HERMINIO A. PEREZ V. COMMONWEALTH OF KENTUCKY
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RENDERED:
April 10, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-3287-MR
HERMINIO A. PEREZ
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE WILLIAM S. COOPER, JUDGE
ACTION NO. 94-CR-0057
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
BUCKINGHAM, COMBS and GARDNER, Judges.
GARDNER, JUDGE: Herminio Perez, acting pro se, appeals an order of
the Hardin Circuit Court entered on November 22, 1996, denying his
motion to vacate, set aside or correct judgment brought pursuant to
Kentucky Rule of Criminal Procedure (RCr) 11.42, following an
evidentiary hearing on the motion.
We affirm.
On February 3, 1994, Perez and a passenger were stopped
by a Kentucky State Police Trooper while traveling on an interstate
highway because Perez was driving too close to a truck in front of
him.
Perez gave the trooper an expired Texas driver's license. A
further check of the vehicle, which had a Tennessee license plate,
revealed it was registered to a third party.
After issuing a
warning for following too closely and a citation for driving on an
expired license, the trooper noticed some suspicious items in the
vehicle
and
an
odor
of
marijuana;
permission to search the vehicle.
so
he
asked
for
Perez's
Perez voluntarily signed a
Spanish language consent to search form, and the vehicle was
searched by the original trooper and two other troopers who had
arrived on the scene.
With the aid of a police dog trained to
detect drugs, the troopers discovered twenty-three bundles of
marijuana weighing approximately fifty-four pounds hidden under the
floorboard of the driver's seat.
During the investigation, Gary
Tennant, a Spanish speaking special agent with the United States
Drug Enforcement Agency, was called to interview Perez because
Spanish was appellant's primary language, and he spoke limited
English.
Special Agent Tennant informed Perez of his Miranda
rights, and Perez allegedly admitted the marijuana was his.
On March 30, 1994, the Hardin County Grand Jury indicted
Perez on one felony count of trafficking in marijuana - five pounds
or
more,
second
offense,
Kentucky
Revised
Statute
(KRS)
218A.1421(4), and a misdemeanor count of operating a motor vehicle
without a valid operator's license, KRS 186.410.
After a two-day
trial in which an interpreter was provided for Perez, a jury
convicted appellant of the two offenses and fixed his punishment at
twenty years for trafficking in marijuana and six months in jail
with a $500.00 fine for the offense of no valid operator's license.
On April 18, 1995, the circuit court sentenced Perez to twenty
years in prison.
Perez appealed, and the Kentucky Supreme Court
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affirmed the conviction in an unpublished opinion dated February 8,
1996.
On July 15, 1996, Perez filed a RCr 11.42 motion raising
several issues related to ineffective assistance of counsel.
On
November 19, 1996, the trial court conducted an evidentiary hearing
on the RCr 11.42 motion at which Perez was represented by counsel
and an interpreter was furnished.
During the hearing, Perez's
attorney raised one new ground for ineffective assistance of
counsel not discussed in the original motion.
After the hearing,
the trial judge issued a written opinion, containing findings of
fact and conclusions, denying the motion.
This appeal followed.
Perez contends that his attorney committed several errors
that
constituted
ineffective
assistance
of
counsel.
In
his
original RCr 11.42 motion, Perez asserted that counsel failed to
perform the following acts: 1) bring to court the registered owner
of the vehicle identified as Marino; 2) follow up on the statement
by Trooper Oldham that Marino admitted owning the vehicle; 3)
emphasize during closing argument that Marino owned the vehicle; 4)
question Trooper Stevens more fully about his ability to observe
the unusual structure of the vehicle's floorboard; 5) request a
fingerprint analysis of the drug bundles; and, 6) obtain a copy of
the
original
indictment.
At
the
RCr
11.42
hearing,
Perez's
attorney also raised the issue of trial counsel's failure to move
to suppress appellant's confession to Special Agent Tennant.
RCr 11.42 allows individuals in custody under sentence to
raise a collateral attack to the judgment entered against them.
-3-
RCr 11.42(2) requires the movant to "state specifically the grounds
on which the sentence is being challenged and the facts on which
the movant relies in support of such grounds."
