DONALD CROWE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 5, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001856-MR
DONALD CROWE
v.
APPELLANT
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE JULIA HYLTON ADAMS, JUDGE
ACTION NO. 97-CR-00024
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS AND McANULTY, JUDGES; MILLER, SENIOR JUDGE.1
McANULTY, JUDGE:
Donald Crowe (Crowe), who ultimately pleaded
guilty to two counts of first degree trafficking in a controlled
substance and one count of being a persistent felony offender in
the first degree, appeals from the trial court’s dismissal of
his motion made under RCr 11.42 to vacate his judgment and
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
sentence on the basis of ineffective assistance of counsel.
On
appeal, Crowe argues that his trial counsel was ineffective in
failing to move to disqualify Crowe’s former counsel from
representation of Crowe’s co-defendant.
Because we conclude
that Crowe has failed to demonstrate that the representation by
his former attorney was personal and substantial, resulting in
the communication of privileged information, we affirm the trial
court’s dismissal and further deny Crowe’s alternative request
for an evidentiary hearing.
On January 22, 1997, Appellant and his co-defendant
Carla Hopper were seated on their living room couch watching
television when police officers forcibly entered the home to
execute a search warrant.
damaging evidence.
During the search, the police found
Consequently, the Clark County grand jury
indicted both Crowe and Hopper on May 30, 1997.
Crowe’s indictment consisted of the following charges:
Counts I-III, Trafficking in a Controlled Substance in the First
Degree; Counts IV-V, Possession of a Controlled Substance in the
First Degree; Count VI, Possession of a Firearm by a Convicted
Felon; and Count VII, Persistent Felony Offender in the First
Degree.
During a June 19, 1997 Pre-Trial Conference, the court
granted Appellant’s motion to sever Count VI as well as the
Commonwealth’s motion to amend Count III to include “in the
course of committing this offense the defendant possessed a
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firearm”.
However, on June 23, 1997, as a result of a plea-
bargain agreement, the Commonwealth deleted the amended language
of Count III, and Appellant pleaded guilty to Counts I, III, and
VII.
During the court’s 37-minute plea colloquy with Crowe,
Crowe acknowledged he had reviewed the evidence in the case, was
present in the Pre-Trial Conference and had the opportunity to
hear the discussions related to the evidence.
Crowe also
acknowledged that he had fully discussed the indictment and
facts alleged by the Commonwealth with his attorney; he
understood his rights; he was not coerced to enter his plea; and
the entry of the guilty plea was in his best interest.
Crowe
met with his attorney the night before, and the court granted
Crowe the opportunity to confer with his attorney that morning.
When asked if he had any questions for the court, Crowe
responded, “There was, but I forgot them.”
Moreover, Crowe
acknowledged that counsel had done all he could do to represent
him.
Crowe did not offer a defense for the specific counts.
On
July 10, 1997, the court sentenced Crowe to two twenty-year
concurrent sentences.
Had Crowe proceeded with trial, he faced
a minimum sentence of twenty years and a maximum sentence of
life imprisonment.
Initially, Jennifer Hall represented both Crowe and
Hopper during a preliminary hearing.
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However, due to conflict,
the court appointed Clay Bedford to represent Hopper.
However,
since Bedford was already representing Crowe in an action in
Powell County, Bedford suggested that Hall resume representation
of Hopper, and Bedford would instead represent Crowe in the
Clark County action as well.
Hall agreed.
Crowe did not appeal his conviction.
However, on
April 18, 1998, Crowe, pro se, filed a RCr 11.42 motion to
vacate judgment and sentence.
The court appointed counsel and
permitted Crowe leave to supplement the motion.
Crowe alleged
he was denied effective assistance of counsel through:
1.
Counsel’s deficiency in failing to challenge
effectively the search and seizure in Crowe’s
residence;
2.
Counsel’s ineffectiveness as to the amendment of
the charge;
3.
Counsel’s deficiency as to the guilty plea;
4.
Counsel’s duty to investigate; and
5.
Cumulative Error
On December 11, 2000, the court granted an evidentiary
hearing regarding the inadequacy alleged by counsel’s failure to
challenge the execution of the search warrant and, after setting
forth its reasoning in a 12-page order, denied relief for
Crowe’s remaining claims.
On July 23, 2001, after conducting an
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evidentiary hearing on the search warrant issue, the court
denied Crowe’s claim in its entirety.
This appeal followed.
Crowe raises two issues on appeal.
First, Crowe
argues that his trial counsel was manifestly ineffective in
failing to move to disqualify Crowe’s former counsel from
representing Crowe’s co-defendant, thus requiring a reversal of
Crowe’s conviction.
Second, Crowe argues that the record does
not refute his claim that his plea was involuntary because of
counsel’s incorrect advice; thus his conviction and sentence
should be vacated and remanded for an evidentiary hearing.
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
Crowe 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).
Crowe must show the attorney’s
performance was deficient, and the attorney’s ineffective
performance affected the outcome of the plea process.
“In other words, in order to satisfy the ‘prejudice’
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See id.
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.
at 59; Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726, 728
(1986).
Generally, the burden of proving a Sixth Amendment
violation rests on the accused, but some circumstances are “so
likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.”
United
States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80
L. Ed. 2d 657 (1984).
In this case, Crowe alleges that trial
counsel was manifestly ineffective in failing to move to
disqualify Crowe’s former counsel from representation of his codefendant.
In support, Crowe cites SCR 3.130(1.9), which
states:
A lawyer who has formerly represented a client in
a matter shall not thereafter:
(a) Represent another person in the same or a
substantially related matter in which that
person’s interests are materially adverse to the
interests of the former client unless the former
client consents after consultation[.]
