EARNIE RAY COUCH v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 9, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003129-MR
EARNIE RAY COUCH
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 95-CR-00117
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND TACKETT, JUDGES.
TACKETT, JUDGE:
This is an appeal by Earnie Ray Couch (Couch)
from an order of the Marion Circuit Court denying his motion to
alter, amend, or vacate his sentence pursuant to Rule of Criminal
Procedure (RCr) 11.42.
We affirm.
On November 20, 1995, Couch was indicted for two counts
of second-degree burglary, theft by unlawful taking over $300.00,
and first-degree persistent felony offender.
The charges
resulted from two break-ins into the residence of Alan Deverney.
On April 15, 1996, Couch entered into a plea agreement with the
Commonwealth.
Under the terms of the agreement, Couch agreed to
plead guilty to one count of second-degree burglary, one count of
theft by unlawful taking over $300.00, and to being a seconddegree persistent felony offender.
The agreement provided that
Couch would receive a sentence of fifteen years’ imprisonment on
the second-degree burglary charge as enhanced by the persistent
felony offender count, and ten years’ imprisonment on the theft
by unlawful taking charge, to run concurrent with the enhanced
burglary sentence for a total of a fifteen year sentence.
On
April 17, 1996, judgment was entered pursuant to the plea
agreement, and on June 3, 1996, Couch was sentenced in accordance
with the agreement.
On August 12, 1998, Couch filed a motion to vacate, set
aside, or correct judgment pursuant to RCr 11.42.
On September
18, 1998, the trial court issued an order denying the motion
without a hearing.
This appeal followed.
Couch contends that he is entitled to have his guilty
plea vacated because he received ineffective assistance of
counsel.
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
resulted in actual prejudice affecting the outcome.
Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984);
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
assistance of 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.
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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 defendant would not have pled guilty, but
would have insisted on going to trial.
Hill v. Lockhart, 474
U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985);
Sparks
v. Commonwealth, Ky. App., 721 S.W.2d 726, 727-28 (1986).
First, Couch contends that he received ineffective
assistance because “trial counsel never discussed the facts of
the case with Appellant, never informed him of any wittnesses
[sic] against him, never discussed any possible defense nor made
any Motions before the Court, as Appellant had requested.”
Trial counsel should, of course, communicate with a defendant
regarding the facts of the case, inform the defendant of any
witnesses the Commonwealth may call to the stand, examine
potential defenses available to the defendant, and perhaps also
discuss possible motions.
However, the allegations of
ineffective assistance of counsel raised by Couch in this motion
are either refuted by the record, or Couch has failed to
demonstrate prejudice as required by Strickland.
Couch’s contention that trial counsel never discussed
the facts of the case with him is refuted by the record.
In the
April 15, 1996, plea agreement, Couch stated that he had
“received a copy of the Indictment . . . before being called upon
to plead, and [had] discussed it with my attorney and fully
[understood] every charge made against me in this case.”
In
addition, Couch stated “I have told my attorney all the facts and
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surrounding circumstances as known to me concerning the matters
mentioned in the Indictment . . . and believe that my attorney is
fully informed as to all such matters.”
Couch further failed to demonstrate prejudice in trial
counsel’s “failure to inform him of any witnesses against him.”
Couch did not identify any witnesses he was aware of at the time
of his plea, nor what those witnesses’ testimony would have been.
Furthermore, Couch failed to specify why the testimony of any
witness would have compelled him to go to trial.
An evidentiary
hearing is not a forum to investigate whether any such witnesses
may exist.
“[T]he purpose of an RCr 11.42 motion is to provide a
forum for known grievances and not an opportunity to conduct a
fishing expedition for potential grievances.”
Sanborn v.
Commonwealth, Ky., 975 S.W.2d 905, 910 (1998).
Couch’s allegation that trial counsel failed to discuss
any defenses with him is refuted by the record.
In his plea
agreement, Couch stated that, “[m]y attorney has . . . informed
me and has counseled and advised me at length as to the nature
and cause of each accusation against me as set forth in the
Indictment . . . and as to any possible defenses I might have in
this case.”
In addition, Couch never identified any defense
which have compelled him to go to trial.
Consequently, there is
no evidence of prejudice with regard to this issue.
Couch’s allegation that trial counsel failed to file
motions fails both prongs of the Strickland test.
Counsel is not
per se ineffective merely by failing to file pretrial motions.
Couch has failed to identify the motions trial counsel should
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have filed and how, by trial counsel’s failure to file those
motions, he was prejudiced.
The burden of proof is upon Couch to
demonstrate that both prongs of Strickland have been met.
Osborne v.Commonwealth, Ky. App., 992 S.W.2d 860, 863 (1998).
There is no evidence that either prong has been met in this
argument.
