DONALD C. LYNCH 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NOT TO BE PUBLISHED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-002218-MR
DONALD C. LYNCH
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 99-CR-00152
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI, AND VANMETER, JUDGES.
VANMETER, JUDGE.
Appellant Donald C. Lynch, appeals from an
October 10, 2002, order of the Pulaski Circuit Court, which
denied Lynch’s RCr 11.42 motion to vacate his conviction and
life sentence due to ineffective assistance of counsel at trial,
and denied his motions for an evidentiary hearing and for
appointment of counsel.
affirm.
For the reasons stated hereafter, we
In his RCr 11.42 motion, Lynch alleged that before and
during his murder trial his trial attorney represented his
ex-wife, Teresa Lynch (Teresa).
Since Teresa testified against
Lynch at trial, Lynch alleged that his trial attorney had a
conflict of interest that adversely impacted his representation
of Lynch.
The circuit court concluded from the record that no
conflict existed and denied Lynch’s RCr 11.42 motion and his
motions for evidentiary hearing and appointment of counsel.
Finding that the circuit court did not err when it denied
Lynch’s motions, this court affirms.
The facts of Lynch’s underlying conviction are set
forth in detail at Lynch v. Commonwealth, Ky., 74 S.W.3d 711
(2002), and will not be set forth at length here.
Basically,
Lynch was convicted of the murder of Steven Dale Richmond, and
that conviction was affirmed by the Kentucky Supreme Court.
In July of 2002, Lynch filed his RCr 11.42 motion with
the Pulaski Circuit Court and alleged he received ineffective
assistance of counsel.
First, he argued that his trial attorney
represented Teresa prior to and during his trial.
According to
Lynch, this caused a conflict of interest, which adversely
affected him at trial, because his attorney continued to
represent Teresa’s interests and intentionally protected her
during the trial to Lynch’s detriment.
Further, Lynch contended
that Teresa paid his trial attorney $10,000.00 to represent
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Lynch at trial.
According to Lynch, the conflict was
exacerbated because Teresa also owed Lynch’s attorney an
additional $5,000.00 which she refused to pay until the attorney
secured Lynch’s conviction.
Lynch contended that this conflict
of interest was the foundation of all the subsequent errors his
counsel committed.
The record, however, refutes Lynch’s claim
because the only time Teresa required representation was during
her divorce from Lynch, when Lynch’s criminal trial counsel
represented him, and Teresa was represented by other counsel.
Second, Lynch contended that his attorney rejected
Lynch’s proposed defense that Teresa, not he, killed Richmond
and chose to present false evidence at trial.
Third, Lynch
argued that his attorney failed to properly investigate Teresa’s
involvement in Richmond’s murder.
Fourth, he argued that his
attorney failed to properly cross-examine Teresa regarding her
motive for killing Richmond and failed to sufficiently impeach
her regarding his alleged confession to her.
Fifth, he argued
that his attorney failed to properly cross-examine the
Commonwealth’s witnesses.
Sixth, Lynch contended that his
attorney purposely elicited damaging testimony.
Seventh, Lynch
argued that his counsel refused to let him examine the discovery
material and withheld alleged exculpatory evidence.
Eighth,
Lynch argued that his attorney failed to object when the
Commonwealth elicited testimony regarding the marijuana found at
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Lynch’s home and failed to object to the inclusion of a prior
misdemeanor conviction in the presentence investigation report.
Ninth, Lynch argued that his attorney failed to present
mitigating evidence during the penalty phase.
Tenth, Lynch
argued that his trial attorney failed to call him to the stand
to testify on his own behalf.
Eleventh, Lynch argued that the
previous ten allegations constituted cumulative error.
In an order entered on October 10, 2002, the Pulaski
Circuit Court denied Lynch’s 11.42 motion and denied his motion
for an evidentiary hearing.
The circuit court found that none
of Lynch’s allegations constituted ineffective assistance of
counsel.
Also, the circuit court noted:
The Defendant [Lynch] and his estranged
wife, who was a witness at his trial, were
involved in divorce proceedings. One of the
trial attorneys represented him [Lynch] in
his divorce, and his wife was represented by
Hon. Melinda Gillum Dalton, who is married
to Hon. David Dalton, an assistant
commonwealth attorney. Prior to trial, the
Defendant moved to have the Commonwealth
Attorney’s office disqualified on the
grounds that the Defendant’s wife was
represented by an attorney married to an
assistant commonwealth’s attorney. The
Court found no conflict of interest in that
situation. The fact that the Defendant’s
trial attorney was also his attorney in his
divorce case does not constitute a conflict
of interest, and did not in any way render
his trial counsel ineffective.
