VERONICA RUTHANN RADER 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NOT TO BE PUBLISHED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-002764-MR
VERONICA RUTHANN RADER
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN ADAMS, JUDGE
ACTION NO. 94-CR-1044
COMMONWEALTH OF KENTUCKY
TBHW:
APPELLEE
NO. 1999-CA-000238-MR
VERONICA RUTHANN RADER
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN ADAMS, JUDGE
ACTION NO. 94-CR-01044
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
DISMISSING APPEAL NO. 1998-CA-002764-MR
AFFIRMING APPEAL NO. 1999-CA-000238-MR
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE: Veronica Ruthann Rader brings pro se Appeal No.
1998-CA-002764-MR from an October 20, 1998 Opinion and Order of
the Fayette Circuit Court and brings Appeal No. 1999-CA-0000238MR from a January 6, 1999 Opinion and Order of the Fayette
Circuit Court.
We dismiss Appeal No. 1998-CA-002764-MR and
affirm Appeal No. 1999-CA-000238-MR.
The facts are these:
On September 22, 1997, Rader was
sentenced to ten years imprisonment for the offenses of robbery
in the second degree, (Ky. Rev. Stat. (KRS) 515.030), giving
police a false name (KRS 523.100), and being a persistent felony
offender in the first degree (PFO I) (KRS 532.080(3)).
In July
1998, Rader filed a pro se motion under Ky. R. Crim. P. (RCr)
11.42.
Therein, Rader requested appointment of counsel and an
evidentiary hearing.
On October 20, 1998, the circuit court
entered an order: (1) overruling Rader's objection to the
Commonwealth's extension of time, (2) overruling Rader's motion
to strike the Commonwealth's response, and (3) overruling Rader's
motion for reconsideration of a prior order denying appointment
of counsel.
Rader appealed the October order to this Court on
October 30, 1998 (Appeal No. 1998-CA-002764-MR).
The circuit
court, thereafter, considered Rader's RCr 11.42 motion upon the
merits and denied same in a January 6, 1999 opinion and order.
Rader appealed the January order denying the RCr 11.42 motion by
filing a notice of appeal in this Court on January 14, 1999
(Appeal No. 1999-CA-000238-MR).
We consider the appeals
separately.
APPEAL NO. 1998-CA-002764-MR
-2-
Tipton brings Appeal No. 1998-CA-02764-MR from an
October order of the circuit court which stated in relevant part
as follows:
The Defendant objects to an extension of
time for the Commonwealth to respond to her
motion pursuant to RCr 11.42. The
Commonwealth has responded. The Court
OVERRULES the objection. The Defendant also
moves to strike Commonwealth's response.
That motion is OVERRULED. The Defendant also
moves for re-consideration of a prior order
denying appointment of counsel under RCr
11.42, that motion is OVERRULED.
It is undisputed that the underlying RCr 11.42 motion was still
pending upon the merits in the circuit court as of the October
order.
As such, we perceive the October order as being non-final
and the appeal therefrom as being interlocutory under Ky. R. Civ.
Proc. 54.01.
Therefore, Appeal No. 1998-CA-002764-MR is DISMISSED.
APPEAL NO. 1999-CA-000238-MR
We now consider Appeal No. 1999-CA-000238-MR.
Rader
contends that the circuit 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 the record.
See Hopewell v. Commonwealth, Ky. App., 687 S.W.2d 153 (1985).
Rader specifically asserts that she received ineffective
assistance of trial counsel.
In order to succeed, Rader must
prove that trial counsel's performance was deficient and that
such deficiency resulted in actual prejudice. See Strickland v.
-3-
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.
In the case sub judice, Rader raises a plethora of
allegations relating to trial counsel's alleged ineffective
assistance:
[1.] The trial court erred in determining
that trial counsel was effective without
first determining factually whether counsel
failed to investigate exculpatory evidence
and witness testimony;
[2.] Trial counsel [was] ineffective through
negligence in failure to notify
Commonwealth's attorney off [sic] Rader's
request to appear before grand jury;
[3.] Counsel's failure to conduct proper
pre-trial investigation of Rader's version of
events;
[4.] Counsel deliberately misled Rader into
belief that expert witnesses had been
retained for testimony at trial;
[5.] Counsel failed to challenge conflict of
interest and pursue impeachment materials
related to prosecution's key witness;
[6.] Counsel failed to introduce medical and
psychiatric records of Mobley;
[7.] Counsel failed to travel to site of
alleged offense to inspect physical area to
obtain exculpatory evidence;
[8.] Cumulative errors may constitute
ineffective assistance of counsel;
-4-
[9.] The trial court erred holding that
separation of charged offenses not mandated
pursuant to RCr 9.16 and RCr 6.18;
[10.] The trial court erred in ruling that
trial counsel was effective at trial despite
lack of knowledge of relevant law;
[11.] Counsel [was] ineffective because of
failure to properly interview defense
witnesses and to have relevant understanding
of each witness' factual testimony;
[12.] Rader [was] denied fair adversarial
testing of the evidence because of a
breakdown in the attorney-client
relationship;
[13.] The trial court erred in making final
determination as to Rader's multiple claims
of ineffective assistance of counsel without
holding evidentiary hearing to determine
issues related to the constitutionality of
her conviction not contained within the trial
record.
We view the above allegations to be without merit.
We are of the
opinion that Rader either failed to prove that trial counsel's
performance was deficient or that such deficiency resulted in
actual prejudice. Id.
Next, Rader argues that the circuit court utilized the
incorrect standard of law in disposing of the RCr 11.42 motion.
The circuit court, however, utilized the Strickland standard.
We
simply perceive no merit to this argument.
Rader also maintains that her PFO I guilty plea was not
entered knowingly, intelligently or voluntarily.
Specifically,
appellant contends that trial counsel erroneously advised her
that if the direct appeal succeeded the PFO I guilty plea would
be automatically vacated.
Even when the court informed her
-5-
otherwise, she alleged that trial counsel instructed her to
remain silent and he would take care of the matter.
Rader argues
that she would not have entered the guilty plea if she had known
the truth, but would have insisted upon going to trial.
The face
of the record, however, refutes appellant's allegations.
Upon
entering the guilty plea, the court specifically asked Rader if
anyone had made any “commitments” to her concerning her plea to
which she answered “no”.
Moreover, appellant affirmatively
stated that she understood the nature and consequences of the
plea and entered into it upon her own accord.
Upon the whole, we
are of the opinion that the face of the record refutes
appellant's allegations that the PFO I guilty plea was not
entered knowingly, intelligently or voluntarily.
Sparks v.
Commonwealth, Ky. App., 721 S.W.2d 726 (1986); Hopewell, 687
S.W.2d 153.
As Rader's claims were refuted upon the face of the
record, we are of the opinion that the circuit court did not err
in summarily denying Rader's RCr 11.42 motion.
For the foregoing reasons, Appeal No. 1999-CA-000238-MR
is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Veronica Ruthann Rader,
Pro Se
Pewee Valley, KY
Albert B. Chandler, III
Attorney General of Kentucky
and
Samuel J. Floyd, Jr.
Assistant Attorney General
-6-
Frankfort, KY
-7-
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