RAY (TONYA RENEE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 4, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002057-MR
TONYA RENEE RAY
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 06-CR-00819
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, VANMETER, AND WINE, JUDGES.
WINE, JUDGE: On September 6, 2006, a Warren County grand jury indicted
Tonya Renee Ray for complicity to murder, first-degree burglary, and complicity
to first-degree robbery. Ray and a co-defendant, Christopher Hackworth, were
indicted on charges related to the murder of Lee Ford Johnson. On August 6,
2007, Ray accepted the Commonwealth’s offer on a plea of guilty. In exchange
for her plea of guilty to the charges, the Commonwealth recommended that Ray
receive a sentence of life imprisonment with parole eligibility after service of
twenty years. The trial court accepted Ray’s guilty plea and imposed the
recommended sentence.
On July 13, 2009, Ray filed a motion pursuant to Kentucky Rule of
Criminal Procedure (“RCr”) 11.42, alleging ineffective assistance of counsel. The
trial court denied the motion without appointment of counsel or an evidentiary
hearing. Ray now appeals to this Court.
Ray argues that she received ineffective assistance from her trial
counsel. In order to prevail on an ineffective assistance of counsel claim, Ray
must satisfy a two-part test showing that her counsel's performance was deficient
and that the deficiency caused actual prejudice affecting the outcome of the
proceeding. 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 (Ky. 1985). The
burden falls on a movant to overcome a strong presumption that counsel's
assistance was constitutionally sufficient. Strickland, 466 U.S. at 689, 104 S.Ct. at
2065; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). In cases
involving a guilty plea, a movant must prove that her counsel's deficient
performance so seriously affected the outcome of the plea process that, but for
counsel's errors, there is a reasonable probability that the movant would not have
pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S.
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52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (Ark. 1985); Phon v. Commonwealth,
51 S.W.3d 456, 459-60 (Ky. App. 2001).
Ray contends that she was entitled to an evidentiary hearing on her
claims of ineffective assistance of counsel. An evidentiary hearing is necessary
only where the record does not conclusively refute the allegations in the motion.
Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). We agree with the trial
court that the record conclusively refuted the allegations in Ray’s motion.
Ray first asserts that her trial counsel failed to properly advise her of
her right to withdraw her guilty plea prior to final sentencing. She correctly notes
that under RCr 8.10, a trial court may permit a defendant to withdraw a plea. The
rule specifically requires a trial court to allow a defendant to withdraw a guilty
plea if it rejects the plea agreement. Otherwise, the court must determine whether
the plea was knowing and voluntary. Rodriguez v. Commonwealth, 87 S.W.3d 8,
10 (Ky. 2002). Ray contends that her counsel incorrectly advised her that she
could not withdraw her plea.
In addressing this argument, the trial court focused on whether Ray
would have been entitled to withdraw her guilty plea if her counsel had made such
a motion. At the guilty plea hearing, Ray stated that she could read and write, and
that she had read the plea agreement and had gone over it with her attorney. She
also stated that she had discussed the plea offer with counsel and was satisfied with
his advice. The court informed Ray of her constitutional rights, and she
acknowledged that she was voluntarily entering the guilty plea. Furthermore, at
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the final sentencing hearing, the trial court stated it had learned that Ray had
considered withdrawing her guilty plea. The court asked Ray if she still wanted to
maintain her guilty plea. Ray answered that she did.
Since Ray failed to set out any valid grounds to withdraw her guilty
plea, the trial court concluded that her trial counsel was not ineffective for failing
to raise that possibility with her. We agree. The trial court fully advised Ray of
her rights at the guilty plea hearing, as required by Boykin v. Alabama, 395 U.S.
238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). While she claims that her trial counsel
misadvised her about her right to withdraw her plea prior to final sentencing, she
was given an opportunity to do so at final sentencing but declined. Moreover, she
provides no reasons why such a motion would have been likely to succeed.
Consequently, there is no basis to find either that Ray’s counsel was ineffective or
that Ray was prejudiced as a result.
Ray next contends that her trial counsel failed to fully advise her of
the evidence disclosed by the Commonwealth during discovery. Following the
murder, Ray told police that Johnson had slipped a methadone wafer into her drink.
When she went home and told Hackworth about this, Hackworth conceived the
plan to rob Johnson. Ray notes that the police tested the drink glass and confirmed
the presence of drugs. Ray admits that the Commonwealth provided this evidence
in discovery, but she maintains that her trial counsel never told her about it before
she entered her guilty plea. Ray asserts that she could have pursued intoxication as
a defense or as a mitigating circumstance had she known of this evidence.
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We agree with the trial court that the record clearly refutes Ray’s
claims. Shortly before Ray entered her guilty plea, Ray’s counsel acknowledged
that the Commonwealth had recently produced evidence which overwhelmed any
mitigating circumstances. Ray’s counsel stated that he had shown this evidence to
Ray and that Ray understood the risks of going to trial. Ray initially indicated that
she wanted to reject the plea offer, but then she requested more time to consider it.
After a brief recess, Ray informed the court that she had decided to accept the
offer. The trial court extensively discussed Ray’s rights and her decision to plead
guilty. Counsel stated that he had shared all discovery with Ray and Ray stated
that she had reviewed that evidence. Ray also told the court that she was satisfied
with the advice of her counsel. Such pronouncements under oath and in open court
raise a strong presumption that counsel's assistance was constitutionally sufficient.
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Moreover, it may be a reasonable tactical choice for trial counsel to
advise a defendant to accept a guilty plea even if the defendant must waive
potentially meritorious defenses. Wiggins v. Smith, 539 U.S. 510, 522-23, 123
S.Ct. 2527, 2536, l56 L.Ed.2d 471 (2003). In this case, Ray knew of her potential
intoxication defense at the time she entered a guilty plea even if she was not aware
of other evidence supporting that defense. Consequently, she clearly made a
knowing waiver of that defense by pleading guilty.
Furthermore, while intoxication may be a defense in both the guilt and
penalty phases of the trial (see, Mills v. Commonwealth, 170 S.W.3d 310, 329 (Ky.
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2005) overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151
(Ky. 2009)), Ray’s counsel conceded that the Commonwealth had produced
significant evidence that overwhelmed any potential mitigating defense.
Specifically, the Commonwealth produced a recording of Ray and Hackworth in
which Ray made statements indicating her culpability in the crimes. At the time
the recording was made, any intoxication would have worn off. Given these
circumstances, Ray’s trial counsel reasonably recommended that she accept the
guilty plea. Consequently, we cannot find that Ray was prejudiced by any
omission by counsel.
Accordingly, the order of the Warren Circuit Court denying Ray’s
RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Tonya Renee Ray, pro se
Pewee Valley, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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