DANNY SALEM BELL v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: April 7, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002529-MR
DANNY SALEM BELL
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
INDICTMENT NOS. 96-CR-00012 & 96-CR-00075
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Danny Salem Bell appeals from an order of the
Marion Circuit Court entered on September 18, 1998, denying his
RCr1 11.42 motion seeking to vacate and set aside his ten-year
prison sentence.
Having concluded that Bell is not entitled to
RCr 11.42 relief, we affirm.
On January 5, 1996, the Marion County Grand Jury
indicted Bell under Indictment No. 96-CR-12, on one felony count
of operating a motor vehicle while license suspended for DUI
1
Kentucky Rules of Criminal Procedure.
(KRS2 189A.090), one felony count of wanton endangerment in the
first degree (KRS 508.060), one misdemeanor count of attempting
to elude (KRS 189.393), and one count of being a persistent
felony offender in the first degree (PFO I)(KRS 532.080).
These
charges arose out of an incident occurring on December 24, 1995,
involving a police vehicle chase at speeds in excess of 100 miles
per hour.
On March 8, 1996, Bell was released from jail on bond
on the condition that “he not drive any motor vehicle.”
On May 10, 1996, Bell was arrested again for driving
under the influence of alcohol and various other charges.
On May
13, 1996, the Marion County Grand Jury issued another indictment
of Bell under Indictment No. 96-CR-75 involving the incident on
May 10th charging him with one felony count of operating a motor
vehicle while license suspended for DUI (KRS 189A.090), one
misdemeanor count of driving under the influence (KRS 508.060),
one misdemeanor count of reckless driving (KRS 189.290), one
misdemeanor count of terroristic threatening (KRS 508.080), and
one count of being a PFO I (KRS 532.080).
On July 29, 1996, Bell entered guilty pleas in both
cases under Indictment No. 96-CR-12 and Indictment No. 96-CR-75
pursuant to a plea agreement with the Commonwealth.
Under the
agreement, the Commonwealth recommended concurrent sentences of
ten years on each of two counts of operating a motor vehicle
while license suspended for DUI, and wanton endangerment in the
first degree as enhanced under the PFO I status offense.
The
Commonwealth moved to dismiss the remaining charges of attempting
2
Kentucky Revised Statutes.
-2-
to elude, driving under the influence, reckless driving, and
terroristic threatening.
On September 18, 1996, the trial court
sentenced Bell consistent with the Commonwealth’s recommendation
to a total prison sentence of ten years.
On September 2, 1998, Bell filed an RCr 11.42 motion
seeking to vacate his sentence under both indictments alleging
that the indictments were illegally issued and that he had
received ineffective assistance of counsel.
On September 18,
1998, the trial court summarily denied the motion without a
hearing.
This appeal followed.
Bell argues that he was denied his constitutional right
to due process because the indictments were illegally obtained.
He contends that his guilty plea to the counts charging him with
operating a motor vehicle while his license was suspended for DUI
should be reversed because his license had been suspended
effective August 1987 to August 2002 for failing to pay a civil
judgment related to a traffic accident.3
Relying on Corman v.
Commonwealth,4 and an Opinion of the Attorney General,5 Bell
maintains that he cannot be convicted of a violation of KRS
189A.090 because his driver’s license was suspended pursuant to
KRS 186.560(f), and not for DUI under KRS 189A.010.
3
See KRS 187.400 and KRS 187.410. Bell also claims his
license was suspended for failing to stop and disclose his
identity at the scene of an accident, see KRS 186.560(f);
however, the record does not substantiate this claim.
4
Ky.App., 908 S.W.2d 122 (1995).
5
OAG 89-30.
-3-
First, we note that Bell’s argument raises a challenge
to the sufficiency of the evidence.
An indictment cannot be
quashed nor a judgment of conviction reversed on the ground of
insufficient evidence before the grand jury.6
Thus, any
challenge to the indictment based on the facts supporting the
operating a motor vehicle on a suspended license is unavailing.
