GRADY LEE CALDWELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 28, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002055-MR
GRADY LEE CALDWELL
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE EDWIN A. SCHROERING, JR., JUDGE
ACTION NO. 94-CR-03032
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MCANULTY AND MILLER, JUDGES.
JOHNSON, JUDGE: Grady Lee Caldwell appeals from an opinion and
order rendered by the Jefferson Circuit Court on July 20, 1998,
denying his motion pursuant to RCr1 11.42 to vacate, set aside or
correct his sentence.
Having concluded that Caldwell is not
entitled to relief, we affirm.
1
Kentucky Rules of Criminal Procedure.
On March 14, 1995, Caldwell pled guilty to two counts
of burglary in the first degree, KRS2 511.020, two counts of
robbery in the first degree, KRS 515.020, one count of burglary
in the second degree, KRS 511.030, one count of robbery in the
second degree, KRS 515.030, and to being a persistent felony
offender in the first degree (PFO I) under KRS 532.080. Caldwell
was sentenced to prison on April 25, 1995, in accordance with the
Commonwealth’s offer of a ten-year sentence to serve on each
count with the sentences to run concurrently and to be enhanced
to 20 years to serve pursuant to the PFO I conviction.
On March 30, 1998, Caldwell filed an RCr 11.42 motion
to vacate, set aside or correct his sentence claiming ineffective
assistance of counsel.
The Commonwealth filed a response to the
motion on May 21, 1998, refuting the claims made by Caldwell.
On July 20, 1998, without holding an evidentiary hearing or
appointing counsel to represent Caldwell, the trial court denied
Caldwell’s RCr 11.42 motion.
This appeal followed.
In reviewing the question of ineffective assistance of
counsel, we must consider the well-established test from
Strickland v. Washington.3
In Strickland, the Supreme Court
established the following two-prong test for analyzing
ineffective assistance of counsel claims:
First, the defendant must show that
counsel’s performance was deficient. This
2
Kentucky Revised Statutes.
3
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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requires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be
said that the conviction. . . resulted from a
breakdown in the adversary process that
renders the result unreliable.”4
Caldwell argues that the trial court erred in denying
his RCr 11.42 motion because he “was denied the chance to prove
that the prosecution failed to keep the plea agreement.”
Caldwell claims that the Commonwealth’s attorney visited him at
the jail to “negotiate terms for a plea agreement.”
Caldwell
states in his brief and in a letter to his appointed counsel,
Alex Fleming, that he was told the prosecution would recommend a
lenient sentence in exchange for testimony against a codefendant.
Caldwell describes an alleged agreement in which he
would serve a prison term of seven and one-half years based on
good-time credits.
Caldwell’s letter to counsel states as
follows:
Mr. Fleming, you stood up and announced in
Court to the Judge, Mr. Shoering [sic] as
stated: “Judge, I want the records to show
that this is infact [sic] a Alfo [sic] Plea,
and that because my client. . . gave full
testimony against his co-defendant (Mr.
Gardner Yates)[w]e (myself and the
4
Gall v. Commonwealth, Ky., 702 S.W.2d 37, 39-40 (1985);
cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724
(1986) (quoting Strickland, supra).
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prosecutor) both agreed to allow Mr. Cladwell
[sic] good-time on the PFO I; 20 year
sentence. Meaning, instead of Mr. Caldwell
serving (10) straight years before the Parole
Board, he would serve seven (7) years and six
(6) months before he does [sic] meet the
Parole Board.”5
Fleming responded to Caldwell’s letter as follows:
My recollection of the facts surrounding your
plea and plea negotiations differs greatly
from your account. I can state unequivocally
that I never told you or anyone else that I
have represented that someone serving a PFO I
sentence would not have to serve ten (10)
years before seeing the parole board
(emphasis original).
Although I am sure I discussed good time
credit with you, I did not state that the
good time would have any effect on your
parole eligibility.
This Court’s review of the videotaped plea does not
reveal that Caldwell entered an Alford plea, a fact which
Caldwell himself admits in his letter to counsel.
Caldwell
states:
I want to also say, that I do have a copy of
my vidio [sic] tape with my final sentencing
on it, bu[t] Mr. Fleming, it is very strange
that this announcement is not on tape.
In light of the fact that the record refutes Caldwell’s
allegations, we agree with the trial court’s well-reasoned
opinion and adopt the following:
Lastly, [Caldwell] alleges the
Commonwealth has not abided by the plea
agreement. However, [he] fails to put forth
any evidence to illustrate his contention.
5
The record does not reflect that Mr. Fleming made these
remarks.
-4-
Essentially, [Caldwell] argues he was
misinformed as to his minimum parole
eligibility. Defense counsel adamantly
denies this in his letter to [Caldwell]
attached to the file, and there is nothing in
the record to support [his] claim. A
defendant’s assertion that his guilty plea
was invalid because he was not informed of
some of the collateral consequences of his
plea is without merit. Jewell v.
Commonwealth, Ky., 725 S.W.2d 593 (1987).
