RALPH SHOLLER APPEALS v. COMMONWEALTH OF KENTUCKY
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RENDERED: February 2, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001688-MR
RALPH SHOLLER
APPELLANT
APPEALS FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 96-CR-00001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE:
Ralph Sholler has appealed from an order of the
Kenton Circuit Court entered on June 29, 1999, that denied his
motion for post-conviction relief pursuant to RCr1 11.42.
Having
concluded that the trial court did not err in denying relief,
we affirm.
1
Kentucky Rules of Criminal Procedure.
On January 5, 1996, Ralph F. Sholler was indicted for
two counts of robbery in the first degree (KRS2 515.020); one
count of burglary in the first degree(KRS 511.020); three counts
of sodomy in the first degree(KRS 510.070); two counts of rape in
the first degree (KRS 510.040); and for being a persistent felony
offender in the first degree (PFO I) (KRS 532.080).
He was
convicted of all counts in a jury trial held on August 20-22,
1996.
On September 5, 1996, the trial court sentenced Sholler to
prison for 20 years on each of the eight Class B felonies, with
the sentences enhanced to a sentence of life imprisonment for the
PFO conviction.
In a published opinion rendered on June 18,
1998, the Supreme Court of Kentucky affirmed Sholler’s
convictions.3
The Supreme Court summarized the facts of the case
as follows:
The two victims, D.B., a male, and K.B.,
a female, were employed at a tavern in
Covington, Kentucky. After closing the
tavern for the night on November 5, 1996,
they were accosted in the parking lot by a
man wearing a camouflage jacket over a
red-hooded sweatshirt and holding a "pointy"
object in his hand. The man informed them
that he had a .38 caliber gun and threatened
to shoot them if they did not give him their
money. The victims testified that they were
in fear for their lives and that they gave
him all of their money. In doing so, K.B.
dropped some of her money on the ground. The
man then ordered the victims to unlock the
tavern and accompany him inside. He again
threatened to kill them if they did not
comply. Once inside, the man demanded the
money from the cash register. The victims
showed him that the cash register was empty
2
Kentucky Revised Statutes.
3
See Sholler v. Commonwealth, Ky. 969 S.W.2d 706, 707-08
(1998).
-2-
and told him that the money was kept in a
safe, which was locked. The perpetrator
again threatened to kill them if they did not
get the money for him. K.B. suggested that
he could take the safe with him and leave in
her automobile. The victims then carried the
safe outside and placed it in the trunk of
K.B.'s automobile. To make room for the
safe, a bag of groceries was removed from the
trunk and placed on the ground. The
perpetrator was given the keys to the
automobile.
The victims were then ordered back into
the tavern and into a bathroom, where the
perpetrator ordered K.B. to disrobe. After
she complied, the perpetrator ordered her out
of the bathroom and onto a mat, where he
subjected her to two acts of forcible rape
and three acts of forcible sodomy.
Ultimately, he ejaculated on her face. He
then allowed her to obtain some paper towels,
which she used both to wipe her face and to
wipe the perpetrator. The perpetrator then
locked K.B. in the basement, told D.B. to
stay in the bathroom, and left the tavern.
D.B. testified that upon hearing the door
close, he came out of the bathroom and
observed through the back window that a
police cruiser was in the parking lot and
that a police officer was talking to the same
man who had just committed the criminal acts
against him and K.B.
Outside, Officer Wietholter of the
Covington Police Department had stopped
Appellant to investigate whether a red
sweatshirt he was wearing might be the same
one stolen from a car earlier that evening.
Appellant denied involvement in the break-in
of a car. However, Officer Wietholter
noticed that Appellant was fidgeting. He
also noticed some money laying on the ground
and a bag of groceries sitting behind the
vehicle adjacent to where Appellant was
standing. A pat-down search revealed
Appellant to be in possession of burglary
tools and the keys to K.B.'s automobile. He
was placed under arrest. Other officers
arrived on the scene and D.B. identified
Appellant to them as the perpetrator of the
robberies. K.B. was taken to St. Luke
Hospital where semen samples were removed
from her thigh and her eyebrow. At trial,
-3-
both victims identified Appellant as the
perpetrator of the criminal acts committed
against them.4
On March 29, 1999, Sholler filed a motion for postconviction relief pursuant to RCr 11.42.5
The motion asserted
various grounds for post-conviction relief.
On June 3, 1999,
Sholler filed a motion to supplement his March 29 motion, wherein
he included additional grounds for post-conviction relief.
On
June 29, 1999, the trial court, without conducting an evidentiary
hearing, denied Sholler’s RCr 11.42 motion.
This appeal
followed.6
Sholler contends that the trial court erred when it
denied his RCr 11.42 motion without the benefit of having
available for review the record of the trial proceedings.7
Specifically, Sholler contends that the Attorney General’s office
had possession of the circuit court record for preparation of a
response in the federal court proceedings, whereby the trial
court did not have the record available when it denied his RCr
11.42 motion.