Similarly, by pleading guilty, Bell cannot now collaterally
attack the judgment based on sufficiency of the evidence.
A
valid guilty plea constitutes an admission to the underlying
facts or elements of an offense.7
Entry of a voluntary,
intelligent guilty plea precludes a post-judgment challenge to
the sufficiency of the evidence.8
Therefore, Bell’s substantive
argument that the evidence did not support his conviction for
operating a motor vehicle while license suspended for DUI is not
cognizable under RCr 11.42.
Bell’s second argument constitutes a variant of the
first argument involving the sufficiency of the evidence.
He
contends that he received ineffective assistance of counsel
because his attorney advised him to plead guilty even though the
charge of operating a motor vehicle while license suspended for
DUI was improper since his license had been suspended for failure
6
RCr 5.10.
7
Toppass v. Commonwealth, Ky.App., 799 S.W.2d 587, 589
(1990); Skeans v. Commonwealth, Ky.App., 912 S.W.2d 455, 456-47
(1995); United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757,
762, 102 L.Ed.2d 927 (1989).
8
Taylor v. Commonwealth, Ky.App., 724 S.W.2d 223, 225
(1986); Lovett v. Commonwealth, Ky.App., 858 S.W.2d 205, 207
(1993).
-4-
to pay a civil judgment rather than DUI.
A review of the record
refutes this argument.
In order to establish ineffective assistance of
counsel, a person must satisfy a two-part test showing that
counsel’s performance was deficient, and that the deficiency
caused actual prejudice affecting the outcome of the proceeding.9
Where an appellant challenges a guilty plea based on ineffective
assistance of counsel, he must show both that counsel made
serious errors outside the wide range of professionally competent
assistance,10 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 defendant
would not have pled guilty, but would have insisted on going to
trial.11
In the case sub judice, the record shows that Bell had
numerous prior convictions for DUI and that the Transportation
Cabinet had issued several suspension orders based on DUI.
Both
indictments listed two of Bell’s prior felony convictions for
operating a motor vehicle while his license was suspended or
revoked for DUI (third offense) in support of the counts for
operating a motor vehicle while license suspended for DUI: 1)
9
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 37 (1986).
10
McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441,
1449, 25 L.Ed.2d 763 (1970).
11
Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d
203 (1985); Russell v. Commonwealth, Ky.App., 992 S.W.2d 871
(1999).
-5-
Marion Circuit Court Indictment No. 91-CR-053 judgment dated
March 2, 1992; and 2) Marion Circuit Court Indictment No. 92-CR014 judgment dated March 2, 1992.
The indictments also listed a
Marion District Court judgment dated November 29, 1994, for
driving under the influence.
Even though Bell’s license was
suspended for failure to pay a civil judgment, it is clear that
it also had been suspended at the relevant times for DUI.
The
fact that his license had been suspended for a violation other
than DUI did not preclude prosecution under KRS 189A.090 for
operating a motor vehicle while license suspended for DUI because
that fact was not the sole basis for the suspended status and
there were DUI convictions to support the charges for operating a
motor vehicle while license suspended for DUI.
Consequently,
Bell’s attorney was not deficient for failing to challenge the
indictments based on sufficiency of the evidence and any such
challenge would have been futile.12
Bell has not demonstrated
either deficient performance or actual prejudice to support his
claim of ineffective assistance of counsel.
A hearing was not
required because all issues could be determined on the face of
the record.13
Thus, the trial court properly denied Bell’s RCr
11.42 motion without a hearing.
For the foregoing reasons, we affirm the order of the
Marion Circuit Court.
12
See e.g., Robbins v. Commonwealth, Ky.App., 719 S.W.2d
742, 743 (1986)(counsel not required to make fruitless motion to
suppress); Liss v. United States, 915 F.2d 287, 291 (7th Cir.
1990)(attorney not obligated to raise meritless defense).
13
Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743 (1993);
RCr 11.42(5).
-6-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
A.B. Chandler III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
