PAUL BATES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 1, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002350-MR
PAUL BATES
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 95-CR-002546
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; SCHRODER, AND TACKETT, JUDGES.
SCHRODER, JUDGE:
Paul Bates appeals from an order of the
Jefferson Circuit Court denying his motion for relief pursuant to
RCr 11.42.
Having reviewed the record and the applicable law, we
affirm.
On the evening of October 3, 1995, appellant and Mark
Abell went to a Louisville nightclub where they met the victim.
After getting into a car with appellant and Abell, a knife was
pulled on the victim, and she was driven to a park.
At the park
the men engaged in a violent assault upon the victim, raping, and
sodomizing her, and attempting to drown her in a pond and
strangle her with a belt.
After appellant and Abell drove away,
the victim eventually crawled out of the park to the road, where
she was discovered early the next morning by a passing school-bus
driver.
In an indictment returned on October 9, 1995, appellant
and Abell were both charged with criminal attempt murder,
kidnaping, first-degree rape, first-degree sodomy, and firstdegree robbery.
On May 20, 1996, Abell pled guilty to criminal
attempt murder, first-degree rape, first-degree sodomy, and the
amended charges of first-degree unlawful imprisonment and theft
by unlawful taking over $300, and sentenced to 35 years’
imprisonment.
Appellant proceeded to trial, which commenced in March,
1997.
The evidence against appellant at trial was overwhelming.
The victim testified to the events in detail and positively
identified appellant as one of her attackers.
Additionally, the
Commonwealth played for the jury a tape recorded statement which
appellant had given to police shortly after the crimes, in which
appellant admitted to the crimes and gave a lengthy and detailed
account thereof.
The jury found appellant guilty of criminal
attempt murder, kidnaping, first-degree sodomy, facilitation to
first-degree rape, and first-degree robbery.
Final judgment was
entered on April 23, 1997, with appellant sentenced to a total of
43 years’ imprisonment.
Appellant’s conviction was affirmed by
the Kentucky Supreme Court in an unpublished opinion, 97-SC-377MR, rendered on March 19, 1998, and made final on April 9, 1998.
On March 19, 2000, appellant, pro se, filed a motion to
vacate sentence and conviction pursuant to RCr 11.42, on grounds
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that he received ineffective assistance of counsel.
The
Department of Public Advocacy was appointed to represent
appellant in the RCr 11.42 proceedings.
Appointed counsel moved
for an evidentiary hearing on the RCr 11.42 motion.
On
September 24, 2001, the trial court held a hearing for the
purpose of determining whether an evidentiary hearing was
necessary on the RCr 11.42 motion.
In an order entered on
October 5, 2001, the trial court stated that it had determined
that appellant was not entitled to an evidentiary hearing, and
denied appellant’s RCr 11.42 motion.
This appeal followed.
On appeal, appellant contends that he received
ineffective assistance of counsel, specifically in that counsel
1) failed to file a motion for a speedy trial, 2) failed to
subpoena and produce significant exculpatory witnesses at trial,
and 3) failed to present available mitigation evidence at the
penalty phase or final sentencing hearing.
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).
The burden is on the appellant to overcome the strong
presumption that trial counsel’s assistance was constitutionally
sufficient.
Jordan v. Commonwealth, Ky., 445 S.W.2d 878, 879
(1969); McKinney v. Commonwealth, Ky., 445 S.W.2d 874, 878
(1969).
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We first address appellant’s argument that counsel was
ineffective for failing to file a motion for a speedy trial.
Appellant was arrested in October, 1995, and the trial commenced
in March, 1997, a delay of approximately 17 months.
The record
reflects that the delay in bringing appellant to trial was due in
significant part to defense counsel’s efforts on appellant’s
behalf.
Additionally, at an October 25, 1996, hearing, the trial
court found that appellant had waived his right to a speedy
trial.
At this hearing, the Commonwealth explained that DNA
results would not be available by the trial date, which had been
set for November 12, 1996, but that the Commonwealth was willing
to proceed to trial without the results.
The Commonwealth noted,
and the court acknowledged, that it was appellant’s objections
which caused the delay in collecting a blood sample for the DNA
testing.
Appellant expressed to the court that he did not wish
to proceed to trial until DNA results were available and
acknowledged that he understood that he would continue to remain
in custody.1
The court therefore found that appellant had waived
his right to a speedy trial, and the trial date was agreed upon
for March 4, 1997.
Having reviewed the record, we conclude that
appellant has failed to overcome the presumption that counsel’s
actions “‘might be considered sound trial strategy.’"
Strickland
v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation
omitted).
We choose not to retry the case and second guess the
defense counsel as to what he should or should not have done at
1
See Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 70 (2000),
(“If a defendant acquiesces in a delay, he cannot be heard to
complain about the delay.”)
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the time.
(1968).
Dorton v. Commonwealth, Ky., 433 S.W.2d 117, 118
We further note that appellant has failed to demonstrate
that his defense was in any way prejudiced by the delay.
See
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972); Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 70 (2000).
“In
seeking post conviction relief, the movant must aver facts with
sufficient specificity to generate a basis for relief.”
Commonwealth, Ky., 465 S.W.2d 267, 268 (1971).
Lucas v.
Accordingly, we
reject appellant’s argument that counsel was ineffective for
failing to file a speedy trial motion.
Appellant next contends that counsel was ineffective
for failing to produce “exculpatory” trial witnesses who would
have corroborated his defense.
