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RENDERED: NOVEMBER 23, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MARK T. ROUNTREE
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 05-CR-00556
COMMONWEALTH OF KENTUCKY
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BEFORE: ACREE AND STUMBO, JUDGES; LAMBERT,1 SENIOR JUDGE.
ACREE, JUDGE: Without conducting an evidentiary hearing or appointing
counsel to represent the indigent criminal defendant, the Hardin Circuit Court
denied Mark Rountree’s Rule of Criminal Procedure(s) (RCr) 11.42 motion.
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 Statute(s)
Rountree contends on appeal that the circuit court’s failure to appoint counsel was
a violation of KRS 31.110 and further asserts as error the determination that his
counsel’s performance does not warrant vacating the conviction. Finding no error,
Facts and procedure
Rountree, accompanied by his associate John Lindsey,2 was driving a car
containing many of the ingredients and equipment necessary for the production of
methamphetamine when police officers pulled him over. The officers discovered
the drug-making supplies, in addition to small quantities of methamphetamine and
hydrocodone, and arrested Rountree and Lindsey.
In custody, Rountree exercised his right to remain silent and gave no
statement to the police; Lindsey, however, gave a full confession which implicated
Rountree. Lindsey informed police that he and Rountree had purchased
pseudoephedrine tablets from several pharmacies with the goal of manufacturing
The matter was submitted to the grand jury. Among the evidence presented
by the Commonwealth was the testimony of Detective Chris Thompson. Rountree
was indicted for complicity to manufacture methamphetamine, complicity to firstdegree possession of a controlled substance, complicity to second-degree
possession of a controlled substance, complicity to possess drug paraphernalia, and
The parties disagree on the proper spelling of Lindsey’s name, so we have adopted the spelling
used by the circuit court.
a persistent felony offender charge. Detective Thompson later testified at
Rountree’s preliminary hearing as well.
Believing police had lacked sufficient suspicion to justify the traffic stop and
probable cause to search Rountree’s vehicle, Rountree’s trial attorney filed a
motion to suppress the fruits of the search. Detective Thompson did not testify at
the hearing and Rountree’s attorney did not subpoena him. The circuit court
denied the motion.
Rountree and the Commonwealth subsequently reached a plea agreement
conditioned on Rountree’s right to appeal the circuit court’s denial of the motion to
suppress. On direct appeal, this Court affirmed the denial, finding the stop of
Rountree’s vehicle and the ensuing search were proper. Rountree v.
Commonwealth, 2008 WL 4601285 (Ky. App. Oct. 17, 2008)(2007-CA-001950MR).
Rountree pursued a collateral attack of his conviction under the authority of
RCr 11.42, which the circuit court denied. On appeal, he has raised only two
issues: whether the circuit court erred in declining to appoint an attorney to
represent him during RCr 11.42 proceedings and whether it was error to conclude
he did not receive ineffective assistance of counsel.3
One “ARGUMENT” heading in Rountree’s appellate brief also asserts that the circuit court
erred in failing to conduct an evidentiary hearing, and the brief recites the legal standards
governing the requirement that such hearing be conducted. The body of the argument does not,
however, assert that Rountree was entitled to an evidentiary hearing, nor does it attempt to apply
the law governing conduct of an RCr 11.42 hearing to the facts of Rountree’s case. This matter
has not been properly brought before us, and we will not consider it.
The circuit judge was not obligated to appoint counsel to represent Rountree
Rountree first argues that KRS 31.1104 renders erroneous the circuit judge’s
refusal to appoint counsel to represent him in pursuit of his RCr 11.42 motion. The
Supreme Court has held otherwise: “We conclude . . . that RCr 11.42(5)
establishes when a judge must appoint counsel for an indigent movant and that
KRS 31.110(2)(c) establishes when the [Department of Public Advocacy] may
provide legal services even without judicial appointment.” Fraser v.
