ROGER WHITAKER v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 8, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001213-MR
ROGER WHITAKER
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 01-CR-00105
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, COMBS, and SCHRODER, Judges.
COMBS, JUDGE.
Roger Whitaker, pro se, has appealed from the
denial of his motion by the Bullitt Circuit Court.
Although the
motion was captioned as a “motion for modification of sentence,”
it was treated as one filed pursuant to RCr1 11.42.
We affirm.
Whitaker was indicted on August 31, 2001, by a Bullitt
County grand jury.
The indictment charged him with possession
of a controlled substance in the first degree, manufacturing
methamphetamine, and being a persistent felony offender in the
1
Kentucky Rules of Criminal Procedure.
first degree (PFO I).
Whitaker entered into a plea agreement in
which the Commonwealth offered to dismiss the manufacturing
methamphetamine charge, to recommend that his sentence run
concurrently with any related federal sentence, and to make a
sentencing recommendation of five-years’ imprisonment -enhanced to ten years.
In exchange, Whitaker entered his guilty
plea on October 16, 2001, to possession of methamphetamine and
to being a persistent felony offender in the first degree.
Whitaker and his counsel signed the standard form 491
of the Administrative Office of the Courts, and the trial court
entered a judgment of conviction on the guilty plea following
the Commonwealth’s sentencing recommendation.
The trial court
specifically found that Whitaker understood the nature of the
charges against him and that he knowingly and voluntarily waived
his rights.
On December 17, 2001, Whitaker was sentenced to
five-years’ imprisonment enhanced to ten years in accordance
with the Commonwealth’s recommendation.
On January 11, 2002 an
agreed order was entered indicating that Whitaker was entitled
to a credit of 263-days for time served.
Whitaker filed a document styled “motion for
modification of sentence” in April 2002.
In the motion, he
alleged that he had been denied the effective assistance of
counsel in numerous respects.
The trial court treated his pro
se motion as one for relief pursuant to RCr 11.42.
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In an order
entered on May 2, 2002, the circuit court summarily denied the
motion.
On May 30, 2002, Whitaker filed another document
styled “motion to reopen and amend.”
In this motion, he
contended that the court’s order denying relief should be set
aside since his April motion had been “filed in error, by a
Legal Assistant at the Roederer Correctional Complex, on behalf
of Defendant. . . .”
He contended that the April motion should
not have been construed as one for RCr 11.42 relief but as an
untimely request to modify his sentence.
On May 31, 2002, Whitaker’s defense attorney filed a
notice of appeal, and the Department of Public Advocacy (the
DPA) immediately undertook his representation.
Later, after
closely reviewing the record, the DPA concluded that the appeal
was not one that a reasonable person with adequate means would
be willing to bring at his own expense.
KRS2 31.110(2)(c).
As a
result, the Department contended, Whitaker had “no further right
to be represented by counsel under the provision of [the public
advocacy statutes].” Citing KRS 31.110(2), the DPA requested
permission to withdraw as Whitaker’s counsel.
On December 2,
2002, we granted the DPA’s motion to withdraw from
representation.
Whitaker was given 60 days in which to file a
brief.
2
Kentucky Revised Statutes.
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Instead of pursuing the appeal, Whitaker filed a
motion to dismiss the appeal in January 2003.
He argued again
that his April motion for relief should not have been treated as
a request for relief pursuant to RCr 11.42.
However, he argued
that since the motion was unverified and otherwise deficient,
the trial court had never acquired jurisdiction to entertain it.
The Commonwealth opposed the motion.
Concluding that the
procedural defects in Whitaker’s motion had been waived by the
Commonwealth, a motion panel of this court denied the motion to
dismiss and assigned the appeal to this panel on the merits of
the case.
On appeal, Whitaker argues that the trial court erred
by denying his motion based on ineffective assistance of counsel
without an evidentiary hearing.
We disagree.
In order to prevail on a claim of ineffective
assistance of counsel, the defendant must satisfy the two-part
test set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth,
Ky., 702 S.W.2d 37 (1985).
