DAVIS (CHARLES) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000249-MR
CHARLES DAVIS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 01-CR-00108
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
ACREE, JUDGE: Charles Andrew Davis, Jr. appeals the Franklin Circuit Court’s
denial of his Kentucky Rule of Criminal Procedure (RCr) 11.42 motion to vacate
his conviction. Finding no manifest injustice, we affirm.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On June 18, 2001, Davis was indicted on two counts of trafficking in
a controlled substance in the first degree and one count of attempt to commit
trafficking. Following a jury trial, Davis was found guilty and sentenced to fifteen
years imprisonment and a $500 fine.
On direct appeal, this Court affirmed Davis’s convictions on the
trafficking counts, but reversed the conviction of attempt to commit trafficking,
finding there was insufficient evidence to support the charge.
Davis filed a collateral attack to his conviction in a motion pursuant to
RCr 11.42, alleging ineffective assistance of counsel. The circuit court denied his
motion without conducting a hearing. This appeal followed.
Davis argues the trial court improperly ruled upon his motion without
conducting an evidentiary hearing. Further, he asserts his trial counsel was
deficient in the following respects: 1) failing to object to the testimony of the
Commonwealth’s key witness, a confidential informant, and generally to question
the witness’s credibility; 2) failing to contest the admissibility of certain evidence
because the Commonwealth did not establish the chain of custody; 3) failing to
adequately investigate the circumstances surrounding the events which led to
Davis’s arrest; 4) failing to move for a directed verdict; and 5) failing to raise the
defense of entrapment.
At the outset, we must address the Commonwealth’s observation that
Davis’s appellate brief does not conform to the requirements of Rule of Civil
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Procedure (CR) 76.12; it is not in the proper format and contains no citations to the
record. Pursuant to CR 76.12 (8)(a), “[a] brief may be stricken for failure to
comply with any substantial requirement of this Rule[.]” However, we will review
Davis’s arguments for manifest injustice. Elwell v. Stone, 779 S.W.2d 46 (Ky.
App. 1990).
RCr 11.42 permits a person convicted of a crime to collaterally attack
his sentence if he believes he received ineffective legal assistance from his trial
attorney. The Rule requires a defendant to “state specifically the grounds on which
the sentence is being challenged and the facts on which [he] relies in support of
such grounds.” RCr 11.42(2).
A circuit court must conduct an evidentiary hearing on the allegations
raised in an RCr 11.42 motion when a defendant “raises a material issue of fact
that cannot be determined on the face of the record[.]” RCr 11.42(5). However,
when there is nothing outside the record which is material to the determination, a
hearing is not necessary. Skaggs v. Commonwealth, 803 S.W.2d 573, 576 (Ky.
1990).
Davis’s claims that an evidentiary hearing was necessary are vague
and unsupported by specific facts. He had not identified what testimony, or even
whose testimony, was required to supplement the record. Likewise, he has not
identified portions of the record which are insufficient to resolve his motion.
Instead, he claims, “if granted an Evidentiary Hearing, [he] would have raised
issues on the Record that would have reflected towards errors made that were
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obviously on the record and could not have been refuted.” Davis himself, then,
agrees these errors were “obviously on the record.” Without a more specific
statement that he needed to present information which was not already part of the
record, we cannot say the circuit court’s refusal to conduct a hearing constituted
manifest injustice.
To prevail on a claim of ineffective assistance, Davis must show both
that his attorney’s performance was deficient and that, but for counsel’s deficient
performance, there is a reasonable probability that the outcome of his trial would
have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
burden of showing prejudice is on the defendant. Stanford v. Commonwealth, 854
S.W.2d 742, 747 (Ky. 1993). Prejudice cannot be established by mere speculation.
Kinser v. Commonwealth, 741 S.W.2d 648, 653 (Ky. 1987).
The two elements of a claim of ineffective assistance of counsel,
deficient performance and prejudice, can be addressed in any order. “[A] court
need not determine whether counsel's performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d
674 (1984).
Accordingly, we first address the prejudice element. Davis has not
met his burden with respect to this portion of the Strickland test because he has not
argued that the outcome of his trial would have been different but for trial
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counsel’s supposed errors. Absent such an allegation and accompanying factual
support, we presume any error was harmless.
Because there is no allegation of prejudice to examine, we need not
assess counsel’s performance. Davis has raised insufficient arguments to support a
finding of palpable error.
We are unable to find manifest injustice in the circuit court’s denial of
Davis’s RCr 11.42 motion. We affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles Davis, Pro se
Sandy Hook, Kentucky
Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky
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