RENDERED: AUGUST 17, 2012; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ROY DALE RICHARDSON
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
ACTION NO. 08-CR-00240
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS AND THOMPSON, JUDGES; LAMBERT,1 SENIOR
COMBS, JUDGE: Roy Dale Richardson appeals from an order of the Laurel
Circuit Court denying his motion, filed pro se, for post-conviction relief. After our
review, we affirm.
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 KRS 21.580.
On September 19, 2008, the Laurel County Grand Jury returned an
indictment charging Richardson with: second-degree trafficking in a controlled
substance; possession of marijuana; possession of drug paraphernalia; and being a
persistent felony offender in the first degree. He pled not guilty to all of the
On April 29, 2009, Richardson filed a motion to suppress evidence, which
was denied by the trial court. Richardson then withdrew his previous plea of not
guilty and pled guilty to trafficking in a controlled substance, second degree.
Pursuant to the parties’ plea agreement, the Commonwealth recommended a
sentence of ten (10) years to serve. The court sentenced him to ten-years’
imprisonment per the terms of the plea agreement.
On September 19, 2011, Richardson, pro se, filed a motion for postconviction relief pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42
in which he argued that he had received ineffective assistance of trial counsel. He
alleged that his trial counsel was ineffective for failing to investigate the
prosecution’s case against him; for failing to file a proper motion to suppress; and
for failing to present a “stalking horse” argument to the court for consideration.
No evidentiary hearing was held on the motion. In an order entered October 18,
2011, the trial court denied the motion. This appeal followed.
A party filing a motion pursuant to RCr 11.42 has the burden “to establish
convincingly that he was deprived of some substantial right which would justify
the extraordinary relief afforded by the post-conviction proceedings provided in
RCr 11.42.” Dorton v. Commonwealth, 433 S.W.2d 117 (Ky.1968). We review
the judgment of a trial court on an RCr 11.42 motion under the standard of abuse
of discretion. Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998).
Kentucky has adopted the two-prong test for establishing ineffective
assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), Gall v. Commonwealth, 702 S.W.2d 37
(Ky.1985). Under that test, as applied to guilty pleas, the claimant must show:
(1) that counsel made errors so serious that counsel’s
performance fell outside the wide range of professionally
competent assistance; and (2) that the deficient
performance so seriously affected the outcome of the
plea process that, but for the errors of counsel, there is a
reasonable probability that the defendant would not have
pleaded guilty, but would have insisted on going to trial.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-487 (Ky. 2001), citing Sparks v.
Commonwealth, 721 S.W.2d 726, 727-728 (Ky. 1986). The claimant bears the
burden of establishing ineffective assistance of counsel. Strickland, 466 U.S. at
690, 104 S.Ct. at 2066.
On appeal, Richardson argues that the trial court erred when it denied his
request for an evidentiary hearing.
The provisions of RCr 11.42 require an evidentiary hearing only “if the
answer raises a material issue of fact that cannot be determined on the face of the
record.” RCr 11.42(5); Stanford v. Commonwealth, 854 S.W.2d 742 (Ky.1993),
cert. denied by Stanford v. Kentucky, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d
669 (1994). There is no need for an evidentiary hearing where the record on its
face refutes the claims of error or when the allegations, even if true, would not be
sufficient to invalidate the conviction. Id.; Brewster v. Commonwealth, 723
S.W.2d 863 (Ky.App.1986). In its order denying Richardson an evidentiary
hearing, the trial court determined that the record conclusively resolved his claims.
Richardson argues first that trial counsel was ineffective since he neglected
to request discovery and otherwise failed to investigate the case against him.
However, the record clearly refutes Richardson’s claims that trial counsel failed to
adequately investigate his case. Richardson has conceded that the Commonwealth
provided “open file” discovery. Consequently, there was no need for counsel to
request any additional discovery. Additionally, the record shows that trial counsel
investigated the facts of the case and was able to secure the documents necessary
to support his motion to suppress.
Next, Richardson asserts that counsel erred by filing an “inept” motion to
suppress. He contends that trial counsel should have emphasized to the court that
the police officer had no probable cause to arrest him because the officer was
operating under a mistaken belief that Richardson was on parole at the time of his
arrest. In fact, Richardson had been discharged from parole. Issued on June 19,
2008, a certificate signed by the chairperson of the Kentucky Parole Board
indicated that Richardson was discharged from parole effective February 16, 2008.
This certificate was attached to the motion to suppress and was used to support
counsel’s contention that the arresting officers lacked probable cause to arrest
Richardson in May 2008. Thus, contrary to Richardson’s assertion, the record
confirms that counsel adequately presented the arguments now advanced by
Richardson in his collateral attack and, additionally, that counsel meticulously
presented records from the parole board to the court in an effort to bolster that
motion. Although his motion was ultimately unsuccessful, counsel’s failure to
achieve a favorable result does not render his assistance ineffective under the
standards established by Strickland.
Finally, Richardson contends that trial counsel was ineffective for failing to
assert a “stalking horse” argument with respect to the illegal search of his
premises. We disagree.
Richardson explains that a search is patently unlawful where a parole
officer’s visit is but a ruse or a pretext (i.e., a “stalking horse”) for a full-scale
criminal investigation. He argues that counsel should have advanced this theory to
the court. However, the “stalking horse” argument asserted by Richardson in this
collateral proceeding is no longer viable in the wake of the holding of the United
States Supreme Court in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587,
151 L.Ed.2d 497 (2001). In Knights, the Court held that the subjective motivation
of any individual officer cannot be the basis of a Fourth Amendment challenge to a
search and seizure. Counsel did not err by failing to advance a baseless argument.
Bowling v. Commonwealth, 80 S.W.3d 405 (Ky.2002). On the contrary, counsel
acted wholly in accordance with professional standards by not misrepresenting
case law on this issue.
Richardson has failed to cite to any material issue of fact that could not be
determined on the face of the record. Thus, we can find no error in the trial court's
denial of an evidentiary hearing.
We affirm the order of the Laurel Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Roy Dale Richardson, Pro se
Attorney General of Kentucky
David W. Barr
Assistant Attorney General