DUANE HARPER v. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: JUNE 24, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
INDICTMENT NO. 02-CR-00023
COMMONWEALTH OF KENTUCKY
** ** ** ** **
HENRY AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.1
Duane Harper, pro se, appeals from a March 26,
2004 order of the Lyon Circuit Court denying his motion for
relief pursuant to RCr2 11.42.
On January 4, 2002, Harper, an inmate at the Kentucky
State Penitentiary in Eddyville, Kentucky, got into a fight with
Senior Judge Thomas D. 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.
Kentucky Rules of Criminal Procedure.
another inmate in a recreational area of the prison.
leader Frank Wilford, an employee of the prison, attempted to
break up the fight, but was struck in the eye by a punch thrown
Wilford visited the infirmary and was treated and
On August 6, 2002, Harper was indicted on charges of
third-degree assault and for being a second-degree persistent
After initially pleading not guilty to these
charges, Harper, after consulting with his court-appointed
attorney, made a motion to enter a plea of guilty on April 11,
In exchange for his guilty plea, the Commonwealth offered
a plea bargain in which the PFO charge would be dropped and a
recommendation of a three-year sentence would be made on the
Following a plea colloquy with Harper, the
trial court sentenced him to three years’ imprisonment, pursuant
to the Commonwealth’s recommendation, and ordered that the
sentence be consecutive to Harper’s current term of
On February 27, 2004, Harper filed a pro se motion for
relief pursuant to RCr 11.42, claiming ineffective assistance of
On March 26, 2004, the trial court entered an order
denying Harper’s motion for relief without a hearing.
indicated that, upon review of the videotape record of Harper’s
guilty plea hearing, particularly the dialogue between Harper
and the court, it appeared that Harper was “alert” and fully
understood the subject matter of the court’s questions since he
was answering them in a “direct and clear voice.”
indicated that Harper was “unequivocal in expressing that he had
no complaints about his counsel.”
The court further noted that
when Harper was asked if he had ever suffered from a mental
disease or defect, he indicated that he had, but “not at that
moment,” which the court concluded was a clear declaration that
he fully understood the proceedings and what was being asked.
The court finally noted that when Harper was asked whether he
did, in fact, cause “physical injury to an employee at the
Kentucky State Penitentiary,” Harper stated affirmatively that
The court consequently concluded that Harper was
competent at the time he entered his guilty plea and denied his
motion for relief.
Harper filed a motion to reconsider, but
this motion was denied by the trial court in an April 14, 2004
This appeal followed.
On appeal, Harper raises three general grounds for
relief: (1) he was denied the effective assistance of counsel
when his attorney influenced him into entering into a guilty
plea; (2) his counsel’s representation was constitutionally
deficient in that she failed to fully investigate the
circumstances of the charged offenses as well as Harper’s mental
status at the time said offenses were committed; and (3) the
trial court committed reversible error in denying his motion for
relief without conducting an evidentiary hearing.
address each of these contentions in turn.
In determining whether counsel rendered ineffective
assistance in connection with a defendant's guilty plea, this
court has stated:
A showing that counsel's assistance was
ineffective in enabling a defendant to
intelligently weigh his legal alternatives
in deciding to plead guilty has two
components: (1) that counsel made errors so
serious that counsel's performance fell
outside the wide range of professionally
competent assistance; and (2) that the
deficient performance so seriously affected
the outcome of the plea process that, but
for the errors of counsel, there is a
reasonable probability that the defendant
would not have pleaded guilty, but would
have insisted on going to trial.
Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky.App. 1986),
citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985); see also Russell v. Commonwealth, 992 S.W.2d
871, 874 (Ky.App. 1999).
“The trial court's inquiry into
allegations of ineffective assistance of counsel requires the
court to determine whether counsel's performance was below
professional standards and ‘caused the defendant to lose what he
otherwise would probably have won.’”
Bronk v. Commonwealth, 58
S.W.3d 482, 487 (Ky. 2001), quoting Foley v. Commonwealth, 17
S.W.3d 878, 884 (Ky. 2000).
