JOHN LEONARD RICHIE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 1, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001379-MR
JOHN LEONARD RICHIE
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST A. JASMIN, JUDGE
ACTION NO. 95-CR-002233
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and MILLER, Judges.
COMBS, JUDGE:
This is an appeal by John Leonard Richie from an
order of the Jefferson Circuit Court denying his Rule of Criminal
Procedure (RCr) 11.42 motion for post-conviction relief.
Richie
contends that he received ineffective assistance of counsel in
the course of deciding to enter a guilty plea and that his guilty
plea was not knowing, intelligent, and voluntary.
On September 7, 1995, Richie was indicted by the
Jefferson County Grand Jury for complicity to wanton murder
(Kentucky Revised Statutes (KRS) 507.020 & 502.020); complicity
to first-degree robbery (KRS 515.020 & KRS 502.020); and
complicity to first-degree burglary (KRS 511.020 & KRS 502.020).
Indicted as co-defendants were Damon Lavelle Sheppard and
Carrisse Stewart.
The indictment charged that on August 21,
1995, the co-defendants, acting either alone or in complicity
with others, entered the apartment residence of Dion Crawford at
2100 Stoneybrook Drive in Louisville, robbed Crawford, and caused
Crawford’s death.
Richie entered a plea of not guilty and subsequently
proceeded to trial along with his co-defendants.
Following
opening statements, Richie accepted a plea offer from the
Commonwealth.
In return for Richie’s guilty plea, the
Commonwealth agreed to amend the indictment to reflect a single
count on the offense of first-degree hindering prosecution or
apprehension (KRS 520.120).
On September 26, 1996, the trial
court conducted a hearing, carefully making inquiry and engaging
in a colloquy with Richie for the purpose of determining whether
his plea agreement was knowing, intelligent, and voluntary.
At
the conclusion of the hearing, the court determined that the plea
agreement had been made knowingly, intelligently, and
voluntarily; the trial court accepted Richie’s guilty plea.
Richie was sentenced to two and one-half years’ imprisonment and
was granted probation.
On July 31, 1998, Richie filed a motion to vacate
sentence pursuant to RCr 11.42.
Following a hearing on April 19,
1999, the trial court entered an order denying Richie’s RCr 11.42
motion on May 20, 1999.
This appeal followed.
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Richie contends that the trial court erred in ruling
that he did not receive ineffective assistance of counsel in the
course of entering his guilty plea.
In order to establish a
claim of ineffective assistance of counsel, an appellant must
satisfy a two-part test: (1) that counsel's performance was
deficient and (2) 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,
1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
478 U.S.
Where a guilty plea
is challenged due to ineffective assistance of counsel, the
appellant must show 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
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).
Appellant bears the burden
of proof to demonstrate that both prongs of Strickland have been
met.
Osborne v. Commonwealth, Ky. App., 992 S.W.2d 860, 863
(1998).
The mere fact that counsel advised or permitted a
defendant to plead "guilty" does not constitute ineffective
assistance of counsel.
Beecham v. Commonwealth, Ky., 657 S.W.2d
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234, 237 (1983).
When the trial court has conducted an
evidentiary hearing, the reviewing court must defer to the
determinations of fact and the assessment of witness credibility
made by the trial judge.
McQueen v. Commonwealth, Ky., 721
S.W.2d 694 (1986); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905,
909 (1998).
We are able to identify three specific allegations of
deficient performance from Richie’s brief.
First, the guilty
plea was made while Richie was in a precarious state of mind
because of the pending jury trial.
Trial counsel was aware of
his mental disturbance but failed to adapt the nature and
character of his representation to accommodate that precarious
state of mind.
Second, trial counsel advised Richie that they
could not fight the charges and that he (Richie) would be stupid
not to accept the plea — even though the offer was wholly
distasteful to Richie.
Third, trial counsel failed to apprise
Richie adequately and completely of the impact and ramifications
of his waiver, thereby depriving Richie of several fundamental
constitutional rights.
The first allegation is too vague to be susceptible of
accurate review, and we will not attempt to address it in detail.
A RCr 11.42 motion must be specific about grounds and facts
challenging a conviction.
S.W.2d 856, 858 (1983).
Gilliam v. Commonwealth, Ky., 652
Richie has failed to meet his burden of
showing that trial counsel rendered deficient performance by
failing to comprehend Richie’s “precarious state of mind” and to
adapt his representation to accommodate his delicate mental
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condition.
We simply cannot discern a basis in fact for this
allegation.
With regard to the second allegation of deficient
performance, we cannot agree that trial counsel’s advice to
accept the guilty plea was deficient performance.
Richie was
charged with a capital offense, carrying a possible sentence of
20 years to life or life without parole for 25 years1 and with
two Class B felonies, each carrying the possibility of 10 to 20
years.
