ARTHUR REID v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 7, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001004-MR
ARTHUR REID
APPELLANT
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 98-CR-00047
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, BARBER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Arthur Reid has appealed from an order entered
by the Simpson Circuit Court on March 29, 2001, which denied him
relief on his pro se motion pursuant to RCr1 11.42.
Having
concluded that the trial court was correct in ruling that Reid’s
1
Kentucky Rules of Criminal Procedure.
claims of ineffective assistance of counsel were refuted by the
record and that he was not entitled to an evidentiary hearing, we
affirm.
On May 4, 1998, the Simpson County grand jury indicted
Reid on three counts of rape in the first degree2 and three
counts of incest.3
The indictment charged that Reid on three
occasions in 1997 had engaged in sexual intercourse by forcible
compulsion with his half-sister.
After initially pleading not
guilty, Reid subsequently elected to accept a plea agreement
offered by the Commonwealth.
On July 20, 1998, Reid entered a
plea of guilty to one count of an amended charge of rape in the
second degree,4 and Alford5 pleas to two additional amended
counts of rape in the second degree.
In return for the guilty
pleas, the Commonwealth recommended the dismissal of the three
counts of incest.
The trial court accepted Reid’s guilty pleas
and on September 28, 1998, sentenced him to ten years’
imprisonment on each of the three rape convictions, with the
sentences to run concurrently.
On May 23, 2000, Reid filed his pro se RCr 11.42
motion, alleging that he had been denied effective assistance of
counsel.
On March 29, 2001, the trial court, without conducting
an evidentiary hearing, denied Reid’s RCr 11.42 motion.
2
Kentucky Revised Statutes (KRS) 510.040.
3
KRS 530.020.
4
The
KRS 510.050.
5
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970).
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trial court entered a thorough order, some nine pages in length,
which found Reid’s claims of ineffective assistance of counsel to
be without merit.
This appeal followed.
Reid’s primary claim of error is that his trial counsel
failed to investigate a possible alibi defense, which in turn
left him with no choice but to plead guilty.
Specifically, he
argues:
It seems clear that if Reid could produce
time cards to prove he was elsewhere, had
counsel investigated, he would have found
witnesses--coworkers and supervisors, perhaps
customers--who would have been able to
testify that he was not in the state at the
time of the alleged offenses. As a result of
counsel’s failures, Reid had no recourse but
to plead guilty. He would not have pled
guilty but for counsel’s errors.
. . .
The trial court should have vacated Reid’s
plea, or in the alternative, held a hearing
to determine facts which are not refuted by
the record.
The standard for determining whether a defendant
received ineffective assistance of counsel with respect to a
guilty plea was discussed by this Court in Sparks v.
Commonwealth:6
A showing that counsel’s assistance was
ineffective in enabling a defendant to
intelligently weigh his legal alternatives in
deciding to plead guilty has two components:
(1) that counsel made errors so serious that
counsel’s performance fell outside the wide
range of professionally competent assistance;
and (2) that the deficient performance so
seriously affected the outcome of the plea
process that, but for the errors of counsel,
6
Ky. App., 721 S.W.2d 726, 727-28 (1986)(citing Hill v.
Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203
(1985)).
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there is a reasonable probability that the
defendant would not have pleaded guilty, but
would have insisted on going to trial.
The flaw in Reid’s argument becomes obvious upon an
examination of the Cracker Barrel restaurant’s time sheets, which
he has filed of record.
Reid relies upon these time sheets to
provide him with an alibi defense, but the time sheets are
completely void of any mention of the dates or times when Reid
was actually at work.
The time sheets do indicate that Reid was
employed at Cracker Barrel from at least December 12, 1997,
through at least January 15, 1998, but the time sheets show
little else.
Reid’s bare assertion that these time sheets could
have been used by his trial counsel to develop an alibi defense
is not sufficient to support his claim for an evidentiary
hearing.7
Further, the evidence against Reid was substantial, and
trial counsel’s advice to Reid to accept the plea agreement was
sound.
In Sparks,8 this Court stated:
[A]ppellant’s counsel advised him to plead
guilty on the basis of a reasoned evaluation
of the strength of the evidence..., the
likelihood of conviction and the probability
that Sparks could easily receive a sentence
in excess of the Commonwealth’s offer of 35
years should Sparks be convicted of both
murder and first-degree robbery. Counsel’s
advice was not unreasonable under the
circumstances, and was therefore not
constitutionally defective.
In the instant case, we agree with the trial court that
it was not unreasonable for Reid’s trial counsel to advise Reid
7
Brooks v. Commonwealth, Ky., 447 S.W.2d 614, 617 (1969).