It also requires an evaluation of
"whether counsel was so thoroughly ineffective that defeat was
snatched from the hands of probable victory."
The voluntariness of a guilty plea can only be
determined by examining the “totality of the circumstances
surrounding the guilty plea.”
Id. at 486; see also Rodriquez
v. Commmonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002).
circumstances include the accused’s demeanor, background and
experience, and whether the record reveals that the plea was
D.R. v. Commonwealth, 64 S.W.3d 292, 294
(Ky.App. 2001) (Citations omitted).
We further note our Supreme Court’s mandate that
“[j]udicial review of the performance of defense counsel must be
very deferential to counsel and to the circumstances under which
they are required to operate.
There is always a strong
presumption that the conduct of counsel falls within the wide
range of reasonable professional assistance because hindsight is
Hodge v. Commonwealth, 116 S.W.3 463, 469
(Ky. 2002), citing Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002).
Moreover, simply advising a client to
plead guilty, in and of itself, does not constitute evidence of
ineffective assistance of counsel.
Rigdon v. Commonwealth, 144
S.W.3d 283, 288 (Ky.App. 2004), citing Beecham v. Commonwealth,
657 S.W.2d 234, 236-37 (Ky. 1983).
In Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001),
our Supreme Court summarized the procedure for trial courts to
follow in determining whether or not to conduct an evidentiary
hearing under RCr 11.42.
“After the answer is filed, the trial
judge shall determine whether the allegations in the motion can
be resolved on the face of the record, in which event an
evidentiary hearing is not required.
A hearing is required if
there is a material issue of fact that cannot be conclusively
resolved, i.e., conclusively proved or disproved, by an
examination of the record.”
Id. at 452, citing Stanford v.
Commonwealth, Ky., 854 S.W.2d 742, 743-44 (Ky. 1993); Lewis v.
Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
Our courts have further held that “a defendant is not
entitled to an evidentiary hearing to simply fish for claims,
and such is not warranted if the record resolves all issues
raised in the RCr 11.42 motion.”
Baze v. Commonwealth, 23
S.W.3d 619, 628 (Ky. 2000), citing Glass v. Commonwealth, 474
S.W.2d 400 (Ky. 1972); Ford v. Commonwealth, 453 S.W.2d 551 (Ky.
“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
Sanders v. Commonwealth, 89 S.W.3d 380,
385 (Ky. 2002), citing Sanborn v. Commonwealth, 975 S.W.2d 905
However, our Supreme Court has also held:
“Generally, an evaluation of the circumstances supporting or
refuting claims of coercion and ineffective assistance of
counsel requires an inquiry into what transpired between
attorney and client that led to the entry of the plea, i.e., an
Rodriquez, 87 S.W.3d at 11.
particularly the case where the charge of inadequacy is made
with such particularity as to suggest substance to the charge.
See also McCarthy v. Commonwealth, 432 S.W.2d 50, 50-51 (Ky.
Harper’s first ground for relief, that he was coerced
into entering his guilty plea, revolves around his belief that
his actions did not meet the statutory requirements for
committing assault in the third degree as defined by KRS3
508.025, as he did not intentionally inflict physical injury
upon recreation leader Frank Wilford, and because he did not
spit on Wilford.
Harper submits that Wilford was not injured at
all in the fight, as the generated police report indicates that
no injury occurred and that medical attention was not required.
KRS 500.080(13) provides that “physical injury” means
“substantial physical pain or impairment of physical condition."
This Court has interpreted “impairment of physical condition” to
mean any injury.
Covington v. Commonwealth, 849 S.W.2d 560, 564
(Ky.App. 1992), citing Meredith v. Commonwealth, 628 S.W.2d 887,
888 (Ky.App. 1982).
Accordingly, it is not a difficult standard
Kentucky Revised Statutes.
Our review of the trial record finds that Harper
freely admitted in open court, under oath, to inflicting
physical injury upon Wilford during his guilty plea colloquy.
