BUFORD (BARRY) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001081-MR BARRY BUFORD v. APPELLANT APPEAL FROM WARREN CIRCUIT COURT HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 07-CR-00364 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, KELLER, AND LAMBERT, JUDGES. CLAYTON, JUDGE: Appellant, Barry Buford (Buford), appeals the ruling of the Warren Circuit Court denying Buford’s pro se motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm. I. FACTUAL AND PROCEDURAL HISTORY On April 18, 2007, Buford was indicted on three counts of trafficking in a controlled substance first-degree and one count of persistent felony offender first-degree after he sold cocaine on three separate occasions to a woman acting as a police informant. Immediately prior to and after these controlled buys, the informant and her vehicle were inspected by two male police officers in order to protect the integrity of the evidence obtained. On April 30, 2007, an attorney employed by the Department of Public Advocacy, was appointed to represent Buford. On the same day, Buford entered a plea of not guilty to all counts of the indictment. On November 1, 2007, Buford appeared in court to change his plea and entered an Alford plea of guilty to one count of trafficking in a controlled substance first-degree. The other counts of the indictment were dismissed according to a plea agreement. Avoiding a sentence of twenty to fifty years or life imprisonment on each trafficking count, Buford was sentenced to fifteen years incarceration, without the possibility of parole, to run consecutively with a sentence from a prior conviction. At the November 1 hearing, the trial court conducted a lengthy plea colloquy to ensure that Buford was entering his guilty plea knowingly and voluntarily. Buford acknowledged that he could read and write, had graduated high school, and understood his plea agreement. He responded affirmatively when the judge asked him whether he was “satisfied” that his attorney “had a good working knowledge of the case.” Buford also -2- acknowledged that the advice his attorney had given him regarding the case was satisfactory. On March 21, 2008, Buford filed a pro se motion for post-conviction relief pursuant to RCr 11.42, claiming he had received ineffective assistance of counsel because: (1) his defense attorney had not satisfactorily investigated the circumstances of the controlled buy of cocaine; and (2) the attorney failed to file a motion to suppress the evidence obtained as a result of the undercover operation. Buford argues that the evidence obtained as a result of the controlled buy should have been challenged as inadmissible because the female informant was searched by male rather than female police officers before and after purchasing the cocaine and that she could have hidden the drugs on her body. He also notes that the money used during the controlled buy was never recovered, and that the police recordings do not establish that there had been a drug sale. Contradicting his statements at the colloquy, he argues that he was compelled to plead guilty because his attorney did little to investigate the charges against him and because his prior criminal history would have prejudiced the jury. The circuit court summarily denied Buford’s 11.42 motion without an evidentiary hearing, and Buford has appealed to this Court. II. STANDARD OF REVIEW Because the circuit court denied Buford's RCr 11.42 motion without an evidentiary hearing, our review is “whether the motion on its face states -3- grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.” Lewis v. Com., 411 S.W.2d 321, 322 (Ky. 1967). III. ANALYSIS In order to prevail on an ineffective assistance of counsel claim, a movant must prove that his counsel's performance was deficient and that the deficiency prejudiced the case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A reviewing court should be highly deferential in scrutinizing counsel’s performance and must evaluate the particular facts of the case and determine whether the acts or omissions were “outside the wide range of professionally competent assistance” to the extent that the errors caused the “adversarial testing process” not to work. Id. at 690, 104 S.Ct. at 2066. In order to show prejudice with respect to a guilty plea, a movant must show that counsel's deficient performance so seriously affected the case that – but for the deficiency – there is a reasonable probability the movant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 54 USLW 4006 (1985). In such cases, the basis for post-conviction relief is the legal fiction that the plea was not voluntary because it was induced by the incompetence of an attorney. Id. at 369. (“Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice ‘was within the range of competence demanded of attorneys in criminal cases.’”) Id. -4- There is no automatic entitlement to an evidentiary hearing with regard to an RCr 11.42 motion. Rather, “a hearing is required only if there is an issue of fact which cannot be determined on the face of the record.” Stanford v. Com., 854 S.W.2d 742, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669, 62 USLW 3452 (1994), RCr 11.42(5). Thus, if the official record conclusively contradicts the movant’s claim, no hearing must be held. Trice v. Com., 632 S.W.2d 458 (Ky. App. 1982). When the movant claims ineffective assistance of counsel for failure to present a specific argument, no evidentiary hearing is required if the record totally establishes that the argument would have been meritless. Freeman v. Com., 697 S.W.2d 133 (Ky. 1985). In this case, the Commonwealth incorrectly contends that Buford waived his right to appeal these issues when he pled guilty. On the contrary, by pleading guilty, Buford has waived the right to appeal only issues that should have been raised in the original proceeding, Thacker v. Com., 476 S.W.2d 838 (Ky. 1972), such as the admissibility of the evidence. He did not waive his right to appeal the effectiveness of his representation in investigating and addressing the admissibility of the evidence. Applying the standard of review, the issue on appeal in this case is whether the assertion by Buford that he was deprived of his right to effective assistance of counsel is conclusively refuted by the record, and if it is not refuted by the record, whether such an assertion would invalidate the conviction. Because this case never reached trial, there are few facts in the record to verify or contradict -5- Buford’s claims. However, as previously noted, the trial court conducted a lengthy plea colloquy pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), at which Buford acknowledged that he was aware of the ramifications of pleading guilty and did so voluntarily. He also stated that he was satisfied with the knowledge and advice of his attorney. We are of the opinion that Buford’s responses during the plea colloquy conclusively refute his assertion that he would not have pleaded guilty but for the supposed failures of his trial counsel. It is clear that his plea was made knowingly and voluntarily. His sentence was relatively light-handed and supports our determination that there was no prejudice in this case. Buford was unlikely to forego a lenient sentence in exchange for pursuing a specious legal argument to suppress evidence. Thus, even if the record did not conclusively refute Buford’s allegations of ineffective assistance, he would still not be entitled to an evidentiary hearing because the record demonstrates there to have been no prejudice here. IV. CONCLUSION For the foregoing reasons, the decision of the Warren Circuit Court is affirmed. ALL CONCUR. -6- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Barry Buford, pro se LaGrange, Kentucky Jack Conway Attorney General of Kentucky Michael L. Harned Assistant Attorney General Frankfort, Kentucky -7-

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