GENE COLLINS v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 4, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-002188-MR
GENE COLLINS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES SHAKE, JUDGE
ACTION NO. 97-CR-000909
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE;1 BUCKINGHAM AND VANMETER, JUDGES.
VANMETER, JUDGE.
Gene Collins appeals from an order of the
Jefferson Circuit Court denying his petition for postconviction
relief pursuant to RCr 11.42.
For the reasons stated below, we
affirm.
On April 10, 1997, Collins was indicted for
1
Chief Judge Emberton concurred in this opinion prior to his retirement
effective June 2, 2004.
first-degree trafficking in a controlled substance (KRS
218A.1412); tampering with physical evidence (KRS 524.100);
resisting arrest (KRS 520.090); illegal use or possession of
drug paraphernalia (KRS 218A.500); and first-degree persistent
felony offender (KRS 532.080).
The charges resulted from the allegation that on
November 29, 1996, Collins attempted to sell crack cocaine to
undercover police officers; that upon realizing that his
customers were police officers he tried to crush the cocaine;
that Collins attempted to fight the police when they tried to
arrest him; and that he had a crack pipe on his person.
The
persistent felony offender (PFO) indictment resulted from felony
convictions which occurred in 1992 and 1994.
On August 28, 1997, the trial court entered an order
referring Collins to drug court.
The referral to drug court was
pursuant to an agreement with the Commonwealth under which
the Commonwealth agreed to dismiss the charges if Collins
successfully completed the drug court program.
On July 30,
1998, a bench warrant was issued because Collins failed to
appear in drug court.
On August 24, 1998, a second bench
warrant was entered because Collins again failed to appear in
drug court.
On September 24, 1998, Drug Court Judge Henry Weber
issued an order terminating Collins from the drug court program.
The order stated that “the Defendant, having failed to meet the
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requirements of the Jefferson County Drug Court is hereby
transferred to Jefferson Circuit Court, Division Two, for
further proceedings.”
On June 9, 1999, Collins and the Commonwealth entered
into a plea agreement.
Pursuant to the plea agreement Collins
was to receive five years on the trafficking charge, one year on
the tampering charge, 12 months on the resisting arrest charge,
and 12 months on the paraphernalia charge, with all sentences to
run concurrently for a total of five years to serve.
However,
in exchange for a bond reduction pending sentencing, Collins
agreed to serve ten years on the trafficking charge if he failed
to appear at the sentencing hearing.
Collins subsequently
failed to appear at the scheduled sentencing hearing.
On
October 5, 1999, the trial court, consistent with the plea
agreement, entered final judgment sentencing Collins to a total
of ten years to serve.
On December 3, 2001, Collins filed a motion for
postconviction relief pursuant to RCr 11.42.
On January 24,
2002, the trial court entered an order denying Collins’ motion
for postconviction relief.
On January 28, 2002, Collins filed a
“Motion to Reconsider Opinion and Order.”
denied this motion on February 13, 2002.
The trial court
This appeal followed.
Collins’ first two arguments, that he was denied due
process when he was prosecuted in violation of his agreement
3
with the Commonwealth following his successful completion of
drug court, and that he was denied due process when the trial
court failed to conduct an evidentiary hearing regarding his
alleged failure to complete drug court before permitting the
prosecution to proceed, are not properly the subject of a RCr
11.42 motion.
Matters which were or could have been the subject
of an appeal may not be raised in a RCr 11.42 motion.
See Gross
v. Commonwealth, Ky., 648 S.W.2d 853, 857 (1983) (court holding
“the proper procedure for a defendant aggrieved by a judgment in
a criminal case is to directly appeal that judgment, stating
every ground which it is reasonable to expect that he or his
counsel is aware of when the appeal is taken”).
Any procedural
deficiencies in the termination of appellant’s diversion
referral clearly should have been the subject of a direct
appeal.
Next, Collins contends for various reasons that he
received ineffective assistance of counsel.
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, 39-40 (1985),
cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724
(1986).
In analyzing trial counsel's performance, the court
must "indulge a strong presumption that counsel's conduct falls
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within the wide range of reasonable professional assistance[.]"
