ANTONIO WINN v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 2, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002257-MR
ANTONIO WINN
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
ACTION NO. 00-CR-00313
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
Judge.1
COMBS, Chief Judge; DYCHE, Judge; and EMBERTON, Senior
COMBS, CHIEF JUDGE.
Antonio Winn (“Winn”) appeals two orders of
the Fayette Circuit Court entered on October 13, 2003.
The
first order denied a Motion to Recuse filed pursuant to KRS2
26A.015(2) and Canons 2 and 3 of the Kentucky Code of Judicial
Conduct, SCR 4.300, seeking to recuse Hon. Rebecca Overstreet
1
Senior Judge Thomas Emberton sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Kentucky Revised Statutes
from presiding over Winn’s post-conviction motion for relief.
The second order overruled his Motion to Vacate Judgment
pursuant to RCr3 11.42.
Having carefully reviewed the record,
the arguments presented by counsel, and the applicable law, we
find no error in the denial of both the Motion to Vacate
Judgment and the Motion to Recuse. Thus, we affirm.
On March 20, 2000, a Fayette County Grand Jury
indicted Winn for: (1) possession of a controlled substance,
first-degree; (2) tampering with physical evidence; (3)
receiving stolen property; (4) first-degree bail jumping; (5)
possession of drug paraphernalia; and (5) the status offense of
first-degree persistent felony offender (“PFO I”).
Three days
later, Winn was arraigned in the Fayette Circuit Court and was
represented by court-appointed counsel.
On April 21, 2000, Winn entered a plea of guilty to
the charges of First-Degree Bail Jumping and First-Degree
Persistent Felony Offender. The Commonwealth recommended a tenyear sentence for the bail jumping and PFO convictions in return
for Winn’s guilty plea, and it agreed to dismiss the remaining
charges.
On May 12, 2000, Winn appeared before the court for
final sentencing.
He was sentenced to serve six-months’
incarceration with the balance of a twenty-year sentence to be
3
Kentucky Rules of Criminal Procedure
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probated for five years.
The Court entered a Final Judgment and
Sentence of Probation on May 16, 2000.
Because the Court
declined to accept the Commonwealth’s sentencing recommendation,
Winn was afforded the opportunity to withdraw his plea.
However, he elected not to withdraw his plea.
Winn’s probation officer filed an affidavit to revoke
probation on September 4, 2000.
Winn:
The affidavit alleged that
(1) failed to report as directed to the probation
officer, (2) failed to complete the recommended substance abuse
treatment, and (3) failed to pay the court ordered fees.
On
September 22, 2000, Winn attended a probation revocation hearing
and admitted to violating the terms of his probation.
On
September 25, 2000, he was remanded to custody for service of
his twenty-year sentence.
On April 4, 2003, Winn filed a pro se motion for an
order vacating his sentence pursuant to RCr 11.42, alleging that
he had received ineffective assistance of counsel.
On September
19, 2003, a Supplemental Memorandum of Law and Facts in support
of the motion for relief was filed.
Winn later filed a motion
pursuant to KRS 26A.015(2) and Kentucky’s Code of Judicial
Conduct to recuse the trial judge from presiding over the
motion.
The Commonwealth filed a response to both motions on
October 6, 2003.
On October 13, 2003, the trial court denied
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both the motion for RCr 11.42 relief and the motion for recusal.
This appeal followed.
Winn raises two issues on appeal.
First, he argues
that the trial court erred in concluding that his guilty plea
had been knowing, intelligent, and voluntary.
Second, he
contends that he received ineffective assistance of counsel.
Involved in both issues is his allegation of lack of
impartiality on the part of the trial judge requiring recusal.
We find his argument to be without merit.
The standard of review for ineffective assistance of
counsel is set out in Strickland v. Washington, 466 U.S. 688,
104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).
Strickland requires
that both parts of a two-pronged test be met. The movant must
demonstrate: (1) that the trial counsel was deficient in his
performance professionally and (2) that the deficiency caused
actual prejudice to the defendant, resulting in an adverse
In Haight v. Commonwealth, Ky., 41 S.W. 3d
outcome at trial.
436 (2001), the Supreme Court discussed the Strickland test and
declared counsel to be ineffective when his professional
performance is “below the objective standard of reasonableness
and so prejudicial as to deprive a defendant of a fair trial and
reasonable result.”
Id. at 441.
Winn argues that the court violated his right to due
process by interfering with the plea bargaining process.
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He
cites RCr 8.10, arguing that there is no provision within the
rule for a judge to make a “counteroffer” upon rejection of the
plea agreement.
Winn alleges that “the Judge merely used the
Appellant’s desperate desire for probation to extract his
agreement to a twenty year sentence.” (Appellant’s brief, p.5.)
We do not agree.
Prior to Winn’s final sentencing hearing, plea
negotiations were undertaken and a plea bargain was tendered to
the court. Although the Commonwealth had recommended a ten-year
sentence for a plea of guilty, the court clearly and
unequivocally advised Winn that the maximum sentence of twenty
years could be invoked if he violated his probation.
