KERRY L. WALKER v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002813-MR
KERRY L. WALKER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 98-CR-003144
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE: Kerry L. Walker, pro se, has appealed from an
order entered by the Jefferson Circuit Court on October 28, 1999,
which denied his RCr1 11.42 motion to vacate, set aside or
correct his sentence.
Having concluded that Walker’s guilty plea
was entered knowingly, intelligently, and voluntarily; that the
elements of burglary in the second degree2 were sufficiently
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Revised Statutes (KRS) 511.030.
established to support his guilty plea; and that Walker did not
receive ineffective assistance of counsel, we affirm.
On September 28, 1998, Jackie Halsel requested and
received a Domestic Violence Order (DVO) against Walker.
Halsel
and Walker were sharing a residence and were romantically
involved.
Walker was ordered to have a third party remove his
personal items from the residence, to have no contact with Halsel
and to stay away from the residence.
On October 3, 1998, Walker
violated the DVO by going to the apartment while Halsel was not
home, waiting for her to return, and then forcing her to remain
in the apartment with him against her will.
Walker allegedly
took from Halsel a Lorrin 9mm handgun which Halsel had purchased
for her protection.
On October 4, 1998, Walker was arrested and charged
with burglary in the first degree,3 unlawful imprisonment in the
second degree,4 terroristic threatening,5 assault in the fourth
degree,6 harassing communications7 and violation of a protective
order8.
Between October 5, 1998, and December 2, 1998, Walker
stalked and harassed Halsel.
On December 16, 1998, Walker was
indicted by a Jefferson County grand jury under indictment number
3
KRS 511.020.
4
KRS 509.030.
5
KRS 508.080.
6
KRS 508.030.
7
KRS 525.080.
8
KRS 403.763.
-2-
98-CR-3144-2 for burglary in the first degree, unlawful
imprisonment in the second degree, terroristic threatening,
harassing communications, two counts of violation of a protective
order and for stalking in the first degree.9
While it is unclear
from the record, apparently Walker was indicted by the Jefferson
County grand jury under a separate indictment (98-CR-3150) for
possession of a handgun by a convicted felon.10
On February 12, 1999, Walker signed the “Commonwealth’s
Offer on a Plea of Guilty” and the “Motion to Enter Guilty Plea.”
At a hearing held on February 12, 1999, the trial court accepted
Walker’s plea of guilty to the amended charge of burglary in the
second degree; possession of a handgun by a convicted felon;
stalking in the first degree; harassing communications; unlawful
imprisonment; two violations of an Emergency Protective Order
(EPO); and terroristic threatening.
was held on April 1, 1999.
A final sentencing hearing
Walker moved the trial court for
probation; and pursuant to the plea agreement, the Commonwealth
took no position on probation.
On April 2, 1999, the trial court
entered the judgment of conviction sentencing Walker consistent
with the plea agreement to prison for a total term of seven
years.11
9
KRS 508.140.
10
KRS 527.040.
11
Walker’s seven-year sentence included seven years for
burglary in the second degree, five years for stalking in the
first degree, 90 days for terroristic threatening, 12 months for
harassing communications, 12 months for two counts of EPO
(continued...)
-3-
On October 18, 1999, Walker filed a motion to vacate,
set aside or correct his sentence pursuant to RCr 11.42.
Walker
raised three issues in his motion: (1) whether his guilty plea
was entered knowingly, intelligently and voluntarily; (2) whether
the evidence supported the elements of burglary in the second
degree; and (3) whether he received ineffective assistance of
counsel.
The Commonwealth filed a response to this motion on
October 19, 1999.
Without holding an evidentiary hearing, the
trial court entered an order on October 28, 1999, denying
Walker’s RCr 11.42 motion.
This appeal followed.
In general, the Sixth and Fourteenth Amendments to the
United States Constitution mandate that a defendant in a criminal
case receive effective assistance of counsel.12
To prove
counsel’s ineffectiveness, a movant must show (1) that counsel
made errors so serious that counsel’s performance fell outside
the wide range of professionally competent assistance as counsel
was not performing as guaranteed by the Sixth Amendment, and (2)
that the deficient performance prejudiced the defense so
seriously that it affected the process whereby the end result
would have been different.13
For a motion alleging ineffective
(...continued)
violation, five years for possession of a handgun by a convicted
felon, with all sentences running concurrently with each other.