He must demonstrate:
(1) that
counsel made errors so serious that counsel’s performance fell
outside the wide range of professionally competent assistance so
that counsel was not performing up to the standard of
representation guaranteed by the Sixth Amendment; and (2) that
the deficient performance prejudiced the defense so seriously
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that there is a reasonable probability that the defendant would
not have pled guilty and that the outcome would have been
different.
In order to show actual prejudice in the context of
a guilty plea, a defendant must demonstrate that there is a
reasonable probability that but for counsel’s unprofessional
errors, he would not have pled guilty and would have insisted on
going to trial.
Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366,
88 L.Ed.2d 203 (1985).
Whitaker intimates that his defense attorney, Rebecca
Murrell, persuaded him to accept the Commonwealth’s offer only
because she had inadequate time to prepare properly for trial
and had failed to request a continuance.
Whitaker cites
portions of Murrell’s correspondence in support of his
contention.
In a letter dated September 21, 2001, Murrell advised
Whitaker that his case had been scheduled for trial on October
11, 2001.
She indicated that she would meet with him to discuss
the case following her review of the discovery materials
provided by the Commonwealth and that he should feel free to
contact her at any time with information or questions about his
case.
However, Murrell advised Whitaker that she anticipated
being involved in a murder trial when the discovery materials
were likely to be forwarded to her office.
Consequently, she
indicated that his trial might have to be continued to a later
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date since she would need adequate time to prepare the case for
trial.
We cannot construe this correspondence as pressuring
Whitaker to accept the Commonwealth’s offer.
The correspondence
merely kept Whitaker properly advised of the status of his case
and explained that a continuance might be necessary due to
Murrell’s time constraints and that it would not, therefore,
entitle him to a dismissal for failure of the court to try him
within 180 days (in accordance with his pro se request for a
speedy trial pursuant to KRS 500.110).
The record before us
shows that Murrell was willing and able to protect her client’s
interests at every juncture and that she was meticulous in
keeping him fully informed as to the status of his case.
As an
example, we quote the following exchange between the parties
recorded on October 15, 2001:
THE COURT: Okay. Can we get an OFAP [Order
for Appearance of Prisoner] tomorrow?
MS. MURRELL: He’s [Whitaker] at Community
Corrections Center in Jefferson County.
I’ll advise the Court right now that if it
has to go tomorrow I’ll put on the record an
objection to have him to try it tomorrow
even though my client wants to go forward.
I have not had it long enough to prepare.
THE COMMONWEALTH: We won’t object to that.
Of course he’s made that Speedy Trial Motion
and that’s got us all in a bind.
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MS. MURRELL: Well, it does. And that
probably will have to control over what my
wishes are.
The record refutes Whitaker’s claim that Murrell’s
statements to him caused him to believe that he had no choice
but to plead guilty because she was unprepared to present a
defense and had failed to request a continuance.
Consequently,
the trial court did not err by summarily denying the motion for
relief on this ground.
Fraser v. Commonwealth, Ky., 59 S.W.3d
448 (2001).
Next, Whitaker claims that his guilty plea was not
knowing, voluntary, and intelligent because counsel failed to
investigate the evidence thoroughly.
He maintains that the
police failed to handle and collect the evidence properly and
that they also failed to maintain a proper chain of custody.
Thus, he argues that the evidence collected against him could
not have been shown to be reliable and could not have been used
against him at trial even if he had he decided to go forward.
Whitaker contends that if counsel had properly “investigated the
facts of this case, she would have learned that all of the
Commonwealth’s evidence in this case was inadmissible. . . .”
Appellant’s brief at p. 5.
Consequently, he submits that his
counsel was ineffective for failing to investigate the integrity
of the evidence and to follow up with a motion to suppress.
disagree.
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We
Through discovery provided by the Commonwealth,
Whitaker’s counsel was aware that the police had retrieved a
black and red gym bag from the vehicle that Whitaker was driving
when he was apprehended.
The gym bag contained more than 20
assorted household items commonly used in the manufacture of
methamphetamine.
Additionally, the police retrieved plastic
containers holding white residue identified as methamphetamine,
and they took twenty-three photographs of the scene and of the
physical evidence.