Next, Couch argues that he received ineffective
assistance because trial counsel failed to seek to have his
charges reduced to a “lower class of crime.”
It is apparently
Couch’s theory that his criminal activity did not satisfy the
elements for second-degree burglary conviction, but, rather, may
have warranted only a conviction for first-degree criminal
trespass.
Trial counsel did not render deficient performance by
not seeking to have Couch’s burglary indictment amended to firstdegree criminal trespass.
First, the trial court is generally
without authority to amend an indictment prior to trial, so any
motion would have been futile.
501
See Coleman v. Commonwealth, Ky.,
S.W.2d 583 (1973) cert. denied, 94 S.Ct. 1615, 416 U.S. 908,
40 L. Ed. 2d 113 (1974) (A trial court has no authority to amend
an indictment to charge an additional or different offense).
Second, based upon Couch’s own oral statements, he in fact broke
into the home of Alan Deverney on two occasions.
Following the
break-ins, Couch did not merely remain unlawfully in the dwelling
so as to be guilty of only first-degree criminal trespass;
rather, upon breaking into the dwelling he committed theft, as
evidenced by the numerous items he took and concealed at his
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sister’s residence.
Thus, there was no deficient performance of
trial counsel in failing to file a motion to reduce the burglary
charge.
Finally, Couch contends that he received ineffective
assistance because trial counsel “failed to present any
mitigating evidence and witnesses during [the] penalty phase of
his court proceedings.”
Specifically, Couch alleges that trial
counsel failed to present evidence at sentencing of his “desire
to withdraw his involuntary and unintelligent guilty plea,” and,
further, failed to present evidence regarding his state of mind
at the time of sentencing.
Couch contends that his mental state
was affected at sentencing because he had been arrested just
hours before sentencing “for sniffing paint and intoxication.”
These arguments address themselves to the voluntariness
of the guilty plea rather than to mitigation.
Once it is
determined that the guilty plea was rendered voluntarily and
intelligently, the plea confesses everything charged in the
indictment.
(1986).
Taylor v. Commonwealth, Ky. App., 724 S.W.2d 223
The simple fact that counsel advises or permits a
defendant to plead guilty does not constitute ineffective
assistance of counsel.
234, 237 (1983).
Beecham v. Commonwealth, Ky., 657 S.W.2d
The decision to plead guilty or not guilty is a
decision reserved solely for the accused based on his intelligent
and voluntary choice.
Wiley v. Sowders, 647 F.2d 642, 648 (6th
Cir. 1981), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70
L.Ed.2d 630 (1981).
The record reflects that Couch voluntarily,
knowingly and intelligently made the decision to plead guilty and
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was aware of the ramifications of such a plea.
Boykin v.
Alabama, 395 U.S. 238, 241, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274
(1969).
In the plea agreement, Couch acknowledged that he
understood the charges against him and that he had told his
attorney all of the facts surrounding the case and that his
attorney had counseled him at length as to the nature and cause
of each accusation against him.
The agreement also stated that
trial counsel had informed Couch of any possible defenses that he
may have.
The agreement also stated that he understood his right
to plead not guilty, of his right to a speedy and public trial;
of his right to see, hear, and confront all witnesses called
against him; and of the right to compel the production of any
evidence in his favor.
decision to enter a
The agreement also states that the
guilty plea was made freely and voluntarily
and of Couch’s own accord.
Couch maintains that he later changed his mind about
the guilty plea and sought to withdraw the plea prior to his
sentencing hearing on June 3.
The record does not contain the
videotape or transcript of that hearing; however, the judgment
and sentence order dated June 3, 1996, and entered on June 4
1996, contains the finding that Couch understood the nature of
the charges against him and that his guilty plea was voluntary.
“[W]hen the complete record is not before the appellate court,
that court must assume that the omitted record supports the
decision of the trial court.”
S.W.2d 143, 145 (1985).
Commonwealth v. Thompson, Ky., 697
Hence, we must assume that the trial
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court’s sentencing order finding that Couch’s plea was voluntary
is supported by the omitted portion of the record.
Couch’s contention that he was intoxicated likewise
fails to demonstrate that his guilty plea was not voluntarily
made.
Couch signed his plea agreement on April 15, 1996.
Therein he acknowledged that he fully understood the charges
against him and the consequences of his plea.
hearing was not until June 3.
The sentencing
In addition, the trial court’s
sentencing order contains the finding that Couch’s plea was
voluntary.
For the foregoing reasons the September 18, 1998, order
of the Marion Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Earnie Ray Couch, Pro Se
St. Mary, Kentucky
Albert B. Chandler III
Attorney General
Courtney A. Jones
Assistant Attorney General
Frankfort, Kentucky
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