As a result of his guilty plea, Richie was able to plead
out of the original charges in exchange for a single Class D
felony and a sentence of two and one-half years.
Additionally,
Richie received probation.
The evidence presented at the evidentiary hearing
disclosed that the Commonwealth had a viable case against Richie.
Richie had sold the murder weapon to co-defendant Sheppard; that
gun was found at the murder scene and was still registered in
Richie’s name.
The day following Crawford’s death, Richie
falsely reported that the gun had been stolen.
Sheppard’s
cellular phone was found near Crawford’s apartment shortly after
the murder, and phone records disclose calls between Richie and
Sheppard close to the time of the murder.
Sheppard was present
at the murder scene and was shot in the struggle which led to
Crawford’s death.
In his apartment, Richie had $3,000.00 in cash
— which was later "trained on" by a drug-sniffing dog.
1
The Commonwealth was not seeking the death penalty against
Richie.
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In weighing the unknown risks of going to trial versus
the more certain outcome of the plea bargain, we cannot agree
that trial counsel rendered deficient performance in counseling —
or in vigorously and strongly advising — Richie to plead guilty.
Richie’s final allegation of deficient performance
(that trial counsel failed to inform him adequately of his
constitutional rights) is contradicted by the terms of the plea
agreement itself as well as by Richie’s statements in open court.
Moreover, even if trial counsel did not fully advise Richie of
the constitutional rights that would be waived by entering a
guilty plea, the trial court meticulously informed him of these
rights at the September 26, 1999, hearing at which the trial
court inquired into the voluntariness of the guilty plea.
Thus,
even if we accept Richie’s allegation as true, there was no
prejudice associated with the allegedly deficient performance
because Richie was ultimately fully informed of the waivers
inherent in his guilty plea.
The critical issue in this case is whether Richie
entered his guilty plea knowingly, intelligently, and
voluntarily.
The test for determining the validity of a guilty
plea is whether the plea
represents a voluntary and intelligent
choice among the alternative courses of action open to the
defendant.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160,
164, 27 L.Ed.2d 162 (1970).
There must be an affirmative showing
in the record that the plea was intelligently and voluntarily
made. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711,
23 L.Ed.2d 274 (1969).
However, "the validity of a guilty plea
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is determined not by reference to some magic incantation recited
at the time it is taken but from the totality of the
circumstances surrounding it."
Kotas v. Commonwealth, Ky., 565
S.W.2d 445, 447 (1978), (citing Brady v. United States, 397 U.S.
742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970));
Sparks v.
Commonwealth, 721 S.W.2d at 727.
The record of the plea agreement discloses that Richie
acknowledged that he understood the charges against him, 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 source of each accusation against him.
The agreement stated
that trial counsel had informed Richie of any possible defenses
that he may have.
The agreement also recited that Richie
understood his various rights, including the rights:
to plead
not guilty; to a speedy and public trial; to see, to hear, and to
confront all witnesses called against him; and to compel the
production of any evidence in his favor.
The agreement
acknowledges that Richie’s decision to enter a guilty plea was
made freely and voluntarily and of his own accord.
In addition, the record discloses that before accepting
Richie’s plea, the trial court engaged in a lengthy colloquy to
insure that Richie understood the nature of the plea.
When the
court advised him of the constitutional rights that he was
waiving by pleading guilty, Richie stated that he understood and
that he still desired to plead guilty.
In response to direct
questioning by the trial court, Richie answered in the
affirmative when asked if his plea was entered voluntarily and
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freely.
This exchange occurred in open court.
Solemn
declarations in open court carry a strong presumption of verity.
Centers v. Commonwealth, Ky. App., 79 S.W.2d 51, 54 (1990).
We are persuaded that Richie received effective assistance of
counsel and that his guilty plea was knowing, intelligent, and
voluntary.
Richie also contends that trial counsel rendered
ineffective assistance by failing to prepare properly for trial.
Even if this allegation were true, it is rendered moot by the
fact that there was no trial.
Richie instead entered a plea —
which we have determined to have been made knowingly,
intelligently, and voluntarily.
We agree with the analysis of
the trial court as to this issue:
At the hearing the Petitioner admitted
meeting with his attorney six times and that
his attorney had subpoenaed at least 20
witnesses. The Petitioner’s attorney has
been practicing criminal law for thirty (30)
years and the Petitioner received a sentence
of two and one half (2/12) years as opposed
to twenty to life. Accordingly, the
Petitioner’s testimony at his hearing showed
that he received competent and effectively
prepared counsel.
For the foregoing reasons, the order of the Jefferson
Circuit Court denying the appellant’s motion for post-conviction
relief is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Ramon McGee
Louisville, KY
Albert B. Chandler III
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, KY
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