DONALD RAY DUKE v. COMMONWEALTH OF KENTUCKY
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RENDERED: November 6, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002959-MR
DONALD RAY DUKE
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE GARLAND W. HOWARD, JUDGE
ACTION NO. 91-CR-000028
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GUIDUGLI, Judges.
COMBS, JUDGE:
The appellant, Donald Ray Duke (Duke), appeals
form the order of the Daviess Circuit Court denying his motion
pursuant to RCr. 11.42 to vacate his conviction and sentence.
Duke argues that he was denied effective assistance of counsel
and that his plea was not entered knowingly, intelligently, and
voluntarily.
Finding no merit in his contentions, we affirm the
order of the circuit court.
On February 4, 1991, Duke was indicted for six counts
of robbery in the first degree; one count of assault in the
second degree; one count of assault in the fourth degree; and
twelve counts of wanton endangerment in the first degree.
The
indictment was issued in connection with an armed robbery that
had taken place at a drug store in Owensboro, Kentucky, on
December 30, 1990.
Duke was implicated in the robbery by two
victims who identified him in a photographic line-up.
While
under arrest, Duke and his co-defendant confessed to being the
perpetrators of the alleged armed robbery.
Subsequently, on
March 8, 1991, he filed a motion to enter a guilty plea to five
counts of robbery in the first degree and to seven counts of
wanton endangerment in the first degree.
The court accepted
Duke’s plea of guilty and sentenced him in accordance with the
Commonwealth’s recommendation to a total of fifty years’
imprisonment.
On September 25, 1997, Duke filed a motion pursuant to
RCR. 11.42 to vacate his conviction and sentence, alleging that
his counsel was ineffective and that his guilty plea was not
entered knowingly, intelligently, and voluntarily.
He also
requested that the court conduct an evidentiary hearing.
Duke
claimed that his attorney had failed to file pre-trial motions to
exclude certain evidence and that he had not conducted an
adequate pre-trial investigation.
He claimed that at the time he
pleaded guilty, he had been suffering from severe drug
withdrawal, which affected his mental capacity.
On November 6,
1997, without conducting a hearing, the court entered an order
denying Duke’s motion, finding that it was not necessary to
conduct an evidentiary hearing as the record sufficiently refuted
the allegations presented in his RCr. 11.42 motion.
followed.
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This appeal
Duke contends on appeal that he was did not receive
effective assistance of counsel.
Specifically, he alleges that
his attorney failed to challenge certain evidence against him and
that such challenges would most likely have resulted in a
dismissal of the charges against him.
In support of this
contention, he cites his counsel’s failure to file pre-trial
motions challenging a photographic line-up in which two victims
identified him; he contends that this procedure was unduly
suggestive and prone to mis-identification.
He also points to
the fact that his counsel was deficient in failing to try to
exclude his confession.
He alleges that he was in the throes of
drug withdrawal at the time he made the confession to the police.
Duke argues that proper pre-trial motions challenging this
evidence would have most likely resulted in a dismissal of the
case against him.
Additionally, he claims that his attorney
failed to investigate his case or to consult with him while he
was in jail.
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 80
L.Ed.2d 203 (1985), the United States Supreme Court found that
the two-part test for ineffective assistance of counsel as set
forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1985) applied as well to ineffective assistance
claims arising out of the plea bargaining process.
Strickland
dictates that the movant must first show that counsel made errors
so serious that his or her performance fell outside the wide
range of professionally competent assistance.
Second, the movant
must establish that the deficient performance of counsel so
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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 pled guilty but would have
insisted on going to trial.
Moreover, the Kentucky Supreme Court has stated:
. . . [T]his court absolutely will not turn
back the clock and retry these cases in an
effort to second guess what counsel should
have or should not have done at the time . .
. . The burden is upon the accused 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, Ky., 433 S.W.2d 117, 118 (1968).
The record shows that at the time Duke entered his
guilty plea, the court questioned him as to his attorney’s
performance.
Duke indicated that he was satisfied with counsel’s
performance and that he acknowledged that he had discussed his
case with counsel.
The Motion to Enter Guilty Plea signed by
Duke and filed with the court also stated that he had reviewed
and discussed the charges against him — as well as the facts and
circumstances surrounding the case — with his attorney.
Additionally, the motion contained a certification by his
attorney that he had fully discussed with Duke the case and
possible defenses.
Duke was given several opportunities by the
court to voice any complaint or dissatisfaction that he may have
had with his attorney.