At trial, appellant testified
that he had consumed a large quantity of alcohol on the evening
of October 3, 1995, that he left the nightclub with Abell and the
victim, that Abell had pulled a knife on the victim, and that he
(appellant) drove the car to the park.
Contradicting the taped
statement he gave to police, appellant testified at trial that
when he got out of the car at the park, he slipped and fell and
could not remember anything else until he and Abell were driving
away from the park.
Contrary to the taped statement, at trial
appellant denied committing the crimes at issue.
Appellant contends that had counsel produced these
witnesses, they would have testified to the amount of alcohol
that appellant drank on the night of the offenses, that he
suffered alcohol induced blackouts, his habit of carrying a knife
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in his car, and circumstances surrounding the search of his
apartment.
We adjudge appellant’s argument to be completely
without merit.
We do not require counsel to fabricate a defense
where the facts present no defense.
We only require that defense
counsel provide a viable defense where the facts support such a
defense.
In this case, defense counsel gave the appellant an
opportunity to present his story, which conflicted with the
overwhelming evidence to the contrary.
The witnesses that
appellant wanted to present could not disprove the facts and
therefore it was not deficient of counsel not to call them.
Appellant further contends that counsel was ineffective
for failing to present available mitigation evidence at
appellant’s penalty phase and final sentencing hearing.
Appellant specifically contends that counsel failed to present
the testimony of witnesses who could have testified to his
schooling, employment history, and good behavior in church and
the community.
Appellant was tried in March, 1997, at which time
KRS 532.055(2)(b) provided:
The defendant may introduce evidence in
mitigation. For purposes of this section,
mitigating evidence means evidence that the
accused has no significant history of
criminal activity which may qualify him for
leniency. This section shall not preclude
the introduction of evidence which negates
any evidence introduced by the Commonwealth;
Therefore, per KRS 532.055(2)(b), defense counsel was precluded
from presenting the aforementioned witness testimony in the
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penalty phase.2
Further, such witness testimony was not proper
for the sentencing hearing as well.
See RCr 11.02; KRS 532.050.
Accordingly, we reject appellant’s argument, and conclude that
counsel’s performance was not deficient with regard to the
penalty phase and sentencing hearing.
With regard to appellant’s contention that he was
entitled to an evidentiary hearing, we conclude that the issues
raised by appellant are resolvable from the record, and therefore
no evidentiary hearing was required.
Skaggs v. Commonwealth,
Ky., 803 S.W.2d 573, 576 (1990), cert. denied, 502 U.S. 844, 112
S. Ct. 140, 116 L. Ed. 2d 106 (1991).
Finally, we address appellant’s argument that the trial
court erred in ruling that all of the issues raised by appellant
in his RCr 11.42 motion should have been raised on direct appeal,
and that the trial court utilized the wrong standard of review
when analyzing the effectiveness of appellant’s counsel.
In its
October 5, 2001, order denying appellant’s RCr 11.42 motion, the
trial court stated as follows:
This Court presided over the trial of
this indictment and has reviewed all of its
records. This Court finds that (1) the
evidence against both Defendants was
overwhelming; (2) Mr. Bates’s trial counsel
was more than reasonably competent; and (3)
all of the issues that Mr. Bates now raises
should have been raised in his direct appeal.
. . . .
2
The Commonwealth introduced no evidence at the penalty
phase other than a copy of the parole eligibility guidelines.
During the guilt phase of the trial, defense counsel had elicited
from appellant that he had no arrests other than one misdemeanor
conviction.
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Finally, the behavior of Mr. Bates’s
counsel must be measured against the standard
outlined in Wahl vs. Commonwealth [Ky., 396
S.W.2d 774 (1965)]. There, at Page 775, the
Court stated that:
Appellant also
contends that his courtappointed counsel did not
represent him adequately.
In order to vacate the
judgment because of poor
representation of
counsel, we must find
that the circumstances of
the representation were
such as to shock the
conscience of the court
and to render the
proceedings a farce and a
mockery of justice. Id.
We agree that ineffective assistance of counsel claims
are proper for an RCr 11.42 motion.
Although the trial court
stated that all of the issues should have been raised on direct
appeal, the order indicates that it did, nevertheless, consider
appellant’s ineffective assistance of counsel claims, albeit
under the incorrect standard.
We note that Wahl was in fact
overruled by Henderson v. Commonwealth, Ky., 636 S.W.2d 648
(1982), which replaced the “shock the conscience” and ”farce and
mockery of justice” test with the “reasonably effective
assistance” standard for analyzing issues of ineffective
assistance of counsel.
However, “we are bound to affirm the decision of the
trial court under the rule that a correct decision shall be
upheld notwithstanding it is reached by an improper route or
reasoning.”
White v. Board of Education of Somerset Independent
School District, Ky. App., 697 S.W.2d 161, 162 (1985).
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See also
Jarvis v. Commonwealth, Ky., 960 S.W.2d 466, 469 (1998) (“We have
long held that we will uphold a correct result made for the wrong
reasons.”)
We have considered all of appellant’s arguments under
the proper standard for determining ineffective assistance of
counsel as set forth in Strickland, and have concluded that
appellant received effective assistance of counsel.
Commonwealth, Ky., 702 S.W.2d 37, 39 (1985).
See Gall v.
Accordingly, we
conclude that the trial court reached the correct result in
denying appellant’s RCr 11.42 motion, and therefore affirm its
decision.
For the aforementioned reasons, the order of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
ATTORNEY FOR APPELLEE:
Edward L. Gafford
LaGrange, Kentucky
Albert B. Chandler, III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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