HOLLAND (CARL DOUGLAS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 23, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001410-MR
CARL DOUGLAS HOLLAND
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE ROBERT J. HINES, JUDGE
ACTION NO. 02-CR-00339
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.
VANMETER, JUDGE: Carl Holland appeals pro se from an order of the
McCracken Circuit Court denying Holland’s motion for post-conviction relief
pursuant to RCr1 11.42. For the following reasons, we affirm.
Holland was convicted by a McCracken County jury of first-degree
burglary, three counts of first-degree wanton endangerment, first-degree
1
Kentucky Rules of Criminal Procedure.
possession of a controlled substance, and being a first-degree persistent felony
offender (PFO). He was sentenced to a total of twenty years’ imprisonment. On
direct appeal, the Kentucky Supreme Court affirmed his conviction and sentence.2
Thereafter, Holland filed a timely motion to vacate his conviction
pursuant to RCr 11.42 on the ground that he received ineffective assistance of
counsel. The trial court denied his motion without conducting an evidentiary
hearing. Holland appealed.
Holland contends that he received ineffective assistance because his
counsel failed to inform him of a plea bargain offer made by the Commonwealth in
September 2003, whereby the count of first-degree PFO would be amended to
second-degree PFO. Holland claims that had he known of the September plea
offer, he would have accepted it. Instead, on the day of his trial, Holland had to
choose between accepting the Commonwealth’s current offer, which retained the
count of first-degree PFO, or proceeding to trial. Holland chose the latter.
To prove ineffective assistance of counsel, Holland must show: (1)
that his counsel’s representation was deficient in that it fell below an objective
standard of reasonableness, measured against prevailing professional norms; and
(2) that he was prejudiced by such deficient performance. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984);
Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985) (adopting Strickland
standard).
2
Holland v. Commonwealth, Appeal No. 2004-SC-0111, 2005 WL 2045375 (August 25, 2005).
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Under the first prong of Strickland, review of defense counsel’s
performance begins with the
[S]trong presumption that counsel acted reasonably and
effectively. [The court] must also recognize that a
defendant is not guaranteed errorless counsel or counsel
that can be judged ineffective by hindsight, but rather
counsel rendering reasonably effective assistance. Finally,
[the court] must consider the totality of evidence before
the jury and assess the overall performance of counsel
throughout the case in order to determine whether the
identified acts or omissions overcome the presumption
that counsel rendered reasonable professional assistance.
Mills v. Commonwealth, 170 S.W.3d 310, 328 (Ky. 2005)(internal citations
omitted).
Here, the plea offers were discussed at bench conferences on the day
of Holland’s trial. A review of these proceedings reveals that between the date of
the September plea offer and the trial, Holland was indicted on a federal charge of
possession of a handgun. During the bench conferences, Holland indicated that he
would have accepted the offer in September if he had known he would later be
facing a separate federal charge, in effect acknowledging that he had been aware of
the September plea offer. Defense counsel acknowledged on the record that she
had a copy of the September offer, and Holland attached a copy of the plea offer as
an exhibit to his appellate brief. Clearly, the offer existed and Holland declined it.
Thus, the facts fail to support Holland’s allegation that his counsel did not inform
him of the plea offer and thus rendered deficient performance under the first prong
-3-
of Strickland. As a result, the merits of Holland’s argument under the second
prong of Strickland need not be addressed.
Holland further argues that the court should have conducted an
evidentiary hearing to address his motion for post-conviction relief. A trial court
shall conduct such a hearing if the Commonwealth’s answer to the motion for
relief “raises a material issue of fact that cannot be determined on the face of the
record[.]” RCr 11.42(5); See Bowling v. Commonwealth, 981 S.W.2d 545, 549
(Ky. 1998). Since the record shows that Holland knew of, but declined, the
September plea offer, no material issue of fact exists which could not be
determined on the face of the record. Hence, the court did not err by denying his
motion for an evidentiary hearing.
The order of the McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Carl Douglas Holland, Pro se
Burgin, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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