However, at no time during the
proceedings did he complain or express any dissatisfaction.
Rather, Duke repeatedly declared and affirmed his satisfaction
with his attorney’s performance.
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These solemn declarations in
open court carry a strong presumption of verity.
Blackledge v.
Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
Furthermore, we do not find that the mere fact that
Duke’s counsel did not file any pre-trial motions indicates per
se that his performance was deficient.
As we have already
discussed, both Duke and his attorney stated that they had
discussed the case fully as well as the trial strategy of any
possible defenses.
Such discussions would necessarily involve an
evaluation and assessment of the evidence against Duke.
At each
stage of the proceedings in this case, Duke was made aware of his
right to a trial; he also was aware that if he chose to do go
trial, he would be given the opportunity to present evidence and
to cross- examine the evidence against him.
His allegations
against his counsel appear to be an attempt to “second guess” the
course of action he had elected to pursue; i.e., the entry of a
plea of guilty.
We find that Duke has failed to prove that his
counsel’s performance was either deficient or that the alleged
deficiency affected the outcome of the plea process in this case.
Duke next contends that his guilty plea was invalid.
He argues that at the time he pleaded guilty, he was suffering
from drug withdrawal, which impaired his mental capacity to
appreciate the consequences of a guilty plea and to understand
the rights he was waiving.
Thus, he maintains that his plea was
not voluntary, intelligent, or knowing.
A valid guilty plea must represent a voluntary and
intelligent choice among the alternative courses of action open
to the defendant.
North Carolina v. Alford, 400 U.S. 25, 91
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S.Ct. 160, 27 L.Ed.2d 162 (1970).
A plea which is the product of
ignorance, incomprehension, coercion, inducements, threats, or
promises is void.
Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct.
1709, 1712, 23 L.Ed.2d 274 (1969).
Before accepting a guilty
plea, the court must determine that the accused has a full
understanding of what the plea implies and of its consequences.
Boykin, supra.
The validity of a guilty plea must be determined
by considering the totality of the circumstance surrounding the
plea.
Kotas v. Commonwealth, 565 S.W.2d 445 (1978).
The court specifically found that Duke’s guilty plea
was valid and that it had been entered knowingly, intelligently,
and voluntarily.
We agree.
In the video-record of the
proceedings, Duke appeared alert, lucid, and coherent.
He
appeared to be fully able to comprehend the questions asked of
him by the court and to answer them clearly.
The court
questioned Duke as to whether he was under the influence of
alcohol or drugs and whether he was suffering from any mental
impairment.
He indicated to the court that he was not under the
influence of any drugs nor that he was suffering from any mental
impairment.
At no point in the proceedings did Duke indicate to
the court that he was suffering from drug withdrawal — nor did he
give the court any reason to suspect that such a situation
existed.
Furthermore, the pre-sentencing investigative report
(PSI), which was prepared by a probation and parole officer with
the Corrections Cabinet, states that Duke was cooperative and
that he appeared to be in good health.
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There is no mention or
indication anywhere in the report that Duke appeared to be
suffering from drug withdrawal.
Additionally, the Commonwealth
introduced an affidavit signed by Duke’s counsel which stated
that at no time during the course of the proceedings was Duke
under the influence of drugs or suffering from drug withdrawal.
The record also reveals that the court thoroughly and
meticulously questioned Duke as to the implications of a guilty
plea and the rights that he was waiving by entering such a plea;
he responded to the court that he fully understood the
consequences and effect of a guilty plea.
It is evident from the
record that Duke’s judgment was not impaired and that his plea
was voluntary, knowing, and intelligent.
In the alternative, Duke argues that the court erred in
not conducting a hearing to address the issues raised in his RCr.
11.42 motion.
However, the trial court is not required to
conduct an evidentiary hearing if the movant’s allegations are
refuted by the record as a whole.
App., 687 S.W.2d 153 (1985).
Hopewell v. Commonwealth, Ky.
Where the trial court has denied a
motion for an evidentiary hearing on the merits of the
allegations raised in the movant’s RCr. 11.42 motion, “our 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.’”
Sparks v. Commonwealth, Ky.
App., 721 S.W.2d 726, 727 (1986), (quoting Lewis v. Commonwealth,
Ky., 411 S.W.2d 321, 322 (1967).
As the record in this case
amply refutes Duke’s allegations, the court did not err in
refusing to conduct an evidentiary hearing.
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For the foregoing reasons, we affirm the judgment of
the circuit court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Don H. Major
Louisville, KY
A.B. Chandler III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, KY
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