DOBSON (ROBERT L.) 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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-002167-MR ROBERT L. DOBSON v. APPELLANT APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 03-CR-00803 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR JUDGE. HARRIS, SENIOR JUDGE: Robert L. Dobson appeals from the denial of his motion to vacate his conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 following an evidentiary hearing. He argues that counsel was 1 Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. ineffective for failing to adequately investigate the actual value of stolen items. We affirm. Dobson was indicted on charges of receiving stolen property valued over $300 and for being a first-degree persistent felony offender (PFO). Dobson pled guilty to these charges. In accordance with the plea agreement, he received a sentence of one year of imprisonment on the receiving stolen property charge enhanced to 10 years of imprisonment on the PFO charge. Subsequently, Dobson, pro se, filed a motion pursuant to RCr 11.42, alleging that counsel was ineffective for failing to investigate the actual value of the stolen property that he received. The trial court denied the motion without an evidentiary hearing. On appeal, this Court, in a 2 to 1 decision, remanded the matter for an evidentiary hearing to determine the value of the property in question. Dobson v. Commonwealth, 2006CA-000236-MR (rendered August 3, 2007). On remand, the trial court conducted an evidentiary hearing and again denied Dobson’s RCr 11.42 motion. This appeal followed. Dobson argues that the failure of counsel to adequately investigate the actual value of the property he received constituted ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, the defendant must demonstrate: (1) that counsel made errors so serious that counsel’s performance fell outside the wide range of professionally competent assistance; and (2) that the deficient -2- performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58 S.W.3d 482, 486-7 (Ky. 2001). The trial court must evaluate the circumstances surrounding the plea to determine whether the plea was made voluntarily and to “evaluate whether errors by trial counsel significantly influenced the defendant’s decision to plead guilty in a manner which gives the trial court reason to doubt the voluntariness and validity of the plea.” Id. at 487. On the form entitled “Waiver of Further Proceedings with Petition to Enter Plea of Guilty,” which Dobson signed, he admitted the following: 7. I have received a copy of the Indictment before being called upon to plead, and have read the Indictment and discussed it with my attorney and fully understand every charge made against me in this case. I am the same person named as the Defendant in the Indictment. .... 12. My attorney has explained to me the elements of the offense(s) with which I am charged and the elements of any lesser included offense(s), and I fully understand what facts the Commonwealth would have to prove beyond a reasonable doubt in order to convict me of the crime(s) of RSP, PFO 1st. .... 18. I declare that I offer my plea of “Guilty” freely and voluntarily of my own accord and with full understanding of all the matters set forth in the Indictment and in this petition and in the certificate of counsel which is attached to this petition. -3- The trial court conducted a plea colloquy on the record. The trial court read Dobson his constitutional rights, and Dobson stated that he understood that he was waiving those rights by pleading guilty. Dobson stated that he committed the offense of receiving stolen property over $300 because he had traded drugs for jewelry that he believed to be stolen. Dobson stated that he understood that he was pleading guilty to a felony. Dobson stated that he had sufficient time to consult with counsel and that he had no complaints regarding the services of his counsel. Dobson stated that his plea was voluntary and willing. It is well-settled law in this Commonwealth that by entering a guilty plea, the defendant “admits the factual accuracy of the various elements of the offenses with which he is charged.” Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986). Therefore, it was not incumbent upon the Commonwealth to prove any of the elements of the offense because Dobson admitted to them. At the evidentiary hearing, Dobson’s trial counsel testified that he reviewed the discovery provided by the Commonwealth and the grand jury proceedings where the victim testified regarding the value of the stolen items. Counsel stated that he did not perform an independent investigation into the actual value of the items. Counsel also stated that Dobson wanted to plead guilty and that he advised Dobson against pleading guilty. Counsel stated that Dobson readily admitted guilt and wanted to obtain the best plea offer possible. Tellingly, Dobson does not assert that the property in question was actually valued at less than $300. Rather, he simply argues that the counsel was ineffective for failing to adequately investigate the -4- value. Moreover, the victim’s grand jury testimony adequately values the property in question at over $300. We are convinced from the record that Dobson’s guilty plea was knowing, intelligent, and voluntary. Further, from the evidence presented at the RCr 11.42 hearing, we conclude that further investigation into the actual value of the property in question would not have altered Dobson’s decision to plead guilty. Accordingly, the order of the Fayette Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Rachelle N. Howell Frankfort, Kentucky Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky -5-

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