12
United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37
L.Ed.2d 619 (1973); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55,
77 L.Ed. 158 (1932); Hopewell v. Commonwealth, Ky.App., 687
S.W.2d 153, 154 (1985).
13
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
(continued...)
-4-
assistance of counsel to state sufficient grounds for relief
under RCr 11.42, the motion must allege sufficient facts to show
that counsel’s representation was inadequate.14
If the record
refutes the claims of error, there is no basis for granting an
evidentiary hearing on an RCr 11.42 motion.15
An evidentiary
hearing is not required in a RCr 11.42 case where the issues
presented can be fairly determined on the face of the record.16
A guilty plea must represent a voluntary and
intelligent choice among the alternative courses of action open
to a defendant.17
The trial court must determine that a
defendant’s guilty plea is intelligent and voluntary, and this
determination must be put in the record.18
The validity of a
guilty plea must be determined from considering the totality of
(...continued)
L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366,
88 L.Ed.2d 203 (1985); Taylor v. Commonwealth, Ky.App., 724
S.W.2d 223, 226 (1986); Brewster v. Commonwealth, Ky.App., 723
S.W.2d 863, 864 (1986).
14
Thomas v. Commonwealth, Ky., 459 S.W.2d 72 (1970); Evans
v. Commonwealth, Ky., 453 S.W.2d 601 (1970); McCarthy v.
Commonwealth, Ky., 432 S.W.2d 50 (1968).
15
Glass v. Commonwealth, Ky., 474 S.W.2d 400. 401 (1971).
16
Newsome v. Commonwealth, Ky., 456 S.W.2d 686, 687 (1970).
17
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970); Centers v. Commonwealth, Ky.App., 799 S.W.2d
51, 54 (1990); Sparks v. Commonwealth, Ky.App., 721 S.W.2d 726
(1986).
18
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 1712, 23
L.Ed.2d 274 (1969); Centers, supra; Sparks, supra at 727.
-5-
circumstances surrounding it.19
These circumstances include the
accused’s demeanor, background and experience, and whether the
record reveals that the plea was voluntarily made.20
The trial
court is in the best position to determine if there was any
reluctance, misunderstanding, involuntariness, or incompetence by
the defendant in pleading guilty.21
After a thorough review of the record, we hold that
Walker’s claim that his guilty plea was not entered knowingly,
intelligently, and voluntarily is without merit.
The record
reveals that the trial court conducted the necessary colloquy
with Walker in order to ascertain whether he was fully informed
and whether his plea was voluntary.
Walker was informed of his
constitutional rights and of the constitutional rights he would
be waiving by entering the guilty plea.
The trial court
discussed the elements of the crimes and asked the Commonwealth
to outline what proof it was prepared to present at trial.
Thus,
the trial court fulfilled its duty to ascertain whether Walker
was entering his guilty pleas knowingly, intelligently and
voluntarily.
Walker’s claim that the trial court erred by accepting
his guilty plea to burglary in the second degree because it
19
Commonwealth v. Crawford, Ky., 789 S.W.2d 779, 780 (1990);
Centers, supra; Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447
(1978).
20
Centers, supra; Sparks, supra; Littlefield v.
Commonwealth, Ky. App., 554 S.W.2d 872 (1977).
21
Centers, supra (citing Blackledge v. Allison, 431 U.S. 63,
97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)).
-6-
lacked “jurisdiction” due to the insufficiency of evidence is
also without merit.
For this contention, Walker relies upon
Hedges v. Commonwealth,22 where our Supreme Court held:
“[v]iolation of a DVO, without other evidence sufficient to show
intent to commit a crime, may not be used to satisfy the elements
of burglary.
If it were otherwise, every indoor crime (or
intended crime) would constitute burglary.”23
The Court further
stated:
As 12A C.J.S. Burglary § 41 (1980) states:
To constitute burglary the
requisite specific intent must
exist at the time of the breaking
and entry, or entry, or remaining.