The Commonwealth provided counsel with the
names of ten Kentucky State Police and Jefferson County Police
Department personnel who had observed Whitaker’s alleged
offenses and had helped to subdue him.
The Commonwealth also provided counsel with copies of
an investigation report, recovered property reports, and chain
of custody forms.
The reports and forms detailed how the
individual items of evidence had been properly marked for
identification and where and by whom the items had been
deposited for safekeeping.
The state of the record as it
existed at the time of the guilty plea was credible, and the
Commonwealth’s ability to complete the chain of custody was
thorough.
Thus, if the case had proceeded to trial, we do not
believe that the trial court had any reasonable basis for
suppressing the evidence collected against Whitaker.
Under
these circumstances, we conclude that the record conclusively
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proved that Whitaker’s counsel was not ineffective for failing
to investigate the facts of the case nor was her representation
flawed by the decision not to file an unnecessary and futile
motion to suppress.
An evidentiary hearing was not required.
Whitaker also contends that his guilty plea was
induced by misrepresentations made to him both by the
Commonwealth and by his defense counsel.
He claims that he was
under the impression that he had agreed to plead guilty to being
a persistent felony offender in the second degree (PFO II)
rather than to a PFO I.
He says he would not have pled guilty
if he had known the true nature of the plea agreement.
In his
brief, Whitaker states that he “simply went along with the Judge
at the Boykin Hearing, thinking that he was pleading guilty to
the P.F.O. II.”
Appellant’s brief at p. 4.
Whitaker also cites
a page from a pre-sentence investigation report (prepared by a
probation and parole officer) that misidentified his offenses.
However, the record shows conclusively that throughout
the course of the proceedings, Whitaker understood that he was
pleading guilty to being a PFO I and not a PFO II.
He signed a
petition to enter his guilty plea in open court and in the
presence of his defense counsel.
The petition recited that
Whitaker was charged in count three of the indictment as being a
PFO I, that he was aware of the facts that would have to be
proven in order to convict him of being a PFO I, and that he
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was, in fact, pleading guilty to being a PFO I as charged under
count three of the indictment.
During the plea proceedings, the
trial court carefully engaged in a lengthy and thorough
interchange with Whitaker.
The court painstakingly explained
the terms of the indictment, the potential sentence for each
offense, and the Commonwealth’s recommendation with respect to
each offense.
The court questioned Whitaker extensively and
repeatedly with respect to his understanding of the charges
against him and the nature and consequences of his guilty plea.
Whitaker indicated to the court that he understood everything
about the proceedings, that he was satisfied with his
representation, and that he was prepared to enter a guilty plea
pursuant to his agreement with the Commonwealth.
No discussion
of a PFO II offense ever occurred.
Whitaker is correct that the pre-sentence
investigation report of November 20, 2001, does erroneously
identify him as being a PFO II.
However, any clerical error in
that report was fully cured by the extensive colloquy with court
that his plea indeed involved PFO I.
Under these circumstances,
we conclude that the record conclusively proves that Whitaker’s
plea was not induced by misrepresent-ations made either by the
Commonwealth or by defense counsel.
Finally, Whitaker maintains that defense counsel
rendered ineffective assistance by intervening on his behalf
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after his motion styled as a “motion for modification of
sentence” was filed in April 2002.
While Whitaker did assert in
the motion that he had been denied the effective assistance of
counsel, he contends that defense counsel erred by filing a
motion on his behalf to have the motion treated as one for RCr
11.42 relief.
In the motion, Murrell clearly identified herself as
Whitaker’s former counsel.
In its order, the trial court
recounted its difficulty in determining the true nature of
Whitaker’s pro se motion, explaining that since the motion
requested relief based only upon the alleged deficiencies of
counsel, it would be treated as a motion for relief pursuant to
RCr 11.42.
We find no merit in this contention as Whitaker was
not prejudiced in any fashion by counsel’s motion. The trial
court did not err when it summarily determined that Whitaker’s
counsel had not rendered ineffective assistance.
The order of the Bullitt Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Roger Whitaker, pro se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
William L. Daniel, II
Assistant Attorney General
Frankfort, Kentucky
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