CARPENTER (JEFFERY L.) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: AUGUST 21, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-000519-MR JEFFERY L. CARPENTER v. APPELLANT APPEAL FROM BUTLER CIRCUIT COURT HONORABLE RONNIE C. DORTCH, JUDGE ACTION NO. 00-CR-00042 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: FORMTEXT LAMBERT AND TAYLOR, JUDGES; HENRY, SENIOR JUDGE. TAYLOR, JUDGE: Jeffery Carpenter brings this appeal from a February 6, 2008, order of the Butler Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his sentence of imprisonment. We affirm. On August 10, 2000, Carpenter was indicted upon thirty-one counts of sexual abuse in the first degree with a minor under the age of twelve. Kentucky Revised Statutes (KRS) 510.110. The sexual abuse charges arose from incidents involving Carpenter’s alleged abuse of the daughter of his ex-wife, Virginia.1 Pending trial upon the sexual abuse charges, Carpenter was additionally charged with being a persistent felony offender (PFO) in the first degree.2 Pursuant to a motion by the Commonwealth, the indictment upon the thirty-one counts of sexual abuse and the indictment upon the PFO charge were consolidated. After the consolidation, Carpenter filed a motion to dismiss the indictment. The Commonwealth agreed to dismiss all charges against Carpenter except two counts of sexual abuse in the first degree and the PFO I charge. Following a jury trial, Carpenter was found guilty of one count of first-degree sexual abuse and of being a first-degree PFO; he was sentenced to fifteen-years’ imprisonment. Carpenter’s conviction was affirmed by this Court in an opinion rendered June 10, 2005 (Appeal No. 2003-CA-001005-MR). The Kentucky Supreme Court subsequently denied discretionary review. During the pendency of the direct appeal, Carpenter filed a motion pursuant to RCr 11.42. The trial court denied the motion without a hearing. By opinion and order rendered March 2, 2007, in Appeal No. 2004-CA-000971-MR, this Court vacated and remanded to the trial court. This Court specifically stated: 1 After Jeffery L. Carpenter and Virginia divorced, the couple reconciled and separated on numerous occasions. At the time of the incidents resulting in the sexual abuse charges, Carpenter and Virginia were living together. The victim was Virginia’s daughter from another relationship. Carpenter and Virginia also had two children together, one son and one daughter. 2 The PFO charge was the result of previous felony convictions that were discovered during another trial upon other unrelated charges. -2- Carpenter freely admits that he filed his RCr 11.42 motion while the direct appeal of his conviction was already pending before this Court. Apparently because the majority of the trial court's record accompanied the direct appeal, the record that accompanied this appeal is woefully inadequate to the task before us. . . . [T]he lack of both a record and any detailed findings by the trial court has rendered it impossible for us to determine whether the trial court's decision comports with the requirements of Fraser v. Commonwealth . . . . [Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).] Under such circumstances, we simply are left with no alternative but to vacate the trial court's January 22, 2004, judgment and remand this matter for further proceedings so that Carpenter's motion can be reconsidered in light of a full record and the standard set forth in Fraser. Upon remand, Carpenter filed a pro se motion to supplement the RCr 11.42 motion. The trial court appointed counsel and conducted an evidentiary hearing. Following the hearing, the trial court entered an order denying Carpenter’s RCr 11.42 motion on February 6, 2008. This appeal follows. Carpenter contends the trial court erred by denying his RCr 11.42 motion. Specifically, Carpenter asserts that his trial counsel was ineffective for failing to “investigate and secure the testimony of Jennifer and Lisa Anderson.” Carpenter alleges that he provided trial counsel with the names of Lisa Anderson (his sister) and Jennifer Anderson (his niece), that trial counsel did not interview them, and did not call them to testify at his trial. Carpenter further maintains that Lisa and Jennifer provided “exculpatory information that would have . . . strengthened his theory of the defense.” In particular, Carpenter points out that -3- Lisa and Jennifer testified at the evidentiary hearing that Virginia had convinced her daughter, the victim, to fabricate the sexual abuse allegations against Carpenter in an attempt to prevent Carpenter from gaining custody of the couple’s son. If Lisa and Jennifer had testified during his trial, Carpenter maintains that there exists a reasonable probability that he would have been found not guilty. To prevail upon a claim of ineffective assistance of counsel, an appellant must demonstrate that trial counsel’s performance was deficient and that such deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate that the deficiency was prejudicial, there must exist a reasonable probability that but for counsel’s deficiency the result of the proceedings would have been different. Id. At the evidentiary hearing, Carpenter’s trial counsel testified at length. Trial counsel maintained that he was representing Carpenter in three different criminal cases around the time of the trial on the sexual abuse charges. Trial counsel stated that he and Carpenter discussed Carpenter’s theory of his defense in the sexual abuse case. Carpenter believed Virginia had “set him up” and that she instructed her daughter, the victim, to fabricate the allegations. Relevant to Carpenter’s assertion on appeal, trial counsel claimed that he only received two witness lists from Carpenter and that both lists contained the same six names. However, trial counsel was adamant that neither witness list provided by Carpenter contained the names of Lisa or Jennifer Anderson. And, there was not any -4- evidence introduced at the evidentiary hearing indicating that trial counsel was otherwise put on notice as to Lisa or Jennifer’s prospective testimony. In this case, it is clear that the trial court found trial counsel’s testimony more credible than Carpenter’s testimony. It is well within the province of the fact-finder to weigh the credibility of witnesses’ testimony. Dunn v. Com., 151 S.W.2d 763 (Ky. 1941). Moreover, the evidence presented at the evidentiary hearing was more than sufficient to support the trial court’s finding that trial counsel conducted a reasonable investigation. Consequently, we cannot say that the trial court erred by concluding that trial counsel’s performance was not deficient. See Strickland, 466 U.S. 668. Thus, we hold that the trial court properly denied Carpenter’s RCr 11.42 motion to vacate sentence. For the foregoing reasons, the order of the Butler Circuit Court is affirmed. ALL CONCUR. -5- BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Melanie A. Foote Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELEE: Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky -6-

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