GREGORY L. CROOK V. COMMONWEALTH OF KENTUCKY
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RENDERED: February 11, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001678-MR
GREGORY L. CROOK
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
ACTION NO. 94-CR-1800
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and SCHRODER, Judges.
GUDGEL, CHIEF JUDGE:
This is an appeal from an order of the
Jefferson Circuit Court denying an RCr 11.42 motion to vacate.
We affirm.
After escaping from River City Corrections while
serving several misdemeanor sentences, appellant Gregory L. Crook
broke into the residence of his ex-girlfriend.
home, he attacked her with a knife.
When she arrived
The victim suffered seven
serious stab wounds, and it was necessary for her to undergo
emergency surgery.
Appellant was indicted for first-degree assault,
second-degree burglary, and second-degree escape.
He pled guilty
to all three offenses pursuant to a plea agreement with the
Commonwealth, and he was sentenced to serve concurrent prison
terms of fifteen years on first-degree assault, ten years on
second-degree burglary, and five years on second-degree escape.
Given the nature of the offenses, appellant was classified as a
violent offender pursuant to KRS 439.3401, with the result that
he is ineligible for parole until he serves fifty percent of his
sentences.
A few months after he was sentenced, appellant filed a
complaint against his former attorney with the Kentucky Bar
Association (KBA).
Following an investigation, the KBA Board of
Governors found appellant’s trial attorney guilty of three counts
of professional misconduct.
In June 1996, the Kentucky Supreme
Court affirmed the KBA’s findings and suspended appellant’s trial
attorney from the practice of law for six months.
The court
found that the attorney had violated SCR 3.130-1.2(a), SCR
3.130-1.3, and SCR 3.130-1.4(a) and (b) by waiving the criminal
case to the grand jury contrary to his client’s wishes, by
failing to appear at appellant’s first arraignment in circuit
court, by failing to make a motion for a bond reduction at the
second scheduled arraignment, and by failing to stay in contact
with appellant during a five-month period.
On September 30, 1997, appellant filed an RCr 11.42
motion seeking an order vacating his sentence, based upon a claim
of ineffective assistance of counsel, due to the fact that his
trial attorney had been suspended from the practice of law for
misconduct in connection with his case.
the motion without a hearing.
The trial court denied
This appeal followed.
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Appellant presents five grounds to support his claim
that his trial attorney rendered ineffective assistance.
He
alleges that counsel failed to properly investigate the facts and
law, that counsel improperly waived the preliminary hearing
contrary to his wishes, that counsel’s waiver of a preliminary
hearing deprived him of due process and equal protection, that
application of the violent offender statute to him was arbitrary
and unconstitutional, and that the cumulative effect of counsel’s
errors allowed the prosecution to bolster its case with
prejudicial evidence.
Understandably, appellant’s arguments rely
heavily on the fact that the supreme court suspended his trial
attorney for professional misconduct.
However, while appellant’s contention is appealing, we
agree with the trial court’s observation that ethical violations
of the rules of professional conduct do not necessarily establish
that an accused received ineffective assistance of counsel.
The
two situations involve different principles and require separate
analyses.
As the Sixth Amendment right to counsel exists in order
to protect the fundamental right to a fair trial, this right
focuses on whether the result of the proceeding at issue was
fundamentally unfair or unreliable.
Lockhart v. Fretwell, 506
U.S. 364, 372, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).
In
order to establish ineffective assistance of counsel, a person
must satisfy a two-part test, showing both 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);
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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).
Where an appellant challenges a guilty plea based on ineffective
counsel, he must show both that counsel made serious errors
outside the wide range of professionally competent assistance,
McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25
L.Ed.2d 763 (1970), and that the deficient performance so
seriously affected the outcome of the plea process that, but for
the errors of counsel, there is a reasonable probability that the
appellant would not have pled guilty, but would have insisted on
going to trial, with a different outcome at trial.
Hill v.
Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203
(1985); Russell v. Commonwealth, Ky. App., 992 S.W.2d 871 (1999).
The burden is on the movant to overcome a strong presumption that
counsel’s assistance was constitutionally sufficient.
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Commonwealth v.
Pelfrey, Ky., 998 S.W.2d 460, 463 (1999).
The defendant bears
the burden of identifying specific acts or omissions alleged to
constitute deficient performance.
104 S.Ct. at 2066.
Strickland, 466 U.S. at 690,
In measuring prejudice, the relevant inquiry
is whether "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different.