Lynch then appealed to this Court.
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On appeal, Lynch cites Lewis v. Commonwealth, Ky., 411
S.W.2d 321, 322 (1967), and argues that the standard for summary
dismissal of an RCr 11.42 motion is “whether the motion on its
face states grounds that are not conclusively refuted by the
record and which, if true, would invalidate the conviction.”
Lynch argues that the trial court should look at the record not
to see whether it supports the claims made but rather to see
whether the record refutes those claims.
Ky., 68 S.W.3d 338 (2001).
Hodge v. Commonwealth,
Lynch cites Fraser v. Commonwealth,
Ky., 59 S.W.3d 448 (2001), and argues that an inmate who has
filed an RCr 11.42 motion is entitled to both an evidentiary
hearing and appointment of counsel if his motion raises any
material issue of fact that can neither be proved nor disproved
by the record.
Lynch contends that the Pulaski Circuit Court
failed to apply the above-mentioned case law to his
postconviction motions.
Lynch argues that he alleged that there
was a specific conflict of interest (that his attorney was
obligated to Teresa for his fee) that adversely affected his
trial attorney’s performance.
He asserts that since the record
did not refute this allegation, the trial court erred when it
denied Lynch an evidentiary hearing and appointment of counsel.
Lynch also argues that even if there were no
conflicts, his other allegations indicate ineffective assistance
of counsel.
We disagree.
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As the Supreme Court of Kentucky stated:
The standards which measure ineffective
assistance of counsel have been set out 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). In order to be ineffective, the
performance of defense counsel must be below
the objective standard of reasonableness and
so prejudicial as to deprive a defendant of
a fair trial and a reasonable result.
Strickland, supra. It must be demonstrated
that, absent the errors by trial counsel,
there is a reasonable probability that the
jury would have reached a different result.
Hodge v. Commonwealth, Ky., 116 S.W.3d 463,
468 (2003).
In his brief, Lynch argues that the conflict was
created when Teresa allegedly paid his legal fees.
However, in
his RCr 11.42 motion, Lynch argued that the conflict was created
because his trial attorney represented Teresa’s interests and
intentionally protected her during his murder trial at Lynch’s
expense.
He alleged that this conflict was exacerbated by the
fact that Teresa paid Lynch’s legal fees.
However, as the trial
court notes, the record shows that Teresa was represented by the
Hon. Melinda Gillum Dalton both before and during Lynch’s trial.
Thus, the record on its face refutes Lynch’s allegation that a
conflict existed because his trial attorney represented Teresa.
Furthermore, the record shows that at the time of the
murder, Lynch had approximately $40,000.00 in cash.
his RCr 11.42 motion, Lynch claimed that he possessed
In fact, in
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approximately $55,000.00 in cash at the time of the murder.
The
record suggests that Lynch had more than adequate resources to
pay his own legal fees, but even if Teresa had paid Lynch’s
legal fees, this does not establish the existence of a conflict
of interest.
As the movant, Lynch had the burden of
convincingly establishing that he was deprived of some
substantial right that would justify the extraordinary relief of
RCr 11.42.
(2003).
Hodge v. Commonwealth, Ky., 116 S.W.3d 463, 468
However, Lynch failed to meet this burden.
The circuit
court was not required to hold an evidentiary hearing so Lynch
could go on a fishing expedition in hopes of proving a
nonexistent conflict.
“Conclusionary allegations which are not
supported by specific facts do not justify an evidentiary
hearing because RCr 11.42 does not require a hearing to serve
the function of a discovery deposition.”
Sanders v.
Commonwealth, Ky., 89 S.W.3d 380, 385 (2002), citing Sanborn v.
Commonwealth, Ky., 975 S.W.2d 905 (1998).
Thus, this court
finds that the circuit court did not err in denying Lynch’s
motions for either an evidentiary hearing or RCr 11.42 relief.
As for Lynch’s other allegations, Lynch argued in his
RCr 11.42 motion that the alleged conflict of interest was the
foundation of all his subsequent allegations.
The record shows
that Lynch’s trial attorney never represented Teresa; thus, it
refutes Lynch’s allegation of conflict.
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Absent this foundation,
Lynch’s remaining allegations fail and need not be further
addressed.
The Pulaski Circuit Court’s order denying Lynch’s
postconviction motions is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib, Jr.
Appellate Public Advocate
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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