. . .
The mere violation of the DVO without
intent to commit an independent crime, is
impermissible to support a finding of
burglary. Justice Leibson appropriately
affirmed this idea in his dissenting opinion
in McCarthy[v. Commonwealth, Ky., 867 S.W.2d
469 (1993)]:
For the “intent” element of
the burglary statute to have been
satisfied in this case, “with the
intent to commit any crime” must be
understood to refer to intent to
commit a crime in addition to
criminal trespass. Criminal
trespass is committed by “knowingly
entering and remaining unlawfully
in a building,” the first element
in the burglary statute. Since
anytime someone “knowingly enters
or remains unlawfully in a
dwelling” that person would
necessarily have the intent to
22
Ky., 937 S.W.2d 703 (1996).
23
Id. at 706.
-7-
commit the crime of coming onto the
property, the Majority Opinion has
effectively written the intent
requirement out of the burglary
statute. . . .24
The case sub judice is distinguishable from Hedges on
several grounds.
First, in Hedges, the DVO, which had been
obtained by Hedges’ estranged wife, did not contain a “no
contact” provision.
In fact, Hedges had been allowed to have
contact with his wife regarding their child and with her
permission had spent the night at her residence on several
occasions.
In the present case, Walker was ordered not to have
any contact with Halsel or to go to his former residence.
Second, in Hedges, the underlying crime the Commonwealth relied
upon in support of the burglary charge was a violation of the
DVO.
The Supreme Court held that “[v]iolation of a DVO, without
other evidence sufficient to show intent to commit a crime, may
not be used to satisfy the elements of burglary.”25
In the present case, the Commonwealth claimed the
evidence would have shown that Walker held Halsel against her
will at gunpoint.
Thus, there was clearly sufficient evidence to
support a finding that Walker was guilty of unlawful
imprisonment.
Whether Walker entered the dwelling with the
intent to commit the crime of unlawful imprisonment would have
been a question of fact for the jury.
24
Id. at 705-06.
25
Id. at 706.
-8-
Accordingly, the trial
court did not err by finding that there was a factual basis to
support burglary in the second degree.
Walker’s claim of ineffective assistance of counsel is
also without merit.
For this argument, Walker makes no specific
allegation against his counsel, but instead simply recites the
general law on this issue and claims that his counsel was
ineffective because his attorney advised him to plead guilty to
the burglary and stalking charges without sufficient evidence to
support a conviction.
As stated previously, we believe the
evidence would support such a conviction.
In order to support a claim of ineffective assistance
of counsel, Walker needed to show (1) that his counsel made
errors so serious that counsel’s performance fell outside the
wide range of professionally competent assistance as counsel was
not performing as guaranteed by the Sixth Amendment, and (2) that
the deficient performance prejudiced the defense so seriously
that it affected the process whereby the end result would have
been different.26
Walker is unable to show either.
First, Walker has not alleged nor is there anything in
the record to indicate that his attorney made such serious
errors.
Second, since there was sufficient proof to support the
burglary conviction, Walker is also unable to satisfy the second
prong of the Strickland test.
During the colloquy between the
trial court and Walker, the trial court indicated that Walker was
well represented and that he was receiving a fair sentence in
26
Strickland, supra.
-9-
light of the seriousness of the charged offenses.
It is note-
worthy that based on Walker’s alleged possession of a deadly
weapon, he was originally charged with burglary in the first
degree.
If Walker had been convicted of an offense involving the
use of a weapon, he would not have been eligible for probation.27
Thus, by getting the charge of burglary in the first degree
reduced to burglary in the second degree, Walker not only got the
possible maximum sentence for this charge reduced from 20 years
to 10 years, but he was also eligible for probation.
Walker has
failed to show that he received ineffective assistance of
counsel.
For these reasons, this order of the Jefferson Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kerry L. Walker, Pro Se
LaGrange, KY
A.B. Chandler, III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, KY
27
KRS 533.060(1).
-10-
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.