TREADWAY (DARRELL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001343-MR
DARRELL W. TREADWAY
v.
APPELLANT
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 03-CR-00011-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Darrell W. Treadway was convicted of robbery in
the first degree and sentenced to ten years’ imprisonment. In this proceeding, he
alleges ineffective assistance of counsel pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42.
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Senior Judge Joseph E. Lambert 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.
Treadway was indicted upon one count of robbery in the first degree.
At trial, the jury returned a verdict of guilty and Treadway was sentenced to 10
years. He appealed from that judgment and sentence and this Court affirmed in
Treadway v. Commonwealth, 2005 WL 3333427 (Ky. App. 2005) (2004-CA000272-MR). His motion for discretionary review to the Supreme Court of
Kentucky was denied. Treadway then filed a motion in the trial court whereby he
sought to vacate the judgment and sentence pursuant to RCr 11.42 on grounds of
ineffective assistance of counsel. The trial court denied the motion without an
evidentiary hearing. This appeal followed.
Claims of ineffective assistance of counsel are guided by the twoprong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). The first requirement is to show that counsel’s
performance was deficient and that “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. For the second prong, a party must show “that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. A defendant must overcome a strong presumption that counsel’s
performance falls within the wide range of reasonable professional assistance. Id.
at 690. The defendant has the burden to establish that but for counsel’s deficient
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performance there is a reasonable probability that the jury would have reached a
different result. Norton v. Commonwealth, 63 S.W.3d 175 (Ky. 2001).
Treadway brings eight specific issues to our attention. He first alleges
that trial counsel failed to investigate and subpoena two witnesses who were
material to his case. He argues that his girlfriend should have been called to rebut
the Commonwealth’s case in chief, yet offers nothing but speculation as to her
possible testimony. Similarly, Treadway argues that counsel should have called
the victim’s friend who provided the police with a partial license plate number of
the car used as a get-away vehicle. Again, he provides nothing but speculation
regarding what this witness might have contributed. “The mere fact that other
witnesses might have been available . . . is not a sufficient ground to prove
ineffective assistance of counsel.” Hodge v. Commonwealth, 116 S.W.3d 463, 470
(Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279
S.W.3d 151 (Ky. 2009).
Treadway next argues that counsel failed to challenge the competency
of the Commonwealth’s chief witness. However, the record reveals that counsel
did elicit a series of admissions from the witness involving psychiatric treatment,
intoxication and drug use. A witness is competent to testify if he/she is able to
accurately perceive the matter which is the subject of the testimony, can recall the
facts, can express himself/herself intelligibly and can understand the need for the
truth. Jarvis v. Commonwealth, 960 S.W.2d 466 (Ky. 1998). The trial court is in a
unique position to observe a witness and determine competency to testify. Kotas
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v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). Although the witness in this
case may have been intoxicated on the day of the robbery, there is nothing of
record to establish his inability to testify at trial
Next, Treadway asserts that the Commonwealth threatened the chief
witness with reinstating charges if he failed to testify; that the jury was not
admonished after the Commonwealth’s closing argument; and that counsel
indicated there would be an objection if the Commonwealth attempted to introduce
a document indicating Treadway would be eligible for parole after serving 20
percent of his sentence. Counsel apparently believed the jury would be misled or
swayed into thinking that Treadway would serve only 20 percent of any sentence it
recommended.
None of these claims of ineffective assistance of counsel were
presented to the trial court in Treadway’s original motion for relief pursuant to RCr
11.42. “The purpose of RCr 11.42 is to provide a forum for known grievances, not
to provide an opportunity to research for grievances.” Haight v. Commonwealth,
41 S.W.3d 436, 441 (Ky. 2001), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009). RCr 11.42 was not designed to
allow a defendant to present one series of arguments to the trial court and new
arguments to a reviewing court. Henson v. Commonwealth, 20 S.W.3d 466, 471
(Ky. 1999). As these claims were not presented to the trial court, they are not
preserved for our review, and we do not reach their merits.
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Treadway also argues that the Commonwealth failed to prove beyond
a reasonable doubt that he struck the victim, that he took property owned by
another, and he argues that it was error to allow the jury to convict him of the theft
of unidentified property. All of these direct appeal claims of error were presented
on direct appeal and decided contrary to Treadway’s interests. A motion for relief
pursuant to RCr 11.42 “is limited to issues that were not and could not be raised on
direct appeal.” Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998),
overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009).
Finally, we address Treadway’s argument that he was entitled to an
evidentiary hearing on his motion. An evidentiary hearing “is required only if
there is a material issue of fact that cannot be conclusively resolved by an
examination of the trial court record.” Hodge v. Commonwealth, 116 S.W.3d 463,
469-70 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279
S.W.3d 151 (Ky. 2009). Our review is limited “to whether the motion on its face
states grounds that are not conclusively refuted by the record and which if true,
would invalidate the conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322
(Ky. 1967). Here, the trial court properly found no need to examine the allegations
beyond the record before it. There was no error in the trial court’s failure to
conduct an evidentiary hearing.
The judgment of the Lincoln Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Darrell W. Treadway, pro se
Fredonia, Kentucky
Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky
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