8
Sparks, supra at 728.
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to plead guilty in light of both the evidence pointing towards
his guilt, and the punishment he faced if convicted.
On February
26, 1998, after Reid had been arrested and after he signed a
written statement advising him of his rights, he confessed in a
sworn, written statement to having had sexual intercourse with
his half-sister.
On May 18, 1998, an inmate, who was in jail
with Reid, wrote a sworn, written statement claiming that Reid
had admitted to him to having had sexual intercourse with his
half-sister.
If Reid had gone to trial and been convicted, he faced
a minimum sentence of 20 years’ imprisonment on each conviction
for rape in the first degree, and a minimum sentence of five
years’ imprisonment on each conviction for incest.
The plea
agreement resulted in a substantially lighter sentence than what
Reid faced if he had been convicted at trial.
Obviously, under
these circumstances, trial counsel’s advice to plead guilty did
not fall below the standards of a competent attorney.
Having
concluded that the first prong of the ineffective assistance of
counsel test has not been met, as Reid has failed to show that
his trial counsel’s representation fell below that of a competent
attorney, it is not necessary to discuss the second prong, i.e.,
whether Reid would not have pleaded guilty, but for the alleged
error.
This Court in Centers v. Commonwealth,9 discussed the
factors to consider in determining whether a guilty plea was
intelligently entered:
9
Ky. App., 799 S.W.2d 51, 54 (1990).
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In determining the validity of guilty pleas
in criminal cases, the plea must represent a
voluntary and intelligent choice among the
alternative course of action open to the
defendant. The United States Supreme Court
has held that both federal and state courts
must satisfy themselves that guilty pleas are
voluntarily and intelligently made by
competent defendants. Since pleading guilty
involves the waiver of several constitutional
rights, including the privilege against
compulsory self-incrimination, the right to
trial by jury, and the right to confront
one’s accusers, a waiver of these rights
cannot be presumed from a silent record. The
court must question the accused to determine
that he has a full understanding of what the
plea connotes and of its consequences, and
this determination should become part of the
record [citations omitted].
We have reviewed the videotape of Reid’s guilty pleas
in its entirety and the record clearly shows that Reid’s guilty
pleas were voluntarily and intelligently entered.
During the
colloquy between Reid and the trial court, the experienced and
learned trial judge thoroughly and patiently explained to Reid
all of his rights and carefully ensured that all of the
requirements set out by the United States Supreme Court in Boykin
v. Alabama,10 were met.
When Reid was asked if he understood
that he was waiving his right to a jury trial, the right to be
represented by counsel at a jury trial, the right not to testify
against himself, and the right to confront and cross-examine
witnesses against him, he clearly responded in the affirmative
each time.
When Reid was asked if he and his counsel had been
afforded enough time to go over all of the relevant evidence and
to discuss the elements of the offenses with which he was
charged, and whether he was satisfied with the advice that his
10
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
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counsel had given him, he again clearly responded in the
affirmative each time.
Accordingly, we find Reid’s claim that
his trial counsel improperly deprived him of a defense to the
charges against him to be unsupported by the facts in the record.
Furthermore, in establishing a factual basis for the
guilty pleas, Judge Harris carefully asked Reid if each of the
elements of the offense had been met.
Reid now claims there was
evidence available which would have allowed him to prove his
alibi defense that he was working at a Cracker Barrel restaurant
in the state of Tennessee at the time of the alleged rapes.
However, at the time of his guilty pleas, he freely admitted in
open court that he did in fact have sexual intercourse with his
half-sister on one occasion at a time when he was over the age of
eighteen, and she was under the age of fourteen.11
Further, in
support of the two Alford pleas, he agreed that, in light of the
evidence against him, it was in his best interest to accept the
Commonwealth’s offer on pleas of guilty.
Reid’s “solemn
declarations in open court carry a strong presumption of
verity.”12
The trial judge is to be commended for his
thoroughness in assuring that Reid’s constitutional rights were
protected and in developing a complete record to demonstrate that
those protections had been provided.
11
It is that record which
KRS 510.050 is defined as: "A person is guilty of rape in
the second degree when, being eighteen (18) years old or more, he
engages in sexual intercourse with another person less than
fourteen (14) years old."
12
Centers, supra at 54 (1990).
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clearly refutes Reid’s conclusionary allegations.
Accordingly,
an evidentiary hearing was not required.13
For the foregoing reasons, the order of the Simpson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
Albert B. Chandler, III
Attorney General
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
13
Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998).
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