4
Sholler, supra.
5
The record discloses that prior to filing his RCr 11.42
motion, Sholler filed a habeas corpus action in federal court.
6
During 2000, Sholler unsuccessfully sought relief through a
CR 60.02 motion. He has an appeal of the denial of that motion
pending in case number 2000-CA-000539-MR.
7
Because Sholler did not raise the issue with the trial
court, it is not properly preserved; however, in consideration
that Sholler is a pro se litigant, we will address the issue on
the merits. See Beecham v. Commonwealth, Ky., 657 S.W.2d 234, 236
(1983)(pro se pleadings are not required to meet the standard of
those applied to legal counsel).
-4-
The record before this Court discloses that on March
11, 1999, the Attorney General’s office filed a motion with the
circuit court requesting that it be sent the trial record so that
it could respond to Sholler’s federal habeas corpus filing; the
same day, the trial court entered an order granting the motion.
Sholler filed his RCr 11.42 motion on March 29, 1999.
On April
1, 1999, the trial court entered an order noting that the
complete court record in Sholler’s case had been forwarded to the
Attorney General’s office, whereby the trial court would be
unable at that time to meaningfully review Sholler’s RCr 11.42
motion. The trial court ordered that Sholler’s RCr 11.42 case be
held in abeyance pending the return of the record.
The trial
record does not disclose exactly when the trial record was
returned to the circuit court.8
The order entered by the trial court on April 1, 1999,
placed the case in abeyance pending the return of the record.
While Sholler offers speculation and conjecture concerning the
court record, we have been presented with no factual basis to
support his claim that the trial court violated its own order and
8
In its brief, the Commonwealth represents that the record
was returned on April 29, 1999, and, in support of its claim,
attaches as an appendix a certified mail receipt dated April 29,
1999, addressed to the Kenton Circuit Court. Because Sholler
never raised the issue with the trial court, the Commonwealth was
never given an opportunity to respond to the claim. Information
not included in the trial record should normally not be included
in a brief. Rankin v. Blue Grass Boys Ranch, Inc., Ky., 469
S.W.2d 767, 769 (1971). However, since we are considering this
issue as an accommodation to a pro se litigant, under these
circumstances we will not strike the Commonwealth’s attachment
regarding when it returned the record to the trial court.
-5-
ruled on the RCr 11.42 motion prior to the return of the record.
Thus, this claim is without merit.
Next, Sholler contends that, for various reasons, he
received ineffective assistance of counsel.
In order to
establish ineffective assistance of counsel, a person must
satisfy a two-part test showing (1) that counsel's performance
was deficient, and (2) that the deficiency resulted in actual
prejudice affecting the outcome of the case.9
Unless the movant
makes both showings, he cannot prevail in his attack.10
"The
burden of proof [is] upon the appellant to show that he was not
adequately represented by appointed counsel."11
A reviewing
court, in determining whether counsel was ineffective, must be
highly deferential in scrutinizing counsel's performance, and the
tendency and temptation to second guess should be avoided.12
We
must look to the particular facts of the case and determine
whether the acts or omissions were outside the wide range of
professionally competent assistance.13
In ascertaining whether
Sholler is entitled to an evidentiary hearing, "[o]ur review is
confined to whether the motion on its face states grounds that
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 724 (1986).
10
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
11
Jordan v. Commonwealth, Ky., 445 S.W.2d 878, 879 (1969).
12
Harper v. Commonwealth, Ky., 978 S.W.2d 311 (1998).
13
Id.
-6-
are not conclusively refuted by the record and which, if true,
would invalidate the conviction."14
First, Sholler contends that he received ineffective
assistance because, in the PFO phase of the trial, trial counsel
failed to challenge a prior felony conviction because the
defendant named in the indictment in the case was “Fredric
Sholler” as opposed to Ralph Sholler.
We disagree.
First, it appears that Sholler’s full name is Ralph
Frederick Sholler, Jr.15
Second, upon the introduction of the
“Fredric Sholler” indictment, trial counsel approached the bench
and, in light of the name discrepancy, questioned the use of
indictment.
Finally, the PFO count charged in the “Fredric
Sholler” indictment referenced prior felony convictions which
undisputedly applied to the defendant in this case, thereby
demonstrating that the “Fredric Sholler” indictment was properly
used in the PFO proceedings in the case sub judice.
In summary,
there was neither deficient performance nor prejudice in
conjunction with the “Fredric Sholler” indictment.
Next, Sholler contends that trial counsel was
ineffective in the sentencing phase of the trial when she argued
in favor of a life sentence for Sholler as opposed to a sentence
for a long term of years.
A review of trial counsel’s closing
arguments in the sentencing phase of the trial discloses that
14
Osborne v. Commonwealth, Ky.App., 992 S.W.2d 860, 864
(1998) (quoting Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322
(1967)).
