RENDERED: JANUARY 13, 2012; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 06-CR-00207
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON, MOORE, AND STUMBO, JUDGES.
CAPERTON, JUDGE: The Appellant, Johnnie Widner, was convicted pursuant to
a guilty plea of promoting contraband in the first degree. He was sentenced to five
years of imprisonment, probated for five years. This appeal concerns the denial of
Widner’s motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.
Having reviewed the record, the arguments of the parties and the applicable law,
On August 31, 2006, Widner was indicted for promoting contraband
in the first degree, charges which stemmed from a scheme involving Widner and
multiple codefendants, including his wife, to smuggle drugs into the Letcher
County Jail. Widner immediately requested, and was later granted, the right to act
as co-counsel in his case. Through the course of the proceedings, Widner was
represented by three different attorneys and also filed multiple pro se motions.
On April 15, 2008, the Commonwealth’s Attorney entered notice that
he was disqualifying himself from the case and a special prosecutor was appointed.
Shortly thereafter, Widner entered a guilty plea pursuant to a plea agreement with
the Commonwealth. Under the terms of that agreement, the Commonwealth
agreed to dismiss two other indictments and recommended a five-year sentence
probated for five years. On July 30, 2008, Widner was convicted of promoting
contraband in the first degree and was sentenced in accordance with the
Approximately six months later, on February 11, 2009, Widner filed
an RCr 11.42 motion alleging ineffective assistance of counsel. The
Commonwealth filed its response on February 27, 2009. On May 7, 2010, the trial
court entered an order overruling Widner’s RCr 11.42 motion, and explained its
reasons for doing so.
On appeal, Widner argues that the trial court erred in overruling his
RCr 11.42 motion without a hearing because the record does not clearly refute his
claims of ineffective assistance of counsel. Although his arguments are somewhat
unclear, Widner seems to assert that he was coerced into pleading guilty because of
the pending criminal action against his wife. He also disputes that he was involved
in the crime charged, and makes unclear assertions about the Commonwealth’s
Attorney’s “kidnapping” and “attacking” his wife, whom he claims also did not
commit the crimes alleged.1 Widner asserts that his counsel was working in
concert with the Commonwealth Attorney in coercing him to plead guilty, that
counsel failed to advise him of potential affirmative defenses, failed to properly
evaluate the evidence against him, and that counsel spoke in a defamatory manner
about Widner’s “state of mind” at the time the crime was committed during the
course of an in camera hearing with the court.
In response, the Commonwealth argues that the trial court properly
denied Widner’s RCr 11.42 motion without an evidentiary hearing because the
record clearly refuted all of his allegations. Further, the Commonwealth asserts
that the record reveals that Widner engaged in a colloquy with the court which
indicated that his guilty plea was entered knowing, voluntary, and not coerced as
he has alleged. Accordingly, the Commonwealth argues that Widner’s claims of
ineffective assistance of counsel are without merit and that the court properly
denied his motion.
At the outset, we note that our standard of review of an RCr 11.42
motion is governed by the jurisprudence set forth by our United States Supreme
It is unclear upon exactly what facts Widner bases these allegations. Moreover, we note that at
the time Widner entered his guilty plea, the Commonwealth’s Attorney to whom he refers had
disqualified himself and a special prosecutor had been appointed.
Court. It has prescribed a two-pronged test describing the defendant's burden of
proof in these cases. First, the defendant must show that counsel's performance
was deficient; this requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense; this requires showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984),
adopted in Kentucky by Gall v. Commonwealth, 702 S.W.2d 37, 39–40 (Ky.
1985). Both criteria must be met in order for the test to be satisfied. The
Strickland Court emphasized that reviewing courts should assess the effectiveness
of counsel in the light of the totality of the evidence presented at trial and the
fundamental fairness of the challenged proceeding. Id. at 695–96.
The Strickland test, when applied in the context of guilty pleas, was
refined by our United States Supreme Court in Hill v. Lockhart, 474 U.S. 52, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985). In Hill, the Supreme Court held that, in order
to satisfy the “prejudice” requirement, the defendant must show 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. Id. at 59. We may not disturb the
findings of the trial court unless clear error has been committed. Commonwealth
v. Payton, 945 S.W.2d 424, 425 (Ky. 1997). We review the arguments of the
parties with these standards in mind.
Upon review of the record, we are of the opinion that all of Widner’s
allegations of ineffective assistance of counsel could be properly disposed of by a
review of the record. No issues of fact were raised by Widner’s motion and, as we
have repeatedly held, an evidentiary hearing is not required when the issues
presented may be fully considered by a review of the record. See Lawson v.
Commonwealth, 386 S.W.2d 734 (Ky. 1965). Stated simply, Widner’s arguments
are constructed around his claim that he was coerced into pleading guilty as a
result of the Commonwealth’s prosecution of his wife. As the trial court held in its
order denying Widner’s RCr 11.42 motion, this claim is completely refuted by the
statements Widner made in entering his guilty plea.
A review of the colloquy between Widner and the court reveals that in
entering his guilty plea, Widner stated that he had spoken with his attorney as
much as he needed to, had no complaints about his attorney, had been promised
nothing beyond that which was contained in the plea agreement, and that he was
not coerced into pleading guilty. Indeed, in his colloquy with the court, Widner
specifically and repeatedly denied that his wife’s prosecution played any role in
making him feel coerced or forced into entering a plea.
As our United States Supreme Court has held, “[d]eclarations in open
court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74,
97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1971). Our review of the record
reveals that there is no reason to believe that such was not the case sub judice.
Indeed, the trial court’s order denying Widner’s motion is both thorough and
dispositive, and properly disposes of all allegations after a full consideration of the
record. Accordingly, we find no reason to disturb that ruling.
Wherefore, for the foregoing reasons, we hereby affirm the May 7,
2010 order of the Letcher Circuit Court denying Widner’s RCr 11.42 motion.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Johnnie Widner, Pro Se
St. Mary, Kentucky
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General