A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Moore v.
Commonwealth, Ky., 983 S.W.2d 479, 488 (1998), cert. denied,
____U.S. ____, 120 S.Ct. 110, ___ L.Ed.2d ___ (1999).
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Even if we assume that appellant’s counsel rendered a
deficient performance in some areas, appellant has not
demonstrated that any such errors resulted in actual prejudice.
First, with respect to counsel’s waiver of a preliminary hearing
in district court, we note that there is no constitutional right
to a preliminary hearing.
S.W.2d 527, 530 (1968).
See Little v. Commonwealth, Ky., 438
361, 364 (8th Cir. 1975).
See also United States v. Neff, 525 F.2d
Indeed, in Commonwealth v. Watkins,
Ky., 398 S.W.2d 698 (1966), cert. denied, 384 U.S. 965, 86 S.Ct.
1596, 16 L.Ed.2d 677 (1966), the court held that the failure to
conduct a preliminary hearing does not render a conviction
invalid, as a preliminary hearing does not constitute a critical
stage in the proceedings.
Although appellant points out that the
defense may be able to obtain some information about the
prosecution’s case during a preliminary hearing, appellant has
not revealed any useful information that would have been
discovered had such a preliminary hearing taken place.
Likewise,
appellant’s reliance on the supreme court’s finding, that counsel
violated an ethical rule by waiving a preliminary hearing
contrary to his client’s wishes, is misplaced.
A mere
disagreement between counsel and client as to how to conduct the
defense does not amount to ineffective assistance of counsel.
See, e.g., Wilson v. Commonwealth, Ky., 836 S.W.2d 872 (1992),
cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479
(1993).
Thus, appellant has failed to show that counsel’s waiver
of a preliminary hearing, even contrary to his wishes,
prejudicially affected his decision to plead guilty.
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Next, we are of the opinion that appellant’s allegation
that his counsel was ineffective for not conducting an adequate
investigation fails due to a lack of any specificity as to this
issue.
Indeed, he has not identified anything which shows that
counsel’s investigation was inadequate.
In short, given the
absence of any concrete claim as to how counsel’s investigation
was inadequate, appellant has failed to meet his burden to
establish prejudice.
See, e.g., Centers v. Commonwealth, Ky.
App., 799 S.W.2d 51, 56 (1990)(defendant failed to establish
ineffective assistance of counsel where he “has not specifically
shown anything that his counsel failed to investigate or
discover, nor can he show how any such failure prejudiced his
case”).
Next, although appellant contends in the argument
section of his brief that his classification as a violent
offender was arbitrary and violative of due process, he fails to
discuss or explain the gravamen of his complaint in this regard.
Moreover, in any event we conclude that this complaint lacks
merit.
Pursuant to KRS 439.3401(1), any person who pleads guilty
to a Class B felony involving serious physical injury to the
victim is classified as a “violent offender,” who is ineligible
for parole until after serving the lesser of twelve years or
fifty percent of the imposed sentence.
It is settled that a
prisoner has no protected liberty interest in being paroled.
Belcher v. Kentucky Parole Board, Ky. App., 917 S.W.2d 584
(1996).
Further, the supreme court has rejected constitutional
due process and equal protection challenges to KRS 439.3401,
finding the statute is not arbitrary, capricious or
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unconstitutionally vague.
Sanders v. Commonwealth, Ky., 844
S.W.2d 391 (1992); Huff v. Commonwealth, Ky., 763 S.W.2d 106
(1988).
Here, appellant pled guilty to the Class B felony of
first-degree assault, stemming from the multiple serious stab
wounds he inflicted on the victim.
Because appellant’s
designation as a violent offender under the statute was clearly
appropriate, his attorney did not furnish him ineffective
assistance by failing to challenge that designation.
Given our conclusions to this point, we need not
address appellant’s contention regarding cumulative errors.
Finally, we note that no evidentiary hearing was required herein,
as the issues raised were refuted on the record or the
allegations, even if true, would be insufficient to invalidate
the conviction.
Wilson v. Commonwealth, Ky., 975 S.W.2d 901, 904
(1998), cert. denied, ____ U.S. ____, 119 S.Ct. 1263, 143 L.Ed.2d
359 (1999); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998),
cert. denied, ____ U.S. ____, 119 S.Ct. 1266, 143 L.Ed.2d 361
(1999).
The court’s order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory L. Crook
Central City, KY
A.B. Chandler III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, KY
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