15
While the caption of the indictment in this case is Ralph
F. Sholler, Jr., the initial uniform citation was in the name of
Ralph Frederick Sholler, Jr.
-7-
trial counsel did, in fact, urge the imposition of a life
sentence.
However, this was in light of Sholler’s conviction of
eight Class B felonies and the jury having found him guilty of
being a PFO I.
Under these circumstances, Sholler risked
receiving sentences on eight convictions carrying sentences of
20-years-to-life (See KRS 532.080(6)(a) and KRS 532.060(2)(a)),
which, if ran consecutively, may have resulted in, for example, a
160-year sentence (20 years on each count) or a 300-year sentence
(50 years on each count).
A life sentence cannot run consecutively with any
other sentence,16 and trial counsel’s strategy was clearly to
merge the sentences on all eight convictions into the equivalent
of a single life term.
Further, trial counsel’s strategy was
pursued with the knowledge that regardless of whether the
sentence was a lengthy term of years or a single life term,
Sholler would be eligible for parole in 12 years.17
Trial
counsel clearly employed a trial strategy that theorized that the
consequences would be better for Sholler, both in terms of
publicity and his future parole chances, if he received a single
life sentence as opposed to perhaps a multi-hundred-year
sentence.
Because of the difficulties inherent in making a fair
assessment of attorney performance, "a court must indulge a
strong presumption that counsel's conduct falls within the wide
16
Bedell v. Commonwealth, Ky., 870 S.W.2d 779, 783 (1993).
17
See Sanders v. Commonwealth, Ky., 844 S.W.2d 391, 393-94
(1992).
-8-
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound
trial strategy.’"18
We find counsel's performance on this issue
to fall within the realm of reasonable trial strategy.
Next, Sholler contends that trial counsel was
ineffective when she did not move for a directed verdict of
acquittal at the conclusion of the presentation of the
Commonwealth’s case.
Accepting, arguendo, that trial counsel’s
failure to move for a directed verdict of acquittal was deficient
representation, the record clearly establishes that Sholler was
not prejudiced as a result this failure.
Under Kentucky law, a
directed verdict of acquittal can only be granted where it would
be unreasonable for the jury to find the defendant guilty of the
charged offense.19
On a motion for a directed verdict of
acquittal, the trial court must draw all fair and reasonable
inferences in favor of the Commonwealth.
A defendant can be
granted a directed verdict of acquittal only where the
prosecution has produced nothing but a "mere scintilla" of
evidence of guilt.20
At trial, in the Commonwealth’s case-in-chief, the two
crime victims identified Sholler as the perpetrator.
Further,
Sholler was apprehended at the scene minutes after the completion
18
Strickland, 466 U .S. at 689, 104 S.Ct. at 2065;
Commonwealth v. Pelfrey, Ky., 998 S.W.2d 460, 463 (1999).
19
Yarnell v. Commonwealth, Ky., 833 S.W.2d 834, 836 (1992).
20
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 188 (1991).
-9-
of the crimes; one of the victims identified Sholler as the
perpetrator the night of the crimes; Sholler’s DNA matched the
DNA of the rapist; and Sholler had cash on his person consistent
with the cash taken from the victims in the robbery.
Various
other circumstantial evidence pointed toward Sholler as the
perpetrator.
In summary, under Kentucky law, Sholler was not
entitled to a directed verdict of acquittal at the close of the
Commonwealth’s case, and, it follows, there was no prejudice
associated with trial counsel’s failure to move for a directed
verdict of acquittal.
Finally, Sholler contends that trial counsel was
ineffective because she failed to request lesser-included offense
instructions to the rape and sodomy charges.
We adopt the trial
court’s examination of this issue:
An instruction on a lesser included offense
is appropriate if, on the given evidence, a
reasonable juror could realistically doubt
the defendant’s guilt on the greater charge,
but believe beyond a reasonable doubt that he
is guilty of the lesser offense. Luttrell v.
Commonwealth, Ky., 554 S.W.2d 75 (1977).
Where the evidence would support a finding
only to the effect that the Defendant’s act
was intercourse or sodomy or nothing, then an
instruction on sexual abuse should not be
included. See, Issacs v. Commonwealth, Ky.,
533 S.W.2d 843 (1977). There was no evidence
offered to support a finding that the victim
was subjected to sexual abuse and not rape
and sodomy, and therefore, the only option
the jury had was to find the Defendant guilty
of rape and sodomy in the first degree or
nothing at all. In such a situation, an
instruction on a lesser included offense is
not appropriate and it was not a violation of
the Defendant’s rights for defense counsel
not to ask and for the trial court not to
include such a[n] instruction.
-10-
For the foregoing reasons, the order of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ralph Sholler, Pro Se
West Liberty, KY
Albert B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, KY
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