KENNETH KING v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 15, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2001-CA-002705-MR
KENNETH KING
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
ACTION NO. 97-CR-00060-001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE:
PAISLEY and TACKETT, Judges; HUDDLESTON, Senior Judge.1
HUDDLESTON, Senior Judge.
Kenneth King appeals from a Madison
Circuit Court order that denied his petition for post-conviction
relief pursuant to Kentucky Rules of Criminal Procedure (RCr)
11.42 and Kentucky Rules of Civil Procedure (CR) 60.02.
contends
1
that
he
received
ineffective
assistance
of
King
counsel
Senior Judge Joseph R. Huddleston sitting as Special Judge
by assignment of the Chief Justice pursuant to Section 110(5)(b)
of the Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.
because his attorney recommended that he enter a guilty plea
although his indictment for both first-degree assault and firstdegree robbery violated the double jeopardy provisions of the
United States and Kentucky constitutions.
On
May
28,
1997,
King
and
his
codefendant,
John
William Martin, entered the home of Earl and Zetta Short.
King
and Martin stole Short’s wallet, which contained approximately
$1,500.00, and also stole Short’s vehicle, which they used to
flee the scene.
In the course of committing the thefts, King
and/or Martin struck Short in the head with a large flowerpot
causing serious physical injuries.
On June 5, 1997, King and Martin were indicted for
first-degree
robbery.4
assault,2
first-degree
burglary3
and
first-degree
On October 2, 1997, a superceding indictment was filed
adding second-degree persistent felony offender charges against
Martin.
On October 17, 1997, King entered a guilty plea to the
amended charge of attempted murder, first-degree burglary and
first-degree robbery.
in
accordance
with
The circuit court accepted the plea and,
the
plea
agreement,
sentenced
King
to
15
years’ imprisonment for attempted murder, 10 years for first2
KRS 505.010.
3
KRS 511.020.
4
KRS 515.020.
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degree burglary and 15 years for first-degree robbery, to run
consecutively for a total of 40 years.
On
relief.
He
March
17,
also
evidentiary hearing.
denied the motions.5
2000,
sought
King
moved
appointment
for
of
post-conviction
counsel
and
an
On February 5, 2001, the circuit court
This appeal followed.
King argues that he received ineffective assistance of
counsel
when
his
attorney
failed
to
raise
a
double
jeopardy
challenge to his indictment for both first-degree assault and
first-degree robbery.
Appellate counsel for King filed a brief
pursuant to Anders v. California6 conceding that there appears to
be no meritorious basis for the appeal.
The
two-pronged
test
for
ineffective
assistance
of
counsel is (1) whether counsel made errors so serious that he
was
not
Amendment
functioning
to
the
as
"counsel"
Constitution
of
guaranteed
the
United
by
the
States
Sixth
and
(2)
whether the deficient performance prejudiced the defense.7
In
analyzing trial counsel's performance, the court must "indulge a
5
The circuit court denied King’s motion for appointment of
counsel for proceedings in the court, but granted the motion in
the event King desired to appeal its rulings.
6
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
7
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984); Gall v. Commonwealth, Ky.,
702 S.W.2d 37, 39 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct.
3311, 92 L.Ed.2d 724 (1986).
-3-
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance [.]"8
Where an appellant challenges a guilty plea based on
ineffective counsel, he must show both that counsel made serious
errors
outside
assistance,9
affected
the
and
the
that
outcome
wide
range
the
of
of
deficient
the
plea
professionally
competent
performance
seriously
process
that,
so
but
for
the
errors of counsel, there is a reasonable probability that the
defendant would not have pled guilty, but would have insisted on
going to trial.10
The
enunciated
in
appropriate
test
Commonwealth
v.
for
Burge.11
double
In
jeopardy
Burge,
was
Kentucky
departed from the so-called "same conduct" test described in
Grady v. Corbin,12 and in Walden v. Commonwealth13 and reinstated
8
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 104 L. Ed.
2d at 694.
9
McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441,
1449, 25 L.Ed.2d 763 (1970).
10
Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88
L.Ed.2d 203 (1985).
11
Ky., 947 S.W.2d 805, 811 (1996), cert. denied, sub nom.
Effinger v. Kentucky, 522 U.S. 971, 118 S. Ct. 422, 139 L.Ed.2d
323 (1997).
12
495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990),
overruled, United States v. Dixon, 509 U.S. 688, 113 S. Ct.
2849, 125 L.Ed.2d 556 (1993).
-4-
the Blockburger rule "as the sole basis for determining whether
multiple convictions arising out of a single course of conduct
constitutes double jeopardy."14
According to the United States
Supreme Court, "the test . . . to determine whether there are
two
offenses
or
only
one
is
whether
each
provision
requires
proof of an additional fact which the other does not."15
Kentucky Revised Statutes (KRS) 508.010 defines firstdegree assault as follows:
(1) A person is guilty of assault in the first degree
when:
(a) He intentionally causes serious physical injury to
another person by means of a deadly weapon or a
dangerous instrument; or
(b)
Under
circumstances
manifesting
extreme
indifference to the value of human life he wantonly
engages in conduct which creates a grave risk of death
to another and thereby causes serious physical injury
to another person.
And KRS 515.020 defines first-degree robbery as follows:
(1) A person is guilty of robbery in the first degree
when, in the course of committing theft, he uses or
threatens the immediate use of physical force upon
another person with intent to accomplish the theft and
when he:
13
Ky., 805 S.W.2d 102, 106 (1991), overruled, Commonwealth v.
Burge, supra.
14
Taylor v. Commonwealth, Ky., 995 S.W.2d 355, 358 (1999).
15
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
180, 182, 76 L. Ed 306 (1932).
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(a) Causes physical injury to any person who is not a
participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous
instrument upon any person who is not a participant in
the crime.
King’s
indictment
for
first-degree
robbery
was
premised upon KRS 515.020(1)(a), use of physical force with the
intent
to
accomplish
another person.
a
theft
and
causing
physical
injury
to
King’s indictment for first-degree assault was
premised upon KRS 508.010(1)(a), intentionally causing serious
physical injury to another person by means of a deadly weapon or
a dangerous instrument.
A
first-degree
robbery
conviction
under
KRS
515.020(1)(a) requires proof of a theft or attempted theft, an
element not required for a conviction of first-degree assault
under
degree
KRS
508.010(1)(a).
assault
under
KRS
Similarly,
a
508.010(1)(a)
conviction
requires
of
proof
firstof
a
serious physical injury inflicted by means of a deadly weapon or
dangerous instrument, an element not required for a conviction
of first-degree robbery under KRS 515.020(1)(a).
Thus, each
offense requires proof of an additional fact which the other
does not, so there is no violation of double jeopardy.
Pursuant
to
the
plea
agreement,
the
assault charge was amended to attempted murder.
-6-
first-degree
A conviction
for attempted murder under KRS 507.020 and KRS 506.010 requires
proof that the defendant intended to cause the death of another
person and that he took a substantial step toward the commission
of it.
For reasons similar to those stated above, conviction of
both first-degree robbery and attempted murder does not violate
double jeopardy.
As there was no violation of double jeopardy under the
Blockburger
test
under
either
the
original
charges
or
the
charges as amended in the plea agreement, trial counsel did not
provide ineffective assistance by failing to raise the issue.
Finally, since King’s motion failed to specify grounds
and supporting facts which, if true, would warrant relief, he
was not entitled to appointment of counsel; and since his motion
could be resolved on the face of the record, a hearing was not
required.16
The
order
denying
King’s
post-judgment
motions
affirmed.
ALL CONCUR.
16
Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 452 (2001).
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is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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