TERRY GILBERT v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: June 25, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2003-CA-001634-MR
TERRY GILBERT
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
INDICTMENT NO. 02-CR-00097
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY and MINTON, Judges.
MINTON, Judge.
Terry Gilbert, pro se, appeals the denial of his
petition for post-conviction relief pursuant to Rule of Criminal
Procedure (RCr) 11.42.
We affirm.
Gilbert was indicted on March 7, 2002, by a McCracken
County Grand Jury.
The indictment charged him with two counts
of trafficking in a controlled substance in the first degree
(methamphetamine), possession of drug paraphernalia in the first
degree, and carrying a concealed deadly weapon (brass knuckles).
More specifically, the indictment charged that on January 28,
2002, Gilbert and a co-defendant possessed with intent to sell
and sold a quantity of methamphetamine to an undercover police
officer while possessing drug paraphernalia and concealing brass
knuckles.
On
July
31,
2002,
Gilbert
entered
into
a
plea
agreement with the Commonwealth; and Gilbert and his counsel
signed the standard motion to enter guilty plea.
The trial
court specifically found that Gilbert understood the nature of
the
charges;
that
relinquishment
of
his
his
plea
right
was
a
against
knowing
and
voluntary
self-incrimination,
to
a
jury trial, to cross-examination of witnesses, to production of
evidence, and to an appeal; and that a factual basis existed for
the
plea.
On
October
14,
2002,
Gilbert
was
sentenced
in
accordance with his plea agreement to five years on each count
of trafficking in a controlled substance in the first degree,
methamphetamine, to run consecutive, and twelve months each on
possession
of
drug
paraphernalia
in
the
first
degree
and
carrying a concealed deadly weapon, to run concurrently, for a
total of ten years.
On July 7, 2003, Gilbert, pro se, filed a motion to
vacate judgment pursuant to RCr 11.42.
alleged
that
his
attorney
was
In the motion, Gilbert
ineffective
in
failing
to
investigate the chain of custody regarding the drugs tested in
his
case.
documentary
In
support
exhibits
of
said
consisting
-2-
motion,
of
Gilbert
Kentucky
State
attached
Police
requests for examination and a lab report which he alleged did
not
establish
that
the
same
drug
evidence
recovered
by
the
arresting officer was the same drug evidence received by the lab
for testing.
Gilbert also requested appointment of counsel and
an evidentiary hearing if necessary.
On July 23, 2003, the trial court summarily denied
Gilbert’s
motion
finding
that
the
documents
attached
to
Gilbert’s motion indicated that the “drugs recovered in his case
were sent to the lab, were received, were tested and that the
chain of custody was intact.”
On August 4, 2003, Gilbert filed a pro se notice of
appeal.
On appeal, Gilbert argues that counsel was ineffective
for advising him to plead guilty when there was insufficient
evidence;
chain
denial
of
ineffective
custody
of
due
on
process
the
assistance
of
drug
and
equal
evidence
counsel
for
protection
being
counsel’s
by
the
broken;
and
failure
to
investigate and file a motion to suppress the drug evidence on
the chain of custody issue.
Although tendered in three separate
arguments, all relate to an ineffective assistance claim on the
chain of custody issue.
Gilbert’s ineffective assistance of
counsel argument alleges that counsel’s advice to plead guilty
was based on a lack of investigation in the integrity of the
drug evidence.
If counsel had investigated, Gilbert alleges, he
would have found that the chain of custody on the drug evidence
-3-
was corrupted and thus evidence was lacking that the evidence
seized
at
the
scene
was,
of
this,
counsel
realization
suppress
the
guilty.
evidence
in
fact,
would
instead
of
methamphetamine.
have
filed
advising
a
Gilbert
Upon
motion
to
to
plead
We disagree.
Through
discovery
provided
by
the
Commonwealth,
Gilbert’s counsel was aware that pursuant to Gilbert selling
alleged
methamphetamine
suspected
to
methamphetamine
an
was
undercover
recovered
in
police
a
cigar
officer,
box
with
Gilbert’s prescription medication, scales, pipes, and Gilbert’s
driver’s
tested
license.
positive
One
for
baggie
found
in
the
methamphetamine.
cigar
The
box
field
Commonwealth
additionally provided counsel with the names of four Paducah
police officers involved in the transaction.
Additionally,
according
to
the
bill
of
particulars,
the Commonwealth provided counsel with an evidence log, a lab
report, prior convictions, a taped confession, methamphetamine,
and buy money.
Exhibit No. A, the Kentucky State Police Request
for Evidence Examination form, dated January 28, 2002, indicated
that Exhibits 1, 4, and 5, consisting of .8, .4, and .2 grams of
alleged methamphetamine, respectively, were recovered in Commonwealth v. Terry Gilbert, KSP case #02-3848 on January 28, 2002.
Further, Exhibit No. C, the KSP Lab Report, indicated that in
KSP Case No. #02-3848 (Terry Gilbert), Exhibits 1, 4, and 5 were
-4-
received by the lab examiner by registered mail on April 29,
2002,
and
upon
testing
each
were
found
to
contain
methamphetamine.
In order to prevail on an ineffective assistance of
counsel claim, 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);
702 S.W.2d 37 (1985).
accord
Gall
v.
Commonwealth,
He must demonstrate:
Ky.,
(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 that there is a
reasonable probability that the defendant would not have pleaded
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
probability
that
demonstrate
but
for
that
counsel’s
there
is
a
unprofessional
reasonable
errors,
he
would not have pleaded 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).
The record refutes Gilbert’s allegations.
claim
of
ineffective
assistance
for
counsel’s
Gilbert’s
failure
to
investigate is at most speculative that a suppression motion
-5-
would
have
been
granted
documentary evidence.
if
filed,
especially
given
the
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 Gilbert.
Under
these circumstances, we conclude that the record conclusively
proved that Gilbert’s counsel was not ineffective for failing to
investigate the facts of the case, nor was his representation
flawed by the decision not to file an unnecessary and futile
motion to suppress.
The order of the McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Terry Gilbert, #161875, Pro se
Kentucky State Reformatory
3001 West Highway 146
LaGrange, Kentucky
Gregory D. Stumbo
ATTORNEY GENERAL OF KENTUCKY
Frankfort, Kentucky
Todd D. Ferguson
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