Commonwealth, 59 S.W.3d 448, 456 (Ky. 2001). As a result, an indigent criminal
The relevant portions of KRS 31.110 provide:
(1) A needy person who is being detained by a law enforcement officer, on suspicion of having
committed, or who is under formal charge of having committed, or is being detained under a
conviction of, a serious crime, or who is accused of having committed a public or status offense
or who has been committed to the Department of Juvenile Justice or Cabinet for Health and
Family Services for having committed a public or status offense as those are defined by KRS
610.010(1), 610.010(2)(a), (b), (c), or 630.020(2) is entitled:
(a) To be represented by an attorney to the same extent as a person having his or her own
counsel is so entitled; and
(b) To be provided with the necessary services and facilities of representation including
investigation and other preparation. The courts in which the defendant is tried shall
waive all costs.
(2) A needy person who is entitled to be represented by an attorney under subsection (1) of this
section is entitled:
(c) To be represented in any other post-conviction, or, if a minor under the age of eighteen
(18), post-disposition proceeding that the attorney and the needy person considers
appropriate. However, if the counsel appointed in such post-conviction, or, if a minor
under the age of eighteen (18), post-disposition remedy, with the court involved,
determines that it is not a proceeding that a reasonable person with adequate means
would be willing to bring at his or her own expense, there shall be no further right to be
represented by counsel under the provisions of this chapter.
defendant is entitled to appointment of counsel for a collateral challenge of his
conviction only when his case meets the standard described in RCr 11.42(5).5 Id.
The Supreme Court’s conclusion in Fraser was based on the separation of
powers doctrine and the practical difficulties which would arise were the literal
language of KRS 31.110 given effect. Id. at 453-56. Although the holding of
Fraser explicitly addresses only one subsection of KRS 31.110, the high court’s
analysis supports application of the rule to the entire statute. KRS 31.110 does not
entitle a defendant to appointment of counsel in pursuit of a collateral attack on his
Rountree does not assert that RCr 11.42(5) entitles him to the appointment
of counsel, so we need not analyze his argument under that standard.
The performance of Rountree’s trial counsel was not deficient, and Rountree
suffered no prejudice
To succeed in an ineffective assistance of counsel claim following entry of a
plea agreement, a defendant must demonstrate that his trial counsel’s performance
was deficient and that he suffered prejudice such “that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 60, 106 S.
Ct. 366, 371, 88 L. Ed. 2d 203 (1985). The performance of a trial attorney may be
RCr 11.4(5) provides for the appointment of counsel under the following circumstances:
If the answer raises a material issue of fact that cannot be determined on the face
of the record the court shall grant a prompt hearing and, if the movant is without
counsel of record and if financially unable to employ counsel, shall upon specific
written request by the movant appoint counsel to represent the movant in the
proceeding, including appeal.
deemed deficient if he neglects his “affirmative duty to make reasonable
investigation for mitigating evidence or to make a reasonable decision that
particular investigation is not necessary.” Hodge v. Commonwealth, 68 S.W.3d
338, 344 (Ky. 2001) (citing Strickland v. Washington, 466 U.S. 688, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).
On appeal, Rountree argues his trial attorney should have “looked at and
investigated every piece of evidence or discovery before advising Rountree to enter
a guilty plea.” Appellant’s brief, 13. Rountree identifies only one specific basis
for his claim that his trial attorney failed to conduct an adequate investigation,
namely that he did not review grand jury proceedings or the preliminary hearing
prior to the suppression hearing and, therefore, failed to identify inconsistencies in
Detective Thompson’s grand jury testimony.6 Had his trial counsel conducted a
thorough investigation, Rountree contends, he could have subpoenaed Detective
Thompson for the suppression hearing and identified the inconsistencies in his
previous testimony. The result, argues Rountree, would have been the suppression
of the evidence collected following the traffic stop, and the Commonwealth would
have been left without a viable case.
