suppression of the evidence obtained both as to the search conducted in connection with
the talk and knock (because the search was nonconsenual, coerced, or in violation of
Georgia v. Randolph) and in connection with the subsequent search pursuant to a warrant
(because the information underlying the warrant was obtained in the illegal first search).
An evidentiary hearing upon an RCr 11.42 motion “is required if there is a
material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or
disproved, by an examination of the record. The trial judge may not simply disbelieve
factual allegations in the absence of evidence in the record refuting them.” Fraser v.
Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001).
Hughes' version of events is not conclusively refuted by the record. Thus,
accepting Hughes' version of events as true, trial counsel's representation was deficient
because no motion was filed seeking suppression of the evidence. Further, Hughes was
prejudiced by the deficient performance because if the fruits of the two searches were
suppressed, there is a reasonable probability that Hughes would not have entered into his
guilty plea, but instead would have gone to trial.
In summary, Hughes has stated a prima facie violation of Strickland which
is not refuted by the record. As such, we vacate the circuit court's summary denial of the
motion and remand for an evidentiary hearing on the suppression issue.
LACK OF INVESTIGATION AND INTERACTION WITH CLIENT
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Hughes also contends that he received ineffective assistance of counsel on
the basis that trial counsel failed to properly investigate his case and failed to interact
with him. More specifically, Hughes alleges that trial counsel “at no time [spoke] with
him concerning the facts of the case”; that “the few conversations he did have with his
attorney consisted of the attorney trying to convince him to plead guilty”; and that trial
counsel “failed to follow even the basic guidelines for investigation on the behalf of his
client in the instant case.” We begin by noting that our discussion of this argument
excludes in all respects any overlap with the suppression issue as discussed above, and is
intended to address the argument only as it relates to issues other than Hughes'
suppression argument.
Counsel has a duty to conduct a reasonable investigation, including
defenses to the charges. In evaluating whether counsel has discharged this duty to
investigate, develop, and present such defenses, Kentucky has adopted a three-part
analysis. Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001). First, it must be
determined whether a reasonable investigation should have uncovered the defense. Id. If
so, then a determination must be made whether the failure to raise this defense was a
tactical choice by trial counsel. Id. Counsel's tactical choice must be given a strong
presumption of correctness, and the inquiry is generally at an end. Id. If the choice was
not tactical and the performance was deficient, then it must be determined whether there
is a reasonable probability that, but for counsel's unprofessional errors, the result would
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have been different. Id.; see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156
L.Ed.2d 471 (2003).
However, “RCr 11.42 exists to provide the movant with an opportunity to
air known grievances, not an opportunity to conduct a fishing expedition for possible
grievances, and post-conviction discovery is not authorized under the rule. Mills v.
Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005) (footnotes omitted).
Here, Hughes has failed to identify any particular witnesses who would
have been helpful to his defense who were not interviewed by trial counsel, what
information they may have regarding the case, or what their testimony would have been.
Nor has he identified any particular evidence that additional investigation and/or
interaction would have unveiled. In short, Hughes' allegation concerning failure to
investigate and failure to interact with him amounts to no more than a fishing expedition,
and the claim is outside the scope of RCr 11.42. Mills, supra.
VOLUNTARINESS OF PLEA
In his last argument Hughes contends that his guilty plea was not knowing,
intelligent, and voluntary because trial counsel failed to inform him of available defenses.
As discussed above, we agree with this argument to the extent that trial counsel failed to
pursue suppression. However, aside from the suppression issue, Hughes has failed to
identify any other failures of trial counsel which would merit post-conviction relief.
In addition, Hughes signed a motion to enter a guilty plea where he stated
he had a full understanding of the charges against him and any defenses. The trial court
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engaged in a colloquy with Wilson and was satisfied there was a factual basis for the plea
and that it was entered into in a knowing and intelligent manner. Thus this argument is
refuted by the record.
As such, with the exception of the suppression issue, we find this argument
to be without merit.
CONCLUSION
For the foregoing reasons we vacate the judgment of the McCracken Circuit
Court summarily denying the appellant's motion for post-conviction relief and remand for
additional proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rachelle N. Howell
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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