Bare allegations are an insufficient basis for RCr 11.42 relief.6
Caldwell has not alleged any facts sufficient to require reversal
of the trial court’s findings.
Caldwell also argues that he was “directed to plea
[sic] guilty to charges that were deficient as to the elements
and the facts did not support a Robbery I, and Burglary I
offense.”
Sufficiency of evidence is not an issue that can be
properly raised in a post-conviction proceeding under RCr 11.42.7
In Taylor v. Commonwealth,8 a case similar to the one
before us, this Court held:
Entry of a voluntary, intelligent plea of
guilty has long been held by Kentucky courts
to preclude a post-judgment challenge to the
sufficiency of the evidence (citations
omitted). The reasoning behind such a
conclusion is obvious. A defendant who
elects to unconditionally plead guilty admits
the factual accuracy of the various elements
of the offense with which he is charged. By
6
King v. Commonwealth, Ky., 408 S.W.2d 622 (1966).
7
Nickell v. Commonwealth, Ky., 451 S.W.2d 651, 652 (1970).
See also Brock v. Commonwealth, Ky., 479 S.W.2d 644 (1972);
Harris v. Commonwealth, Ky., 441 S.W.2d 443 (1969); King, supra.
8
Ky.App., 724 S.W.2d 223 (1986).
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such an admission, a convicted appellant
forfeits the right to protest at some later
date that the state could not have proven
that he committed the crimes to which he pled
guilty. To permit a convicted defendant to
do so would result in a double benefit in
that defendants who elect to plead guilty
would receive the benefit of the plea bargain
which ordinarily precedes such a plea along
with the advantage of later challenging the
sentence resulting from the plea on grounds
normally arising in the very trial which
defendant elected to forego.9
Accordingly, we hold that since Caldwell does not argue on appeal
that his plea was not voluntarily and intelligently entered, he
forfeited his right to argue that the evidence relied upon by the
Commonwealth was insufficient to convict him had he not pled
guilty.
Caldwell claims that he was improperly denied an
evidentiary hearing on his RCr 11.42 motion and that since he was
proceeding in forma pauperis that he was improperly denied
appointment of counsel.
RCr 11.42 requires a hearing on a motion
to vacate only “[i]f the answer raises a material issue of fact
that cannot be determined on the face of the record” (emphasis
added).10
The trial court in its opinion and order citing
Newsome v. Commonwealth,11 and Hopewell v. Commonwealth,12
concluded that “the record refutes [Caldwell’s] allegations.”
9
Id. at 225.
10
See also Maggard v. Commonwealth, Ky., 394 S.W.2d 893, 894
(1965).
11
Ky., 456 S.W.2d 686 (1970).
12
Ky.App., 687 S.W.2d 153 (1985).
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Where the material issues of fact can be determined on the face
of the record, it is unnecessary for the trial court to order an
evidentiary hearing.13
Having reviewed the record, we hold that
the trial court’s findings are not clearly erroneous and Caldwell
was not entitled to an evidentiary hearing on his RCr 11.42
motion.
Caldwell further contends that he was denied effective
assistance of counsel in perfecting his RCr 11.42 motion since he
was proceeding in forma pauperis.
In Commonwealth v. Stamps,14
our Supreme Court held that an RCr 11.42 motion does not require
appointment of counsel, and stated as follows:
Thus we are squarely confronted with
whether our decision in Commonwealth v. Ivey,
[Ky., 599 S.W.2d 456 (1980)] at p. 337,
mandates automatic reversal in every case
where a defendant proceeding in forma
pauperis has filed an RCr 11.42 proceeding
and requested appointment of counsel, but the
trial court has failed to provide one. KRS
31.110 provides for the appointment of
counsel at public expense whenever a “needy
person” is entitled to be represented by an
attorney. In Ivey, we hold [sic] that “KRS
31.110 and RCr 11.42 are complimentary and
clearly provide for appointment of counsel in
the situation presented.” 599 S.W.2d at 458.
But an RCr 11.42 proceeding is not a direct
appeal with a constitutional right to an
attorney. Ross v. Moffitt, 417 U.S. 600, 94
S.Ct. 2437, 41 L.Ed.2d. 341 (1974)(emphasis
added).15
13
Glass v. Commonwealth, Ky., 474 S.W.2d 400 (1971) (citing
Messer v. Commonwealth, Ky., 454 S.W.2d 694 (1970)).
14
Ky., 672 S.W.2d 336 (1984).
15
Id. at 339.
-7-
Since the trial court determined that based on the face of the
record Caldwell’s motion was without merit, the trial court was
not required to appoint counsel to search for supplementary
grounds for RCR 11.42 relief.16
In the case sub judice, Caldwell has clearly failed to
meet either prong of the Strickland test.
Therefore, we cannot
say that the trial court’s findings were clearly erroneous.
Accordingly, the judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Grady Lee Caldwell, pro se
LaGrange, KY
A.B. Chandler, III
Attorney General
David A. Smith
Asst. Attorney General
Frankfort, KY
16
Stamps, supra.
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