ROGER WAYNE WHITAKER V. COMMONWEALTH OF KENTUCKY
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RENDERED:
August 28, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
97-CA-1850-MR
ROGER WAYNE WHITAKER
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST JASMIN, JUDGE
ACTION NO. 95-CR-0926
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GARDNER and KNOPF, JUDGES.
GARDNER, JUDGE.
Roger Wayne Whitaker (Whitaker) appeals from a
Jefferson Circuit Court order denying his Kentucky Rule of Criminal
Procedure (RCr) 11.42 motion to vacate sentence.
We affirm.
Whitaker was indicted on April 18, 1995, on one count of
burglary in the third degree, two counts of receiving stolen
property over $300, and one count of being a persistent felony
offender in the first degree (PFO I).
Pursuant to an agreement,
Whitaker pled guilty on June 6, 1996, in Jefferson Circuit Court to
one count of receiving stolen property over $300. The Commonwealth
recommended three years unsupervised probation on the condition
that
Whitaker
sentencing.
not
be
arrested
for
any
new
crimes
prior
to
Under the plea agreement, if Whitaker was arrested
prior to sentencing, the Commonwealth would recommend five years
imprisonment.
Whitaker was arrested two months after the guilty
plea and prior to sentencing.
On August 20, 1996, the Jefferson
Circuit Court held a sentencing hearing at which Whitaker moved to
withdraw his guilty plea.
The court denied Whitaker’s motion and
sentenced him to serve five years in prison.
On June 19, 1997, Whitaker filed an RCr 11.42 motion to
vacate his sentence alleging ineffective assistance of counsel.
Whitaker also sought an evidentiary hearing on the issues raised in
his motion.
The circuit court denied Whitaker’s motion without a
hearing, and this appeal followed.
When the trial court denies a motion for an evidentiary
hearing, review is limited to “whether the motion on its face
states grounds that are not conclusively refuted by the record and
which,
if
true,
would
invalidate
the
conviction.”
Lewis
v.
Commonwealth, Ky., 411 S.W.2d 321, 322 (1967).
In
Whitaker
must
order
to
succeed
demonstrate
on
that
his
his
ineffectiveness
counsel’s
claim,
performance
was
deficient and that he was prejudiced by counsel’s deficiency.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984).
The deficiency prong is satisfied if
counsel “made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
-2-
Id.
In the context of a guilty plea, prejudice is shown if “there
is a reasonable probability that, but for counsel’s errors, [the
defendant] would not have pleaded guilty and would have instead
insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59,
106, S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
In support of his RCr 11.42 motion, Whitaker contends
that his counsel rendered ineffective assistance for failing: (1)
to make any attempt to quash the indictments; (2) to advise the
court when the guilty plea was entered that Whitaker was pleading
guilty to a charge for which he was innocent; (3) to advise him
that he was entering into an unconscionable contract; (4) to inform
the sentencing court that the guilty plea order was barren of any
language regarding arrest; (5) to move for discovery or a Bill of
Particulars prior to advising him to enter into a guilty plea; (6)
to correctly advise him of his ability to withdraw his guilty plea;
and (7) to move for a continuance.
Whitaker’s first argument alleges counsel was ineffective
for failing to make any attempt to dismiss the indictments for
insufficient evidence. An indictment cannot be quashed or judgment
of conviction reversed on the ground of insufficient evidence. See
RCr 5.10.
Therefore, Whitaker has failed to show counsel was
deficient in his performance.
Whitaker’s second argument alleges that counsel should
have advised the court when the guilty plea was entered that
Whitaker was pleading guilty to a charge for which he was innocent.
This
allegation
is
refuted
by
the
record.
The
trial
court
specifically asked Whitaker whether he was guilty, and he admitted
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guilt.
Once it is determined that the guilty plea was rendered
voluntarily
and
intelligently,
charged in the indictment.
the
plea
confesses
everything
Taylor v. Commonwealth, Ky. App., 724
S.W.2d 223 (1986). The simple fact that counsel advises or permits
a defendant to plead “guilty” does not constitute ineffective
assistance of counsel.
234, 237 (1983).
