CHARLES R. CAVINS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 5, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001931-MR
CHARLES R. CAVINS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
ACTION NO. 95-CR-00599
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
BUCKINGHAM, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE:
Charles R. Cavins brings this appeal from a July
16, 1998 Opinion and Order of the Fayette Circuit Court.
We
affirm.
On July 5, 1995, Cavins was indicted on two counts of
first-degree burglary (Ky. Rev. Stat.(KRS) 511.020), three counts
of theft by unlawful taking over $300 (KRS 514.030), one count of
second-degree burglary (KRS 511.030), four counts of seconddegree criminal possession of a forged instrument(KRS 516.060),
two counts of fraudulent use of a credit card (KRS 434.650), and
one count of being a first-degree persistent felony offender (KRS
532.080).
A trial was held February 5 - 7, 1996.
Pursuant to
his request, Cavins was tried in absentia.
The jury found Cavins
guilty on all of the above charges except for three of the
criminal possession of a forged instrument charges.
sentenced to 95 years in prison.
He was
As a matter of right, he
appealed his conviction to the Kentucky Supreme Court.
000269-MR.
96-SC-
The sole issue on appeal involved Cavins’ competency
to stand trial.
Specifically, Cavins argued that he was not
competent; thus, he was denied a fair trial.
The Supreme Court
held that reasonable grounds did not exist to believe that Cavins
was incompetent to stand trial.
Therefore, the Court held, the
trial court did not err by denying Cavins’ motion for
continuance.
On January 28, 1998, Cavins filed a Ky. R. Crim. P.
(RCr) 11.42 motion to vacate his sentence.
Therein, he
contended: 1) that he was incompetent at the time of his trial as
the result of his failure to take the medication needed to
maintain his competency, 2) that the trial court relied upon
“erroneous and incomplete” evidence when it held that there were
no reasonable grounds to believe Cavins was incompetent; and, 3)
that he was denied effective assistance of counsel.
court denied Cavins’ motion without a hearing.
The trial
This appeal
followed.
Cavins contends that the trial court committed error by
denying the RCr 11.42 motion without an evidentiary hearing. A
RCr 11.42 motion is properly denied without an evidentiary
hearing if claimant’s allegations are refuted upon the face of
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the record.
See Hopewell v. Commonwealth, Ky. App., 687 S.W.2d
153 (1985).
Cavins recapitulates the arguments made to the trial
court.
We, however, are prevented from reviewing his first two
arguments as they were already raised or should have been raised
on direct appeal to the Kentucky Supreme Court.
See Wilson v.
Commonwealth, Ky., 975 S.W.2d 901 (1998) and Brown v.
Commonwealth, Ky., 788 S.W.2d 500 (1990).
Cavins’ third assertion is that he was denied effective
assistance of counsel.
In order to succeed, Cavins must prove
that trial counsel’s performance was deficient and that such
deficiency resulted in actual prejudice.
See 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).
That is, there must be a reasonable probability that,
but for the errors of counsel, the result of the proceedings
would have been different.
Gall, 702 S.W.2d 37.
Cavins contends that counsel was ineffective for
failing to move for a new trial when it was discovered that he
(Cavins) was not on his medication for bipolar disorder on the
day of trial.
We disagree.
Bipolar disorder, in and of itself,
does not automatically render a person incompetent.
The trial
judge thoroughly questioned Cavins on the day of trial, when he
allegedly was off his medication.
rational and lucid.
The court found him to be
Further, his counsel stated to the court
that Cavins was able to assist her in preparation of the case the
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night before trial.
In sum, we do not believe there were
reasonable grounds to believe that Cavins was incompetent on the
day of trial.
Hence, we cannot say counsel was ineffective in
failing to move for a new trial based on Cavins’ alleged
incompetence.
Cavins also complains that on two occassions, counsel
allowed the trial court to erroneously believe that he had
previously been found competent by the Scott County circuit
court.
Even if this allegation were true, we do not believe that
it prejudiced Cavins.
Although the Scott County circuit court
did not hold a competency hearing before dismissing the charges
against Cavins, he was evaluated by one Dr. Victoria Yunker
pursuant to order of said court.
Dr. Yunker issued a report
stating her opinion that Cavins was, indeed, competent to stand
trial.
This, along with the trial court’s first-hand
observations of Cavins lead us to believe that even if counsel
had corrected the court’s alleged misunderstanding, the result
would have been the same.
Hence, under the precepts of
Strickland, we perceive no error in the trial court’s ruling.
For the aformentioned reasons, the order of the Fayette
Circuit Court is hereby affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda K. West
Frankfort, KY
Albert B. Chandler, III
Attorney General of Kentucky
and
Brian T. Judy
Assistant Attorney General
Frankfort, KY
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