CHRISTOPHER DONATELLI v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 25, 2005; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000984-MR
CHRISTOPHER DONATELLI
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 03-CR-00578
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
SCHRODER, TAYLOR, AND VANMETER, JUDGES.
VANMETER, JUDGE:
If a criminal defendant is represented by a
lawyer who also represents a codefendant, that criminal
defendant must be informed of the possible conflict of interest
by the trial judge and must sign a waiver of the possible
conflict.1
The failure to do so, however, does not necessitate
reversal, but requires a defendant to demonstrate an actual
conflict of interests.
1
RCr 8.30(1).
In this case, we hold that the
defendant, Christopher Donatelli, has failed to do so, and we
therefore affirm.
The facts of this case are relatively straightforward.
On November 6, 2003, Donatelli and three other individuals,
Gerding, Knox, and Howard, were arrested after hours on the
premises of a junkyard.
All four were charged with theft by
unlawful taking over $3002 and possession of burglar’s tools.3
In addition, Donatelli was charged with persistent felony
offender (PFO) first degree.4
One public defender was appointed
to represent Donatelli, Gerding and Knox.
The fourth
codefendant, Howard, retained separate counsel.
Prior to
Donatelli’s and Gerding’s March 29, 2004 trial, Knox plead
guilty to felony theft, and Howard plead guilty to misdemeanor
theft.
At trial, all four testified consistently that Knox and
Howard had removed all the stolen parts from the cars at the
junkyard, and that Donatelli and Gerding were just tagging along
and did not participate in the theft.
The jury convicted
Donatelli of both felony theft and possession of burglar’s
tools, and he entered a guilty plea to PFO first degree.
On May
5, 2004, Donatelli was sentenced to five years for theft by
unlawful taking over $300, enhanced to ten years by PFO first
2
KRS 514.030.
3
KRS 511.050.
4
KRS 532.080.
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degree, and one year for possession of burglar’s tools, with the
sentence running concurrent.5
This appeal follows.
The sole issue advanced by Donatelli on this appeal is
that the failure of the trial court to comply with the
requirements of RCr 8.30(1) necessitates reversal of his
conviction.6
This rule provides:
If the crime of which the defendant is
charged is punishable by a fine of more than
$500, or by confinement, no attorney shall
be permitted at any stage of the proceedings
to act as counsel for the defendant while at
the same time engaged as counsel for another
person or persons accused of the same
offense or of offenses arising out of the
same incident or series of related incidents
unless (a) the judge of the court in which
the proceeding is being held explains to the
defendant or defendants the possibility of a
conflict of interests on the part of the
attorney in that what may be or seem to be
in the best interests of one client may not
be in the best interests of another, and (b)
each defendant in the proceeding executes
and causes to be entered in the record a
statement that the possibility of a conflict
of interests on the part of the attorney has
been explained to the defendant by the court
and that the defendant nevertheless desires
to be represented by the same attorney.
In this case, the record contains no indication that
the requirements of this rule were followed.
However, in
5
By Order entered May 17, 2004, the Campbell Circuit Court dismissed with
prejudice the misdemeanor charge of Possession of Burglar’s Tools.
6
The Commonwealth argues that Donatelli failed to preserve this issue for
review. Authority exists, however, that a defendant may raise the issue on
appeal for the first time. See Holder v. Commonwealth, 705 S.W.2d 907, 909
(Ky. 1986).
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Kirkland v. Commonwealth,7 the Kentucky Supreme Court held that
the failure of a circuit court to comply with the requirements
of RCr 8.30(1) is “not presumptively prejudicial and does not
warrant automatic reversal.
A defendant must show a real
conflict of interest in order to obtain reversal.”8
Donatelli argues that the holding of Kirkland should
be limited to its facts, in that Kirkland involved codefendants
who were represented by two separate public defenders who worked
out of the same office.
His argument is that factually this
case is similar to Peyton v. Commonwealth,9 in which the Kentucky
Supreme Court adopted a “bright-line” rule by which the failure
to comply with RCr 8.30(1) was “presumptively prejudicial.”10
The problem with Donatelli’s otherwise persuasive argument is
that while the Kentucky Supreme Court in Kirkland initially
seemed to make a factual distinction between Peyton and
Kirkland, it ultimately and unequivocally held that Peyton v.
Commonwealth and Trulock v. Commonwealth11 are overruled.12
7
53 S.W.3d 71 (Ky. 2001).
8
Id. at 75.
9
931 S.W.2d 451 (Ky. 1996).
10
Id. at 453.
11
620 S.W.2d 329 (Ky. App. 1981).
12
53 S.W.3d at 75.
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Further, it reinstated the decisions of Smith v. Commonwealth13
and Conn v. Commonwealth.14
Since these latter two cases
involved codefendants who, similar to Donatelli, were
represented by one lawyer, we conclude that the court in
Kirkland did not intend its holding to be limited factually, but
instead intended to reinstate a case-by-case analysis, such that
a violation of RCr 8.30 “which does not result in any prejudice
to the defendant, should not mandate automatic reversal.”15
Here, the record discloses that two of Donatelli’s
codefendants, Knox and Harding, accepted responsibility for the
crime, pled guilty, and testified that Donatelli and the
remaining codefendant, Gerding, did not participate.
Donatelli’s trial counsel at no point advised the circuit court
that he had a conflict.
Donatelli advances no argument as to
any manner in which he was prejudiced.
believe the testimony of the defendants.
The jury simply did not
Although Donatelli
speculates that a subsequently–sentenced codefendant might
implicate him as a full participant in the crime, there is
nothing in the record to show that such did or will occur.
Instead, the record indicates that all of the codefendants
testified consistently.
13
669 S.W.2d 527 (Ky. 1984).
14
791 S.W.2d 723 (Ky. 1990).
15
As Donatelli has demonstrated no real
53 S.W.3d at 75.
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conflict of interest, it follows that the failure of the trial
court to comply with the requirements of RCr 8.30(1) was
harmless error.
Holder v. Commonwealth16 does not require a different
result.
In Holder, one of the three codefendants made
out-of-court statements admitting guilt and implicating the
other two, who maintained their innocence.
The court found a
“built-in conflict of interest” in such a situation.17
That
situation does not exist in the instant case however, as all
four codefendants consistently maintained the same version of
events, including that Donatelli and Gerding were not guilty.
The judgment of the Campbell Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Darrell A. Cox
Covington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
16
705 S.W.2d 907 (Ky. 1986).
17
Id. at 908.
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