In further support, Crowe asserts that the Sixth Amendment
“requires a careful inquiry by the trial court” and
disqualification of a former attorney if his/her participation
was “personal and substantial resulting in the communication of
privileged information[.]”
Whitaker v. Commonwealth, Ky., 895
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S.W.2d 953, 955-57 (1995).
at 956.
No prejudice need be shown.
See id.
Instead, the focus of a reviewing court “is on the
degree of the relationship established between attorney and
client during the course of the representation.”
Id.
Crowe alleges that Hall’s prior representation of him
during a preliminary hearing was substantial and personal
participation in his case and that her later representation of
his co-defendant was prejudicial to his interests; and
therefore, Bedford’s failure to move for her disqualification
constituted ineffective assistance of counsel.
Despite Crowe’s
argument, we do not believe that Hall’s continued representation
of Crowe’s co-defendant after the preliminary hearing was a
violation of SCR 3.130.
Hall never took part in any action
against Crowe since plea agreement rather than trial resolved
Crowe’s case.
Had the case gone to trial, Crowe’s claim may
have had merit.
Moreover, Whitaker, a direct appeal case, does not say
that some prior representation warrants automatic
disqualification of former counsel.
The court instead remanded
the issue for an evidentiary hearing to determine the depth to
which the attorney/client relationship was established.
Further
action is warranted only in instances where the relationship was
found to have been substantial.
See Whitaker, 895 S.W.2d at
956.
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The purpose of RCr 11.42 “is to provide a forum for
known grievances, not to provide an opportunity to research for
grievances.”
(1983).
Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858
In order to prevail, “the movant must aver facts with
sufficient specificity to generate a basis for relief.”
Lucas
v. Commonwealth, Ky., 465 S.W.2d 267, 268 (1971).
Crowe has made a specific complaint in his allegation
that counsel was ineffective in failing to move to disqualify
his co–defendant’s counsel.
However, the basis of his claim is
that she knew “important issues” from the preliminary hearing
that she later used against him.
We believe that this statement
is simply too vague to provide a basis for relief.
Since Hall did not participate in any action against
Crowe and Crowe’s motion is non-specific as to Hall’s personal
and substantial involvement, Crowe has failed to demonstrate a
conflict, and no further action is necessary.
As a result,
Crowe has failed to establish the first prong of the Strickland
test, that his counsel’s assistance was deficient.
Crowe’s second argument is that he did not enter his
guilty plea voluntarily because he was not aware of its
seriousness and finality.
Moreover, the record cannot refute
the voluntariness of his plea; therefore an evidentiary hearing
on the issue is required.
In support of this argument, Crowe
asserts that his trial counsel led him to believe that entering
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a guilty plea at the time was not permanent.
In addition,
Crowe’s trial counsel convinced Crowe that he would have grounds
to set aside his guilty plea in the near future, apparently by
filing an RCr 11.42 motion.
Moreover, Crowe alleges that had
his trial counsel not misled him in this way, he would not have
entered a guilty plea and would have proceeded to trial.
“Where, as here, a defendant is represented by counsel
during the plea process and enters his plea upon the advice of
counsel, the voluntariness of the plea depends on whether
counsel’s advice was within the range of competence demanded of
attorney’s in criminal cases.”
Hill v. Lockhart, 474 U.S. at
56, 106 S. Ct. at 369 (internal citation and quotation marks
omitted).
Moreover, “an attorney may, after making an adequate
investigation, in good faith and in the exercise of reasonable
judgment, advise his client to plead guilty.”
Commonwealth, Ky., 456 S.W.2d 693, 694 (1970).
Quarles v.
In this case,
had Crowe gone to trial, he potentially could have received a
life sentence.
Instead, as a result of the plea agreement,
Crowe received a twenty-year sentence.
“The validity of a guilty plea depends ‘upon the
particular facts and circumstances . . . including the
background, experience and conduct of the accused.’
In other
words, the validity of a guilty plea is determined not by
reference to some magic incantation recited at the time it is
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taken but from the totality of the circumstances surrounding
it.”
Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978)
(internal citations omitted).
On June 23, 1997, Crowe pleaded guilty to Counts I,
III, and VII in a 37-minute colloquy.
Crowe appeared before the
court having already been convicted of seven felonies.
As the
trial court pointed out in its order which denied Crowe postconviction relief on certain grounds, Crowe even corrected the
court on the date and locations of his felony record as set
forth in the persistent felony offender count of the indictment.
During the colloquy, Crowe acknowledged that his trial counsel
had done all he could do to represent him including providing an
explanation of his rights as well as the charges and evidence
against him.
He further acknowledged that he was not coerced to
enter his plea, and the entry of the guilty plea was in his best
interest.
Considering the totality of the circumstances and
Crowe’s background, experience and conduct, we hold that his
guilty plea was made in a knowing and intelligent manner.
Appellant believes that he is entitled to an
evidentiary hearing on the issues that he has raised, namely
ineffective assistance of counsel and entry of his guilty plea
involuntarily.
However, 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
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examination of the record.”
S.W.3d 448, 452 (2001).
Fraser v. Commonwealth, Ky., 59
Because our examination of the record
establishes that Crowe received effective assistance of counsel
and gave his guilty plea voluntarily, an evidentiary hearing is
not required.
As Crowe offers no other issues of fact in
support of his claims, we affirm the trial court’s dismissal of
his motion and alternatively deny his request for an evidentiary
hearing.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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