It is well-
established that an allegation of ineffective assistance of counsel
does not state grounds for relief under RCr 11.42 unless the
petition presents sufficient facts to show that the representation
of counsel was inadequate.
See Thomas v. Commonwealth, Ky., 459
S.W.2d 72 (1970); Mullins v. Commonwealth, Ky., 454 S.W.2d 689, 691
(1970).
In order to establish ineffective assistance of counsel,
a person must satisfy a two-part test showing that counsel's
performance was deficient and that the deficiency resulted in
actual prejudice affecting the outcome.
Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); accord Gall
v. Commonwealth, Ky., 702 S.W.2d 37 (1985), cert. denied, 478 U.S.
1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724 (1986).
The movant bears
the burden of overcoming a strong presumption that counsel's
assistance was constitutionally sufficient and outside the wide
range
of
professionally
competent
assistance.
Strickland
v.
Washington, 466 U.S. at 689-90, 104 S. Ct. at 2065-66; Wilson v.
Commonwealth, Ky., 836 S.W.2d 872, 878 (1992), cert. denied, 507
U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479 (1993).
Counsel's
performance is based on an objective standard of reasonableness.
Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.
Prejudice
is
defined
as
proof
that
there
is
a
reasonable
probability that, but for counsel's unprofessional errors, the
-4-
results would have been different.
Id. at 694, 104 S. Ct. at 2068;
Commonwealth v. Gilpin, Ky., 777 S.W.2d 603, 605 (1989).
A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.
Strickland v. Washington, 466 U.S. at
694, 104 S. Ct. at 2068.
One of Perez's major complaints involving several of
counsel's alleged errors concerns the handling of information
related to Marino, who he asserts was the owner of the vehicle.
Perez argues that the trial was rendered unconstitutional because
counsel did not produce Marino as a witness or more forcefully
present his defense that Marino was the true owner of the drugs.
Perez's
complaints,
however,
do
not
rise
to
the
level
of
ineffective assistance of counsel. First, Perez has not shown that
trial counsel even knew where Marino was located or could compel
his attendance.
Marino
would
Second, Perez has presented no evidence that
have
provided
ownership of the drugs.
any
exculpatory
testimony
on
the
Third, Perez clearly was in constructive
possession of the drugs by being the driver of the vehicle.
Fourth,
Special
Agent
Tennant
admitted ownership of the drugs.
testified
at
trial
that
Perez
Fifth, Perez testified at trial
that the drugs were not his, and there was testimony that he did
not legally own the vehicle.
Sixth, the evidence at trial on who
owned the vehicle was ambiguous because the troopers also testified
that the vehicle was registered to a third-party other than Marino.
Therefore, the question of ownership of the drugs was presented to
the jury.
Further, defense counsel forcefully argued during
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closing argument that Perez did not own the vehicle and claimed he
was unaware of the marijuana.
A fair assessment of an attorney's performance requires
the elimination of hindsight and evaluation of counsel's conduct at
the time.
2065.
Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at
Perez
has
failed
to
demonstrate
that
trial
counsel's
performance was deficient or that he suffered actual prejudice with
respect to his complaints concerning Marino.
Perez also asserts
that the trial court erred by limiting testimony on Marino during
the trial, but this issue is not cognizable in a RCr 11.42 motion
because it could have been raised in the direct appeal.
See
Commonwealth v. Stamps, Ky., 672 S.W.2d 336, 338 (1984); Hoskins v.
Commonwealth, Ky., 420 S.W.2d 560 (1967).
Similarly, Perez argues that counsel did not adequately
challenge an alleged inconsistency in Trooper Stevens's testimony
concerning the hidden compartment in the vehicle. This argument is
without merit because Perez does not challenge the legality of the
stop or of the search.
The troopers searched the vehicle pursuant
to
written
Perez's
voluntary
consent.
Thus,
counsel
had
no
legitimate reason to challenge Trooper Stevens's testimony, and any
inconsistency would not have impacted the trial.
During the RCr 11.42 hearing, Perez raised two arguments,
the first involving counsel's failure to move to suppress his
confession on grounds his Miranda rights were not given to him, and
the
second
involving
counsel's
failure
fingerprints from the drug bundles.