Beecham v. Commonwealth Ky., 657 S.W.2d
The decision to plead “guilty” or “not guilty” is
a decision reserved solely for the accused based on his intelligent
and voluntary choice. Wiley v. Sowders, 647 F.2d 642, 648 (6th Cir.
1981), certiorari denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d
630
(1981).
The
record
reflects
that
Whitaker
voluntarily,
knowingly and intelligently made the decision to plead guilty and
was aware of the ramifications.
Boykin v. Alabama, 395 U.S. 238,
241, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).
Whitaker claims counsel rendered ineffective assistance
by
failing
to
advise
him
that
he
was
entering
into
an
unconscionable contract containing a provision that would impose a
five year sentence of imprisonment for an arrest. On the contrary,
the
plea
charges
against
Whitaker and counsel’s actions were therefore reasonable.
A court
deciding
agreement
an
substantially
actual
reduced
ineffectiveness
the
claim
must
judge
the
reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.
Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 878 (1992). Counsel’s
decision
to
allow
Whitaker
to
enter
into
the
agreement
was
reasonable and within the wide range of professionally competent
assistance, because it was speculative at best to assume that
-4-
Whitaker would be arrested in the time between the guilty plea and
sentencing.
Furthermore, Whitaker was not prejudiced by counsel’s
inaction because the agreement was an attractive offer in light of
Whitaker’s past record and the sentence he could have received if
he had gone to trial.
Whitaker
contends
that
counsel
was
ineffective
for
failing to inform the trial judge that the guilty plea order
entered on June 17, 1996, did not contain any language mentioning
arrest as part of the plea agreement.
However, the court order was
merely a recitation of the Commonwealth’s proposal.
Whitaker was
fully aware of the conditions to be imposed, and the order made
specific references to the plea agreement.
Whitaker next alleges that the trial counsel failed to
make any motions for discovery or to request a Bill of Particulars
prior to advising him to enter a guilty plea.
The record shows
that in May 1996, the Commonwealth furnished counsel with pre-trial
discovery that included a Bill of Particulars.
Therefore, counsel
was not deficient for failing to make unnecessary motions.
Whitaker alleges that trial counsel incorrectly advised
him that he could withdraw his guilty plea at sentencing. Whitaker
claims that if he had been correctly informed he would have
maintained his innocence from the beginning and would not have
pleaded guilty.
Whitaker cannot show prejudice because the trial
judge was exhaustive in the taking the guilty plea.
Whitaker was
asked whether he approved of the assistance provided by his counsel
and he replied “very much so.”
Whitaker was also informed of the
rights he was surrendering, and he informed the court that he was
-5-
not relying on any promises made by anyone in entering a plea of
guilty.
Finally, in light of his prior record and the charges
present, Whitaker could have received a much longer sentence, and
the guilty plea was a reasonable alternative.
Whitaker’s final argument in regards to inadequacy of
counsel stems from counsel’s failure to move for a continuance of
the sentencing hearing, until after the dismissal of the charges
that stemmed from the arrest of July 2, 1996.
agreement,
Whitaker’s
arrest
was
enough
Under the plea
to
trigger
Commonwealth’s recommendation of the five year sentence.
the
“A plea
agreement must be strictly construed and enforced according to its
terms.”
Wilson
v.
Commonwealth,
839
S.W.2d
17,
20
(1992).
Therefore, Whitaker was not prejudiced by the actions of his
counsel.
Whitaker
further
alleges
that
the
assistant
Commonwealth’s attorney participated in prosecutorial misconduct by
prosecuting
the
original
case
while
possessing
knowledge
witnesses who would testify as to appellant’s innocence.
of
This is
not a case of prosecutorial misconduct, but instead misconduct on
the part of the accused.
The Commonwealth offered a plea bargain
in good faith which Whitaker violated.
As
the
record
clearly
refutes
the
allegations
in
Whitaker’s RCr 11.42 motion, we decline to say that the trial court
abused its discretion in denying Whitaker’s motion for a hearing,
or that the court clearly was erroneous in denying his RCr 11.42
motion to vacate sentence.
The judgment of the Jefferson Circuit
Court is affirmed.
-6-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Roger Wayne Whitaker, Pro Se
Lexington, Kentucky
A. B. Chandler III
Attorney General
Joseph R. Johnson
Assistant Attorney General
Frankfort, Kentucky
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