Strickland, 104 S.Ct. at 2065.
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, 369-70, 88 L.Ed.2d 203 (1985).
See
also Phon v. Commonwealth, Ky. App., 51 S.W.3d 456, 459-460
(2001); Taylor v. Commonwealth, Ky. App., 724 S.W.2d 223, 226
(1986).
Collins alleges that he received ineffective
assistance of counsel because trial counsel failed to file a
motion to dismiss the indictment based upon his successful
completion of drug court.
The record demonstrates, however,
that Collins failed to successfully complete drug court.2
Consequently, trial counsel did not provide ineffective
assistance by failing to file a motion seeking to dismiss the
indictment based upon the flawed premise that Collins had
successfully completed the program.
Next, Collins contends that he received ineffective
assistance of counsel because trial counsel gave him erroneous
2
Collins’ allegation is that he completed the substantive portion of drug
court diversion, but failed only to complete the graduation part of the
program. Under any scenario, the graduation is a part of the program. In
addition, the record contains Collins’ admissions at the October 23, 1998,
hearing that he had relapsed into using illegal substances.
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advice concerning the range of penalties to which he was subject
under the April 10, 1997, indictment.
Collins’ argument is
based on the premise that because his 1992 and 1994 felony
charges3 had resulted in “concurrent or uninterrupted consecutive
prison terms” under KRS 532.080(4), they should have been deemed
to be only one (1) conviction for purposes of PFO sentencing, so
that he should have been charged only as a PFO second degree.
Further Collins’ argument to the trial court in support of his
motion for RCr 11.42 relief stated:
As a Second-Degree Persistent Felony Offender,
Collins faced punishment of five to ten years if
convicted of a Class D felony. Yet counsel
advised Mr. Collins that he faced ten to twenty
years even if convicted only of Possession of
Cocaine. Based on this advice, Mr. Collins
accepted a plea offer of five years - - five
years better than he believed he could hope for
at trial, and fifteen years better than the
maximum. Had Mr. Collins been advised correctly,
there is a reasonable probability he would have
gone to trial.
The fallacy of Collins’ argument is that one of the
prior convictions was for possession of a controlled substance.
Even under Collins’ argument, and assuming he would have risked
going to trial and receiving a possession conviction, that
charge was still a Class C felony because of the prior
3
The convictions which resulted in the PFO I charge against Collins were
1992 convictions for operating a motor vehicle under the influence, fourth
offense, and operating a motor vehicle while license is revoked for DUI, and
1994 convictions for first-degree possession of a controlled substance and
tampering with physical evidence.
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possession conviction.4
Due to his other prior felony conviction
of, fourth-offense DUI, Collins still faced a possible
second-degree PFO.
The end result was still a possible sentence
of ten to twenty years as a second-degree PFO, enhancing the
change of possession of a controlled substance, second-offense.
KRS 532.080(5).
Hence, even if Collins was only convicted of
being a second-degree PFO, he risked a twenty-year enhanced
sentence whether he was convicted of trafficking in cocaine or
convicted of possession of cocaine. In sum, Collins was properly
informed regarding the potential sentencing range if convicted
of possession of cocaine.
Next, Collins contends that his guilty plea was not
knowing, intelligent, and voluntary because he entered the plea
based upon erroneous information concerning the range of
penalties.
Again, this argument fails because Collins was
properly advised.
Finally, Collins contends that he was entitled to an
evidentiary hearing on his motion for postconviction relief.
It is well settled that an evidentiary hearing on a defendants’
RCr 11.42 motion is required only when the motion raises "an
issue of fact which cannot be determined on the face of the
record."
Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44
(1993); Hodge v. Commonwealth, Ky. 68 S.W.3d 338, 342 (2001).
4
Second-offense possession is a Class C felony.
7
KRS 218A.1415(2)(b).
The court need not conduct an evidentiary hearing regarding
issues which were refuted by the trial court’s record.
v. Commonwealth, Ky., 89 S.W.3d 380, 385 (2002).
Sanders
Here, because
all issues raised by Collins are refuted by the record of the
trial court, an evidentiary hearing is not required.
For the foregoing reasons the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Gregory Stumbo
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
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