Rountree identifies only one inconsistency in Detective Thompson’s
testimony. Without citing to the record, the appellant’s brief states as follows:
At the grand jury hearing, Detective Thompson testified
that Rountree “gave a confession, during taped
The attorney who represented Rountree at the suppression hearing and at entry of his guilty
plea did not represent him at the preliminary hearing or at the time the grand jury was convened.
interviews of their involvement in the manufacturing of
meth.” During the preliminary hearing, Detective
Thompson’s testimony changed to “They both stated they
were uses [sic] of meth. . . . Rountree invoked his rights
and refused to say anything after he was a meth user.”
The failure of Rountree’s trial counsel to raise this “inconsistency” in Detective
Thompson’s testimony does not warrant reversal of the circuit court’s denial of
Rountree’s RCr 11.42 motion for a number of reasons.
First, Rountree’s brief does not cite to a video recording or transcript of the
grand jury hearing, and we have not located either in the record on appeal.7 “To
the extent that the record is incomplete, the reviewing court must presume that the
omitted portions support the . . . judgment.” Roberts v. Fayette County Board of
Education, 173 S.W.3d 918, 923 (Ky. App. 2005) (citing Commonwealth,
Department of Highways v. Richardson, 424 S.W.2d 601, 603 (Ky.1968)).
The purpose behind that rule is especially salient here because the circuit
court’s order presents the course of events significantly differently than the abovequoted passage from Rountree’s brief does:
Thompson told the grand jury that Lindsey had waived
his rights and given a taped confession. While
Thompson initially indicated that both defendants had
waived their rights and confessed, he corrected this
misstatement and informed the grand jury that [Rountree]
had refused to waive his rights, was not interrogated, and
did not give a confession.
We must acknowledge that our search of the record was cursory. We are not obligated to
search the record at all when a party fails to provide us with the proper citation. See Phelps v.
Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003).
The circuit judge found Detective Thompson corrected his mistake during his
grand jury testimony, rather than waiting to make the correct statement at the
preliminary hearing, as Rountree represents on appeal. The circuit court’s denial
of Rountree’s RCr 11.42 motion was based in part upon the conclusion that,
because Detective Thompson corrected his mistake so soon after making it, the
incorrect statement was not “unfairly prejudicial.” Without the recording of
Detective Thompson’s grand jury testimony hearing, we are unable to review the
full sequence of events to ascertain who is correct. If Rountree believed the events
at the grand jury supported his argument, he should have supplemented the record
with a video or transcript and directed our attention to it. RCr 5.16. (“any person
indicted by the grand jury shall have a right to procure a transcript of any
stenographic report or a duplicate of any mechanical recording relating to his or
her indictment or any part thereof upon payment of its reasonable cost.”). See also
Roberts, 173 S.W.3d at 123 (citation omitted) (“It is the duty of the appellant to see
that the record is complete on appeal.”).
We therefore presume the recording of the grand jury proceedings supports
the circuit court’s finding that the performance of Rountree’s trial counsel was not
We are also not inclined to reverse the denial of Rountree’s motion because
he has not identified any persuasive reason why the detective’s mistaken grand
jury testimony would have had any impact on the outcome of the suppression
hearing. Whether Rountree confessed his intent to manufacture methamphetamine
subsequent to his arrest, and even whether Detective Thompson had lied about
obtaining a confession, has no bearing on whether the traffic stop and search of the
vehicle were lawful. Detective Thompson testified at the preliminary hearing that
he did not conduct the stop of the vehicle, and in his brief Rountree admits that
another detective ordered the traffic stop. Detective Thompson’s propensity for
truth telling, then, was not relevant to whether the stop was appropriate. The
information Rountree contends his trial counsel should have elicited at the
suppression hearing would have made no difference in the outcome.
KRS 31.110 did not require the circuit court to appoint counsel to assist
Rountree in pursuing his RCr 11.42 motion. Further, Rountree has raised no
reason on appeal to support his claim that the performance of his trial counsel was
deficient or that he was prejudiced by counsel’s alleged deficiencies. The order of
the Hardin Circuit Court denying Rountree relief from the judgment pursuant to
RCr 11.42 is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rachelle N. Howell
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General