SHAFI ULLAH KHAN v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 9, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-000989-MR
SHAFI ULLAH KHAN
APPELLANT
APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE DORTCH, JUDGE
ACTION NO. 96-CR-00047
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND McANULTY, JUDGES.
McANULTY, JUDGE:
Shafi Ullah Khan appeals the Butler Circuit
Court’s denial of his motion to vacate the judgment under RCr1
11.42.
We affirm.
In October of 1995, the Daviess County Grand Jury
returned an indictment against Appellant charging him with
murder and two counts of sodomy in the first degree in the death
of four-year old Phillip Strain.
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Kentucky Rules of Criminal Procedure.
In April of 1996, the Daviess
County Grand Jury returned an additional indictment of rape in
the first degree of Phillip Strain, and the trial court ordered
that this indictment be consolidated with the original
indictment.
On June 24, 1996, the defense made a motion to
dismiss one count of sodomy in the first degree, which the trial
court granted on July 10, 1996.
In February, 1997, the trial
court dismissed the second count of sodomy in the first degree,
leaving Appellant charged with murder and rape in the first
degree.
On April 16, 1996, the Commonwealth filed a “Notice of
Intent to Present Evidence of Aggravating Circumstances”
grounded on the nature of Phillip Strain’s injuries.
In July, 1996, the trial court transferred venue from
Daviess County to Butler County due to pretrial publicity.
On
November 25, 1998, the Commonwealth tendered a plea bargain
offer calling for Appellant to plead guilty to murder with an
aggravating circumstance and rape in the first degree, which
constituted the aggravator.
Under the offer, the sentence was
life imprisonment without possibility of parole for 25 years on
the murder conviction and life imprisonment on the rape
conviction, the sentences to run concurrently.
Appellant took
the offer and entered a guilty plea later that day.
The trial
court sentenced Appellant in accordance with the plea agreement
on January 4, 1999.
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On March 19, 2001, Appellant filed a pro se request
for RCr 11.42 relief.
Appellant’s motion.
On April 18, 2001, the trial court denied
This appeal followed.
Appellant presents three claims for our review.
First, Appellant claims the trial court erred in denying his RCr
11.42 motion when his counsel provided ineffective assistance.
Second, Appellant claims the trial court erred in denying his
request for an evidentiary hearing to establish proof of his
claims.
Third, Appellant claims the trial court erred in
denying Appellant’s motion for appointment of counsel to assist
him in preparing and supplementing his RCr 11.42 motion.
Appellant alleges that he was denied constitutionally
effective assistance of counsel.
The test for proving
ineffective assistance of counsel is set out in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
The Strickland test requires Appellant to show trial
counsel’s performance was deficient, and this deficient
performance prejudiced his defense.
Strickland, 466 U.S. at
687, accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985).
The two-prong Strickland test also applies to
challenges to guilty pleas based on ineffective assistance of
counsel.
See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366 , 88
L. Ed. 2d 203, 210 (1985).
Appellant must show the attorney’s
performance was deficient and the attorney’s ineffective
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performance affected the outcome of the plea process.
See id.
“In other words, in order to satisfy the ‘prejudice’
requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Id;
Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726, 728 (1986).
Appellant supports his claim for ineffective
assistance of counsel with two assertions: (1) that his trial
counsel failed to advise Appellant that the evidence against him
was insufficient to support the rape conviction, which was the
sole aggravating factor for capital murder, and (2) that his
trial counsel failed to advise Appellant as to whether there was
sufficient evidence to establish that Appellant committed murder
in the course of committing rape.
Specifically, as to the first assertion, Appellant
argues that he could not be convicted of rape because rape in
the first degree is defined in KRS 510.040(1)(b)(2) as engaging
in sexual intercourse with another person who is incapable of
consent because he is less than twelve years old.
Further,
“‘[s]exual intercourse’ means sexual intercourse in its ordinary
sense and includes penetration of the sex organs of one person
by a foreign object manipulated by another person.”
510.010(8).
KRS
Moreover, in 2000, the legislature removed language
from the definition of “sexual intercourse” that stated sexual
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intercourse included penetration of the anus of one person by a
foreign object manipulated by another person.
(1992) (amended 2000).
KRS 510.010(8)
Thus, because there was only evidence of
anal penetration by a foreign object, Appellant could not be
guilty of rape first degree.