The record further shows that Wilford was struck in the eye by a
punch thrown by Harper while trying to break up a fight in which
Harper was involved, and that Wilford visited the infirmary
Moreover, a report contained within the
record from Nurse James Baker indicates that Wilford had
“redness and swelling of the left eye and surrounding area.”
While these facts may not constitute the inflicting of a
physical injury in Harper’s personal opinion, and while he may
take issue with the accuracy of Nurse Baker’s statement, we
cannot objectively say that Harper’s counsel rendered advice
below the wide range of prevailing professional standards in
advising him to plead guilty under this factual scenario,
particularly given the deference that we are required to afford
defense counsel under Hodge, supra.
We also note that KRS 508.025(1)(b), the statutory
provision under which Harper was indicted, encompasses wanton
assault along with intentional assault.4
Accordingly, the fact
that Harper may not have intentionally hit Wilford would not
have prevented a jury from finding him guilty of third-degree
KRS 508.025(1)(b) deals specifically with physical assault against a
detention center employee. While it does not expressly state the mens rea
for third-degree assault against a detention center employee, it has been
read in conjunction with KRS 501.040 to require the intentional or wanton
infliction of physical injury. Covington, 849 S.W.2d at 562.
assault under that statute. Consequently, we do not believe that
this particular basis for relief has merit.
We further note that although Harper submits that he
would have elected to proceed to trial had his attorney
“correctly” advised him that his actions did not constitute
third-degree assault, the plea agreement reached with the
Commonwealth limited his sentence to three years (out of a
possible five) and completely eliminated the second-degree
persistent felony offender charge (a conviction that would carry
a possible ten years imprisonment).
Harper’s second basis for relief is that his counsel
rendered ineffective assistance in failing to properly
investigate his mental status at the time of the offense in
question and in waiving his pre-sentence investigation hearing.
Harper submits that such an investigation would have disclosed
that, only days before the incident, he suffered an episode of
psychosis related to his diagnosed paranoid schizophrenia, and
that he was also on state-provided medication, including
Zyprexa, a psychotropic medication used to treat schizophrenia.
He further submits that an appropriate investigation would have
revealed that he was transferred to a correctional psychiatric
treatment unit shortly after the fight because of his paranoid
Harper submitted medical records to the trial
court in support of these contentions.
Upon review of Harper’s guilty plea hearing with the
trial court, it appears that he was coherent and alert in
thought, unaffected by medication, and able to respond
appropriately and logically to the court’s questions.
particular, we note that Harper stated that he was not suffering
from any mental disease or defect as of the time that he was
entering his guilty plea.
Accordingly, we see nothing in the
record to suggest that the trial erred in finding that Harper
was fully capable of making a voluntary plea of guilty at the
plea hearing, particularly given this Court’s belief that the
“trial court is in the best position to determine if there was
any reluctance, misunderstanding, involuntariness, or
incompetence to plead guilty."
S.W.2d 51, 54 (Ky.App. 1990).
Centers v. Commonwealth, 799
We also note that Harper
expressed satisfaction with his counsel’s performance at the
guilty plea colloquy and that his counsel was able to negotiate
what we find to be an advantageous plea agreement on his behalf.
These facts give further credence to the voluntariness and
validity of his guilty plea.
Consequently, we find that Harper has failed to
overcome the strong presumption that his counsel failed to
render reasonably professional assistance and that he would not
have entered his guilty plea otherwise. Given our courts’ longheld position that a valid guilty plea waives all defenses
except that the indictment does not charge a public offense, we
find that Harper’s remaining contentions are without merit.
Bush v. Commonwealth, 702 S.W.2d 46, 48 (Ky. 1986), citing
Hendrickson v. Commonwealth, 450 S.W.2d 234 (Ky. 1970).
Accordingly, the judgment of the Lyon Circuit Court
denying Harper’s petition for RCr 11.42 relief is hereby
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Wm. Robert Long, Jr.
Assistant Attorney General