RCr 8.10
gives a trial court discretion to “advise the defendant that if
the defendant persists in that guilty plea the disposition of
the case may be less favorable to the defendant than that
contemplated by the plea agreement.”
Our review of the record
indicates that the trial court thoroughly advised Winn that it
was not bound by the recommendation and that the court could
“ignore it completely.”
This colloquy did not constitute a
counteroffer.
Additionally, the trial record does not support Winn’s
contention that he did not enter into his plea agreement
knowingly, intelligently, and voluntarily.
Boykin v. Alabama,
395 U.S.23C, 89 S. Ct. 1709, 23 L. Ed. 274 (1969).
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At his
sentencing hearing, Winn was again advised by the trial court
that it retained discretion to accept or to reject in toto the
Commonwealth’s recommendation. He indicated that he understood
and that he still wanted to plead guilty--and that he was doing
so willing, freely, and intelligently.
Winn expressed his
desire to allow the court to sentence him to punishment “with a
range of one to five years on count four, enhanced to ten to
twenty years under count six.”
Winn stated that he understood
that he had the right to withdraw the guilty plea and to move
forward to trial.
The trial court asked Winn numerous times
whether he understood what it was saying with regard to the
guilty plea.
According to the record, Winn showed no indication
of hesitancy, misunderstanding, or objection.
We find no Boykin
error.
Winn’s second principal argument is that he received
ineffective assistance of counsel when his defense counsel
failed to investigate and to advise him adequately.
Winn
alleges that trial counsel “failed to inform Appellant that the
proceedings could have been stopped once the Judge interjected
herself into the process and Appellant could have appealed.”
Winn claims that “he would not have pled guilty if he had
known/been aware of the fact that the judge did not have
jurisdiction to mandate the parameters of the plea bargain.”
(Motion to Vacate or Amend Sentence at pg. 2).
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We disagree
that the judge became involved in the plea process itself and
hold that the trial court properly advised Winn of the penalty
that would likely be imposed upon violation of probation.
At the heart of this RCr 11.42 motion lies Winn’s
allegation of lack of judicial impartiality and interference
into the plea bargaining process.
Winn contends that recusal is
proper pursuant to KRS 26A.015(2) and the Kentucky Code of
Judicial Conduct (Canons 2 and 3).
The judicial
disqualification statute (KRS 2A.015) provides that:
Any justice or judge of the Court of Justice
or master commissioner shall disqualify
himself in any proceeding: (a) where he has
a personal bias or prejudice concerning a
party, or personal knowledge of disputed
evidentiary facts concerning the
proceedings, or has expressed an opinion
concerning the merits of the proceeding.
We find no factual basis to support Winn’s accusations
of personal bias or prejudice during the proceeding.
“The
burden of proof required to demonstrate that recusal of a trial
judge is mandated is an onerous one.”
Brand v. Commonwealth,
Ky. App., 939 S.W.2d 358, 359 (1997).
In addition to the statute, Winn relies on Canons 2
and 3 of the Kentucky Code of Judicial Conduct, SCR 4.300.
Canon 2 provides:
A judge shall avoid impropriety and the appearance of
impropriety in all of the judge’s activities.”
The
test for determining the appearance of impropriety is:
whether the conduct would create in reasonable minds a
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perception that the judge’s ability to carry out
judicial responsibilities with integrity, impartiality
and competence is impaired.
Kentucky Code of Judicial Conduct, SCR 4.300, Canon 2A,
Commentary.
We have carefully reviewed the record, and we
cannot find any indication that a reasonable mind could construe
impropriety in the conduct of the trial judge.
Nor can we discover any foundation to invoke Canon 3.
Canon 3 provides: “A judge shall perform the duties of a
judicial office impartially and diligently.”
The Commentary to
Canon 3 B(9) adds:
A judge should encourage and seek to facilitate
settlement, but parties should not feel coerced into
surrendering the right to have their controversy
resolved by the courts.
We believe that the trial judge performed her duties impartially
and diligently.
The record supports the fact that she merely
confirmed Winn’s understanding of the agreement and that she did
not interject herself into the plea bargaining process so as to
interfere in the exchange between the Commonwealth and the
Defendant.
Winn has failed to establish the deficiency prong of
Strickland, supra.
“The reasonableness of counsel's actions may
be determined or substantially influenced by the defendant's own
statements or actions.”
Id. at 691.
Winn acknowledged to the
court that he had sufficient time to consult with his attorney
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and that he was satisfied with his attorney’s representation.
He indicated his understanding of: (1) the presumption of his
innocence and the Commonwealth’s burden of proof; (2) his right
to counsel and to a jury trial; (3) the fact that he could
remain silent and refuse to testify; (4) his rights to confront
the Commonwealth’s witnesses, to compel production of evidence,
to an appeal, and to appointed appellate counsel; (5) the waiver
of right to withdraw his plea of guilt; and (6) the impact of
his plea upon his right to an appeal.
As Winn has failed to establish deficient performance
of his counsel, we need not discuss the prejudice prong of
Strickland.
The order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sara H. Jost
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
John R. Tarter
Assistant Attorney General
Frankfort, Kentucky
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