According to Appellant, since rape
first degree was the only aggravating circumstance that could
trigger the imposition of the harshest penalties for a murder
conviction, there also was insufficient evidence for Appellant’s
conviction for capital murder and the attendant sentence of life
without parole for 25 years.
The fatal flaw in Appellant’s argument to support his
ineffective assistance claim is the rule that a defendant should
be tried under the law that is in force at the time of the
commission of the crime.
See Albritten v. Commonwealth, 172 Ky.
274, 189 S.W. 204 (1916).
In this case, the statutory scheme in
effect during the commission of the crimes against Phillip
Strain in 1995 defined “sexual intercourse” as “sexual
intercourse in its ordinary sense and includes penetration of
the sex organs or anus of one person by a foreign object
manipulated by another person.”
KRS 510.010(8).
In fact, this
definition of “sexual intercourse” remained the law until July
14, 2000, when the amendment removing any reference to “anus”
went into effect.
That is one and a half years after Appellant
pleaded guilty to capital murder and rape in the first degree.
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“A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.”
Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
The law in
effect at all times during the proceedings against Appellant
defined rape to include anal penetration.
We believe that
Appellant’s trial counsel did not provide ineffective assistance
in evaluating the evidence against Appellant and advising him to
accept the Commonwealth’s plea bargain offer when that evidence
showed that a foreign object had been inserted in the anus of
four-year old Phillip Strain.
On the issue of Appellant’s second assertion that his
trial counsel failed to advise Appellant as to whether there was
sufficient evidence to establish that Appellant committed murder
in the course of committing rape, we believe there was
sufficient evidence to establish that Appellant raped Phillip
Strain.
Moreover, Appellant entered a guilty plea to the
charges of capital murder and rape in the first degree.
In
doing so, Appellant waived all defenses except that the
See Hendrickson v. Commonwealth,
indictment charged no offense.
Ky., 450 S.W.2d 234, 235 (1970).
The videotaped proceedings in
the Butler Circuit Court of the taking of Appellant’s plea are
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not part of the record, so we must assume that the omitted
record supports the trial court’s decision that Appellant’s plea
was made willingly, freely, voluntarily and intelligently.
See
Commonwealth v. Thompson, Ky., 697 S.W.2d 143, 145 (1985) (“It
has long been held that, when the complete record is not before
the appellate court, that court must assume that the omitted
record supports the decision of the trial court.”)
Finally, we
note that Appellant was facing the death penalty; however, his
counsel secured a lesser sentence.
Advising a client to plead
guilty in order to obtain a lesser sentence after investigating
his case is not ineffective representation.
See Commonwealth v.
Campbell, Ky., 415 S.W.2d 614, 616 (1967).
Because we find that Appellant failed to meet the
first prong of the Strickland test, there is no need to analyze
whether he met the second prong.
Appellant’s second argument on appeal is that the
trial court erred in denying his request for an evidentiary
hearing to establish proof of his claims.
An evidentiary
hearing is required if there is a “material issue of fact that
cannot be conclusively resolved, i.e., conclusively proved or
disproved, by an examination of the record.”
Commonwealth, Ky., 59 S.W.3d 448, 452 (2001).
Fraser v.
In support of
Appellant’s claim, Appellant argues that he was entitled to an
evidentiary hearing because he raised issues regarding the
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effectiveness of his counsel.
However, as discussed above, our
examination of the record establishes that Appellant received
effective assistance of counsel.
As Appellant offers no other
issues of fact in support of his claim, we affirm the trial
court’s denial of Appellant’s request for an evidentiary
hearing.
Appellant’s final argument is the trial court erred in
denying Appellant’s motion for appointment of counsel to assist
him in preparing and supplementing his RCr 11.42 motion.
Under
RCr 11.42, “[i]f an evidentiary hearing is not required, counsel
need not be appointed.”
Fraser, 59 S.W.3d at 453 (discussing
the requirements of RCr 11.42 and setting out the procedural
steps with respect to an evidentiary hearing and the appointment
of counsel).
In other words, counsel need not be appointed if
the allegations can be conclusively resolved by an examination
of the record.
See id.; Hemphill v. Commonwealth, Ky., 448
S.W.2d 60, 63 (1969).
Because we concluded above that an
evidentiary hearing was not required, the trial court did not
err in denying Appellant’s motion for appointment of counsel to
assist him in preparing and supplementing his RCr 11.42 motion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joanne Lynch
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Louisville, Kentucky
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