-6-
to
attempt
to
obtain
We note that in reviewing a
circuit court's decision on a RCr 11.42 motion, the trial judge's
findings of fact after a hearing are binding unless they are
clearly erroneous.
Commonwealth v. Payton, Ky., 945 S.W.2d 424
(1997); Bell v. Commonwealth, Ky., 395 S.W.2d 784, 785, (1965)
cert. denied, 382 U.S. 1020, 86 S. Ct. 640, 15 L. Ed. 2d 535
(1965).
Trial counsel testified at the hearing that she did not
move to suppress the confession because Special Agent Tennant
stated to her that he had informed Perez of his Miranda rights, and
Perez never told her he did not receive the Miranda warning.
The
trial court noted that this was Perez's second drug conviction, and
Perez has not claimed he was unaware of the requirement that a
person be advised of his Miranda rights before being interrogated.
Perez
has
deficient.
not
demonstrated
Counsel
that
investigated
counsel's
the
performance
circumstances
of
was
the
confession and interviewed Special Agent Tennant, who was brought
into
the
case
specifically
because
he
spoke
fluent
Spanish.
Counsel spoke with Perez about the police interview prior to trial.
In addition, Special Agent Tennant testified at trial that he had
given Perez his Miranda rights, but Perez never informed counsel at
that time that he challenged this testimony.
Counsel's failure to
move to suppress the confession was not outside the range of
competent legal assistance.
As to the failure to test for fingerprints on the drug
packages, counsel testified at the hearing that this was part of a
trial strategy to raise reasonable doubt about ownership of the
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drugs.
She stated that Perez was equivocal about whether his
fingerprints could be on the packages; so rather than create
possible incriminating evidence, counsel decided to attack the
Commonwealth's
case
by
challenging
the
thoroughness
investigation and the lack of fingerprint evidence.
of
the
As the court
in Strickland indicated, judicial scrutiny of counsel's performance
must be highly deferential, and "the defendant must overcome the
presumption that, under the circumstances the challenged action
'might
be
considered
sound
trial
strategy.'"
Strickland
v.
Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83
(1955)); McQueen v. Commonwealth, Ky., 721 S.W.2d 694, 700 (1987).
In addition, counsel's actions must be evaluated with reference to
information obtained from the defendant.
And when a defendant has given counsel
reason to believe that pursuing certain
investigations would be fruitless or even
harmful, counsel's failure to pursue
those investigations may not later be
challenged as unreasonable.
In short,
inquiry into counsel's conversations with
the defendant may be critical to a proper
assessment of counsel's investigation
decisions, just as it may be critical to
a proper assessment of counsel's other
litigation decisions.
Strickland v. Washington, 466 U.S. at 691, 104 S. Ct. at 2066
(citation
omitted).
The
Sixth
Amendment
right
to
effective
assistance of counsel does not guarantee error-free representation,
nor does it deny counsel freedom of discretion in determining the
means of presenting the client's case. Hibbs v. Commonwealth, Ky.,
570 S.W.2d 642, 642 (1978).
Given the circumstances, counsel's
-8-
decision not to seek fingerprint testing of the drug packages was
not unreasonable and did not constitute ineffective assistance of
counsel.
Perez's final complaint involves the amendment of the
indictment.
He maintains that the trial court committed error by
amending the indictment on its own and that there is no record of
the original wording in the indictment.
Again, this issue is not
cognizable under RCr 11.42 because it could have been raised in the
direct
appeal.
Commonwealth
v.
Stamps,
672
S.W.2d
at
338.
Nevertheless, a review of the record reveals that this claim must
be rejected on the merits.
The original indictment is in fact the
first page of the record.
The Commonwealth made an oral motion on
the date originally set for trial to amend the indictment to
include language referring to the applicable state of mind, that
being
possession
of
the
drugs
"knowingly
and
unlawfully."
Consistent with RCr 6.16, the trial court permitted the amendment
and granted Perez's motion for a continuance of the trial.
The
trial court acted appropriately, and Perez suffered no prejudice.
For the foregoing reasons, we affirm the order of the
Hardin Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Herminio A. Perez
LaGrange, Kentucky
A. B. Chandler III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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